-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UoaBUBgrlX3RTvBbhhhEt8Z+aLq5+isoy/4YquPPRxTowme+L05K1FS9f/YDtXxc 2KSFlGWqvF8GVkoX463ecw== 0000899140-06-001092.txt : 20060720 0000899140-06-001092.hdr.sgml : 20060720 20060720151741 ACCESSION NUMBER: 0000899140-06-001092 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20060720 DATE AS OF CHANGE: 20060720 GROUP MEMBERS: THOMAS J. BARRACK, JR. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: COLONY RESORTS LVH ACQUISITIONS LLC CENTRAL INDEX KEY: 0001282607 STANDARD INDUSTRIAL CLASSIFICATION: HOTELS & MOTELS [7011] IRS NUMBER: 470924934 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-79851 FILM NUMBER: 06971621 MAIL ADDRESS: STREET 1: 660 MADISON AVENUE STREET 2: SUITE 1600 CITY: NEW YORK STATE: NY ZIP: 10021 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Colony Resorts LVH Coinvestment Voteco, LLC CENTRAL INDEX KEY: 0001290063 IRS NUMBER: 331085054 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1999 AVENUE OF THE STARS STREET 2: SUITE 1200 CITY: LOS ANGELES STATE: CA ZIP: 90067 BUSINESS PHONE: 310-552-7216 MAIL ADDRESS: STREET 1: 1999 AVENUE OF THE STARS STREET 2: SUITE 1200 CITY: LOS ANGELES STATE: CA ZIP: 90067 SC 13D/A 1 c3332584a.txt AMENDMENT NO. 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Amendment No. 1) Under the Securities Exchange Act of 1934* Colony Resorts LVH Acquisitions, LLC - -------------------------------------------------------------------------------- (Name of Issuer) Class A Membership Units - -------------------------------------------------------------------------------- (Title of Class of Securities) Not Applicable - -------------------------------------------------------------------------------- (CUSIP Number) Mark M. Hedstrom, Esq. Colony Capital, LLC 1999 Avenue of the Stars, Suite 1200 Los Angeles, California 90067 (310) 282-8820 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copies to: Thomas M. Cerabino, Esq. Willkie Farr & Gallager LLP 787 Seventh Avenue New York, NY 10019 (212) 728-8000 July 19, 2006 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: [ ] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D - ------------------------- ------------------------ CUSIP No. N/A Page 2 of 5 pages - ------------------------- ------------------------ - ------------- ------------------------------------------------------------------ 1 NAMES OF REPORTING PERSONS ------------------------------------------------------------------ I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only) Colony Resorts LVH Coinvestment Voteco, LLC 33-1085054 - ------------- ------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (See Instructions) (b) [X] - ------------- ------------------------------------------------------------------ 3 SEC USE ONLY - ------------- ------------------------------------------------------------------ 4 SOURCE OF FUNDS (See Instructions) WC - ------------- ------------------------------------------------------------------ 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ------------- ------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ----------------------- ----------- -------------------------------------------- 7 SOLE VOTING POWER 0.30 ----------- -------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY EACH ----------- -------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 0.30 ----------- -------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - ------------- ------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0.30 - ------------- ------------------------------------------------------------------ 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - ------------- ------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 20% - ------------- ------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON (See Instructions) OO - ------------- ------------------------------------------------------------------ SCHEDULE 13D - ------------------------- ------------------------ CUSIP No. N/A Page 3 of 5 pages - ------------------------- ------------------------ - ------------- ------------------------------------------------------------------ 1 NAMES OF REPORTING PERSONS ------------------------------------------------------------------ I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only) Thomas J. Barrack, Jr. - ------------- ------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (See Instructions) (b) [X] - ------------- ------------------------------------------------------------------ 3 SEC USE ONLY - ------------- ------------------------------------------------------------------ 4 SOURCE OF FUNDS (See Instructions) PF - ------------- ------------------------------------------------------------------ 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ------------- ------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - ----------------------- ----------- -------------------------------------------- 7 SOLE VOTING POWER 0.30 ----------- -------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 0 OWNED BY EACH ----------- -------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 0.30 ----------- -------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - ------------- ------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0.30 - ------------- ------------------------------------------------------------------ 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - ------------- ------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 20% - ------------- ------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON (See Instructions) IN - ------------- ------------------------------------------------------------------ This Amendment No. 1 to Schedule 13D ("Amendment No. 1") is filed on behalf of Colony Resorts LVH Coinvestment Voteco LLC, a Delaware limited liability company ("Coinvestment Voteco"), and Thomas J. Barrack, Jr., an individual ("Mr. Barrack" and, together with Coinvestment Voteco, the "Reporting Persons"), and amends the original Schedule 13D filed on June 18, 2004 (the "Schedule 13D"). This Amendment No. 1 relates to the class A voting membership units ("Class A Units") of Colony Resorts LVH Acquisitions, LLC, a Nevada limited liability company (the "Company"). Item 4. Purpose of Transaction. Item 4 of the Schedule 13D is hereby amended by adding thereto the following: Pursuant to a Call Agreement, dated as of June 18, 2004 (the "Call Agreement") by and among Whitehall Street Global Real Estate Limited Partnership 2001, Whitehall Parallel Global Real Estate Limited Partnership 2001, Whitehall Street Global Employee Fund 2001, L.P. (collectively, "Whitehall") and Coinvestment Voteco, Whitehall was granted an option to purchase from Coinvestment Voteco certain Class A Units (the "Call Option"). On July 19, 2006, pursuant to an Assignment and Assumption Agreement and Transfer Document, Whitehall exercised the Call Option and purchased 0.60 Class A Units from Coinvestment for a purchase price of $60. Pursuant to a Joinder Agreement, dated as of July 19, 2006, WH/LVH Managers Voteco LLC, an affiliate of Whitehall, became a party to the LLC Agreement. Item 5. Interest in Securities of the Issuer. Items 5(a) and (b) of the Schedule 13 D is hereby amended and restated in its entirety. (a) (i) As of July 19, 2006, Coinvestment Voteco beneficially owns 0.30 Class A Units representing 20% of the outstanding Class A Units. (ii) As of July 19, 2006, Mr. Barrack, as the member owning the majority-in-interest of the Class A Units of Coinvestment Voteco, is deemed to beneficially own 0.30 Class A Units representing 20% of the outstanding Class A Units. Mr. Barrack is a member and Manger of Coinvestment Voteco and holds a 60% interest in Coinvestment Voteco. In addition to Mr. Barrack, Mr. Ribis is also a member and Manager of Coinvestment Voteco and holds a 40% interest in Coinvestment Voteco. Mr. Ribis, however, is not deemed to be a beneficial owner under Section 13(d)(3) of the Exchange Act because Mr. Barrack, as the majority holder of the Class A Units, has control over voting and investment decisions of the 0.30 Class A Units. In addition, Mr. Barrack is deemed to beneficially own an additional 40% of the outstanding Class A Units since he is a sole member of VoteCo. VoteCo owns 0.60 Class A Units, which represents 40% of the currently outstanding Class A Units. Coinvestment Voteco's power to dispose of such shares is subject to the Transfer Restriction Agreement, pursuant to which Coinvestment Voteco may not transfer any Class A Units, except as provided in such Transfer Restriction Agreement. See "Item 6. Contracts, Arrangements, Understandings of Relationships with Respect to Securities of the Issuer." (b) (i) Coinvestment Voteco has sole power to vote or direct the vote of 0.30 Class A Units. (ii) Mr. Barrack, as the controlling member of Coinvestment Voteco, has sole power to vote or direct the vote of 0.30 Class A Units. In addition, Mr. Barrack has sole power to vote or to direct the vote of 0.60 Class A Units through VoteCo. Item 6. Contracts, Agreements, Understandings or Relationships with Respect to Securities of the Issuer. Item 6 of the Schedule 13D is hereby amended by adding thereto the following: As described in Item 4 hereto, Coinvestment Voteco entered into the Assignment and Assumption Agreement and Transfer Document. The information set forth in Item 4 with respect to the Assignment and Assumption Agreement and the Transfer Document is incorporated into this Item 6 by reference. Item 7. Exhibits 1. Assignment and Assumption Agreement, dated as of July 19, 2006. 2. Transfer Document, dated as of July 19, 2006. 3. Joinder Agreement, dated as of July 19, 2006. SIGNATURES After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct. Dated: July 20, 2006 COLONY RESORTS LVH COINVESTMENT VOTECO, LLC By: /s/ Thomas J. Barrack, Jr. ----------------------------------- Name: Thomas J. Barrack, Jr. Title: Manager /s/ Thomas J. Barrack, Jr. ---------------------------------------- Thomas J. Barrack, Jr. [Signature Page to Amendment No. 1 to Schedule 13D] EX-1 2 c3332584b.txt ASSIGNMENT AND ASSUMPTION AGREEMENT ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of July 19, 2006, is made by and between Colony Resorts LVH Coinvestment Voteco, LLC ("Assignor") and WH/LVH Managers Voteco, LLC ("Assignee"). WITNESSETH: WHEREAS, Assignor owns a 0.90 Class A Membership Units (the "Membership Interest") in Colony Resorts LVH Acquisitions, LLC, a Nevada limited liability company (the "Company") which is subject to that certain Amended and Restated Limited Liability Company Agreement dated as of June 18, 2004, as amended (the "Operating Agreement"); and WHEREAS, Assignor desires to assign to Assignee all of its right, title and interest in and to 0.60 Class A Membership Units (the "Assigned Interest"), and Assignee wishes to accept such assignment. NOW, THEREFORE, in consideration of the terms and covenants set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Assignment and Assumption. a. Assignor hereby assigns to Assignee all right, title and interest of Assignor in and to the Assigned Interest, free and clear of all liens and encumbrances. b. Assignee hereby accepts the Assigned Interest and assumes all of Assignor's obligations relating to such Assigned Interest under the Operating Agreement. c. Assignee shall succeed to the capital account of Assignor relating to the Assigned Interest. 2. Consent. By signing below, the parties each hereby consent, in their capacity as a Member of the Company to the assignment described herein and waives the provisions of Section 2(a) of that certain Transfer Restriction Agreement dated as of June 18, 2004 among Thomas J. Barrack, Jr., Nicholas L. Ribis, Assignor, and Colony Resorts LVH Co-Investment Partners, L.P. 3. Cooperation. Assignor and Assignee agree to take such further action and to execute such further documents and instruments as may be called for in this Agreement or as may be reasonably requested by any party hereto to carry out the intent of this Agreement, including executing a joinder to the Operating Agreement adding Assignee as a party holding the Assigned Interest. 4. Amendments. This Agreement may not be changed, modified, discharged or terminated orally or in any manner other than by an agreement in writing signed by the parties hereto or their respective successors and assigns. 5. Successors and Assigns. This Agreement shall bind and benefit the parties and their respective successors and assigns. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first set forth above. COLONY RESORTS LVH COINVESTMENT VOTECO, LLC By: /s/ Thomas J. Barrack, Jr. ------------------------------------ Name: Thomas J. Barrack, Jr. Title: Member WH/LVH MANAGERS VOTECO LLC By: /s/ Jonathan Langer ------------------------------------ Name: Jonathan Langer Title: Managing Member Acknowledged and Agreed for purposes of Section 2 only: /s/ Thomas J. Barrack, Jr. - ------------------------------- Thomas J. Barrack, Jr. /s/ Nicholas L. Ribis - ------------------------------- Nicholas L. Ribis COLONY RESORTS LVH CO-INVESTMENT PARTNERS, L.P. By: COLONY RESORTS LVH CO-INVESTMENT GENPAR, LLC its general partner By: /s/ Thomas J. Barrack, Jr. ------------------------------- Name: Thomas J. Barrack, Jr. Title: Sole Member EX-2 3 c3332584c.txt TRANSFER DOCUMENT TRANSFER DOCUMENT FOR VALUE RECEIVED, Colony Resorts LVH Coinvestment Voteco, LLC, a Delaware limited liability company, hereby sells, assigns and transfers unto WH/LVH Managers Voteco LLC, a Delaware limited liability company, 0.60 Class A Membership Units in Colony Resorts LVH Acquisitions, LLC, a Nevada limited liability company, standing in its name on the books of Colony Resorts LVH Acquisitions, LLC, a Nevada limited liability company, and irrevocably appoints ________________ as attorney to transfer the ownership interests with full power of substitution in the premises. DATED: July 19, 2006 COLONY RESORTS LVH COINVESTMENT -------------------- VOTECO, LLC By: /s/ Thomas J. Barrack, Jr. ------------------------------------ Name: Thomas J. Barrack, Jr. Title: Member EX-3 4 c3332584d.txt JOINDER AGREEMENT JOINDER AGREEMENT ----------------- THIS JOINDER to the Amended and Restated Limited Liability Company Agreement of Colony Resorts LVH Acquisitions, LLC (the "Company"), dated as of June 18, 2004, as amended by Amendment No. 1 to Amended and Restated Limited Liability Company Agreement dated as of June 23, 2004 (as amended, the "Operating Agreement"), is made as of July __, 2006, by and among WH/LVH Managers Voteco LLC ("Whitehall Voteco") and the Members of the Company. Capitalized terms used herein but not otherwise defined shall have the meanings set forth in the Operating Agreement. WHEREAS, in accordance with the terms of that certain Call Agreement dated as of June 18, 2004, by and among Whitehall Street Global Real Estate Limited Partnership 2001, Whitehall Parallel Global Real Estate Limited Partnership 2001, Whitehall Street Global Employee Fund 2001, L.P. (collectively, "Whitehall") and Colony Resorts LVH Coinvestment Voteco, LLC ("Coinvestment Voteco"), Coinvestment Voteco has assigned a portion of its Class A Membership Units in the Company to Whitehall Voteco pursuant to an Assignment and Assumption Agreement dated of even date herewith; and WHEREAS, the Operating Agreement requires Whitehall Voteco, as a holder of Class A Membership Units, to become a party to the Operating Agreement, and Whitehall Voteco agrees to do so in accordance with the terms hereof. NOW THEREFORE, intending to be legally bound, and for good and valuable consideration the receipt and sufficiency of which is acknowledged, the undersigned hereby agree as follows: 1. Whitehall Voteco agrees that, upon execution of this Joinder Agreement, it shall become a party to the Operating Agreement and shall be fully bound by all the terms and conditions of the Operating Agreement as though an original party thereto and shall be deemed, and is hereby admitted as, a Member for all purposes thereof. Without limiting the generality of the foregoing, Whitehall Voteco hereby makes the representations, warranties and acknowledgements set forth in Section 12 of the Operating Agreement. 2. Schedule A to the Operating Agreement is hereby deleted in its entirety, and replaced with Schedule A attached hereto, effective as of the date hereof. 3. This Joinder Agreement may be executed in separate counterparts each of which shall be an original and all of which taken together shall constitute one and the same instrument. [Signature page follows] IN WITNESS WHEREOF, the undersigned have executed this Joinder Agreement as of the date set forth in the introductory paragraph hereof. Colony Resorts LVH Acquisitions, LLC, a Nevada limited liability company By: /s/ Rodolfo Prieto ----------------------------------- Name: Rodolfo Prieto Title: Chief Executive Officer and General Manager Colony Resorts LVH Voteco, LLC, a Delaware limited liability company By: /s/ Thomas J. Barrack, Jr. ----------------------------------- Name: Thomas J. Barrack, Jr. Title: Sole Member Colony Resorts LVH Coinvestment Voteco, LLC, a Delaware limited liability company By: /s/ Thomas J. Barrack, Jr. ----------------------------------- Name: Thomas J. Barrack, Jr. Title: Member WH/LVH Managers Voteco LLC, a Delaware limited liability company By: /s/ Jonathan Langer ----------------------------------- Name: Jonathan Langer Title: Managing Member Colony Resorts LVH Co-Investment Partners, L.P., a Delaware limited partnership By: Colony Resorts LVH Co-Investment Genpar, LLC, its General Partner By: /s/ Thomas J. Barrack, Jr. ----------------------------------- Name: Thomas J. Barrack, Jr. Title: Sole Member Colony Resorts LVH Holdings, LLC, a Delaware limited liability company By: Colony Investors VI, L.P., its sole member By: Colony Capital VI, L.P., its general partner By: ColonyGP VI, LLC, its general partner By: /s/ Thomas J. Barrack, Jr. ----------------------------------- Name: Thomas J. Barrack, Jr. Title: Sole Member SCHEDULE A ---------- MEMBERSHIP UNITS, CAPITAL CONTRIBUTION AND CAPITAL ACCOUNT FOR THE CLASS A MEMBERS AND CLASS B MEMBERS CLASS A MEMBERSHIP UNITS ------------------------ - ----------------------- ---------------- ------------ --------------- CLASS A CAPITAL CLASS A MEMBER MEMBERSHIP UNITS CONTRIBUTION CAPITAL ACCOUNT - ----------------------- ---------------- ------------ --------------- Voteco 0.60 $60 $60 - ----------------------- ---------------- ------------ --------------- Co-Investment Voteco 0.30 $90 $30 - ----------------------- ---------------- ------------ --------------- Whitehall Voteco 0.60 $-0- $60* - ----------------------- ---------------- ------------ --------------- TOTAL 1.50 $150 $150 - ----------------------- ---------------- ------------ --------------- * By succession from Co-Investment Voteco CLASS B MEMBERSHIP UNITS ------------------------ - ----------------------- ---------------- ------------ --------------- CLASS B CAPITAL INITIAL CLASS B MEMBER MEMBERSHIP UNITS CONTRIBUTION CAPITAL ACCOUNT - ----------------------- ---------------- ------------ --------------- Holdings 600,000 $60,000,000 $60,000,000 - ----------------------- ---------------- ------------ --------------- Co-Investment Partners 900,000 $90,000,000 $90,000,000 - ----------------------- ---------------- ------------ --------------- TOTAL 1,500,000 $150,000,000 $150,000,000 - ----------------------- ---------------- ------------ --------------- Page 3 of 3 -----END PRIVACY-ENHANCED MESSAGE-----