Exhibit 4.7
AMENDMENT NO.1 TO
SECURITY AGREEMENT
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This AMENDMENT NO.1 to SECURITY AGREEMENT, dated as of
February 22, 2002 (the "Amendment"), to that certain Security Agreement dated as
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of February 8, 2002, among GAMECO, INC., (the "Issuer"), EACH OF THE GUARANTORS
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LISTED ON THE SIGNATURE PAGES HERETO (collectively, the "Guarantors"; together
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with the Issuer, the "Pledgors", and each, a "Pledgor"), in favor of WELLS
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FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, in its capacity as Trustee (in such
capacity and together with any successors in such capacity, the "Trustee") under
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the Indenture (as hereinafter defined).
RECITALS:
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A. The Pledgors and the Trustee entered into that certain
security agreement dated as of February 8, 2002 (the "Original Security
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Agreement"), to secure, among other things, payment and performance by the
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Pledgors of all the Secured Obligations (as defined in the Original Security
Agreement).
B. The Pledgors and the Trustee, in connection with the
execution and delivery of the Original Security Agreement, entered into that
certain indenture, dated as of February 8, 2000 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the
"Indenture"), pursuant to which the Issuer issued its 11 7/8% senior secured
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notes due 2009 (the "Senior Secured Notes") in the aggregate principal amount
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of $125,000,000. It is contemplated that the Issuer may, after the date
hereof, issue Additional Notes (as defined in the Indenture) and Exchange Notes
(as defined in the Indenture; the Exchange Notes, together with the Additional
Notes and the Senior Secured Notes, the "Notes"), in each case, pursuant to
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the provisions of the Indenture.
C. The Pledgors have, concurrently with the execution hereof,
consummated the Pending Acquisitions contemplated by the Acquistion Documents
(as each is defined in the Original Security Agreement).
D. The Pledgors and the Trustee desire to amend the Original
Security Agreement (the Original Security Agreement, as amended by this
Amendment, the "Security Agreement"; capitalized terms used but not otherwise
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defined herein shall have the meanings assigned to such terms in the Security
Agreement) in order to, among other things, (i) reflect the consummation of the
Pending Acquisitions, (ii) confirm the attachment of the Lien created by the
Security Agreement on the assets of the Pledgors acquired pursuant to the
Acquisition Documents and (iii) continue and confirm the prior pledge pursuant
to the Original Security Agreement of the Pledged Collateral (as defined in the
Original Security Agreement) as security for the payment and performance of the
Secured Obligations.
AGREEMENT:
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-2-
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
SECTION 1. Each Pledgor hereby (a) confirms and continues the
pledge and security interest in the Pledged Collateral granted by it pursuant to
the Original Security Agreement, (b) acknowledges and agrees that the pledge and
security interest in the Pledged Collateral granted by it pursuant to the
Original Security Agreement shall be in favor of the Trustee and shall continue
to secure the Secured Obligations, (c) represents that contemporaneously with
the execution and delivery of this Amendment (i) in connection with the merger
of BH Acquisition, Inc. with and into Black Hawk Gaming & Development Company,
Inc., the shares BH Acquisition, Inc. are being converted into shares of Black
Hawk Gaming & Development Company, Inc. and (ii) in connection with the merger
of Gameco Acquisition, Inc. with and into Colonial Holdings, Inc. ("Colonial
Holdings"), the shares of Gameco Acquisition, Inc. are being converted into
shares of Colonial Holdings (which, as of the date hereof, constitutes a
Non-Guarantor Restricted Subsidiary under the Indenture) and Gameco Acquisition,
Inc. will no longer be a party to the Security Agreement.
SECTION 2. Amendment
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(a) The Original Security Agreement is hereby amended as
follows:
(i) Schedule 1.l(a) is hereby deleted in its entirety and
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Exhibit A annexed hereto is inserted in lieu thereof;
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(ii) Schedule 1.1(b) is hereby deleted in its entirety and
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Exhibit B annexed hereto is inserted in lieu thereof;
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(iii) Schedule 1.1(c) is hereby deleted in its entirety and
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Exhibit C annexed hereto is inserted in lieu thereof;
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(iv) Schedule 1.1(d) is hereby deleted in its entirety and
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Exhibit D annexed hereto is inserted in lieu thereof;
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(v) Schedule 1.1(e) is hereby deleted in its entirety and
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Exhibit E annexed hereto is inserted in lieu thereof;
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(vi) Schedule 1.1(f) is hereby deleted in its entirety and
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Exhibit F annexed hereto is inserted in lieu thereof;
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(vii) Schedule 1.1(g) is hereby deleted in its entirety and
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Exhibit G annexed hereto is inserted in lieu thereof;
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(viii) Schedule 1.1(h) is hereby deleted in its entirety and
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Exhibit H annexed hereto is inserted in lieu thereof;
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(ix) Schedule 3.4(a) is hereby deleted in its entirety and
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Exhibit I annexed hereto is inserted in lieu thereof;
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(x) Schedule 3.4(b) is hereby deleted in its entirety and
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Exhibit J annexed hereto is inserted in lieu thereof;
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(xi) Schedule 3.4(c) is hereby deleted in its entirety and
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Exhibit K annexed hereto is inserted in lieu thereof;
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(xii) Schedule 3.4(f) is hereby deleted in its entirety and
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Exhibit L annexed hereto is inserted in lieu thereof;
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(xiii) Schedule 4.l3 is hereby deleted in its entirety and
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Exhibit M is inserted in lieu thereof; and
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(xiv) Schedule 6.3 is hereby deleted in its entirety and
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Exhibit N annexed hereto is inserted in lieu thereof;
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(b) Each Pledgor hereby agrees that Pledged Securities,
Intercompany Notes and other items of Pledged Collateral listed on the Exhibits
to this Amendment shall be deemed to be and shall become part of the Pledged
Collateral and shall secure all Secured Obligations.
SECTION 3. Representations and Warranties. The Pledgors
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hereby confirm, reaffirm and restate the representations and warranties made
by it in the Original Security Agreement and all such representations and
warranties are true and correct in all material respects as of the date hereof.
SECTION 4. Miscellaneous.
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(a) This Amendment shall not constitute a consent to or waiver
or modification of any other provision, term or condition of the Security
Agreement.
(b) All terms, provisions, covenants, representations,
warranties, agreements and conditions contained in the Security Agreement shall
remain in full force and effect except as expressly provided herein.
(c) From and after the execution of this Amendment by the
parties hereto, each reference in the Original Security Agreement to "this
Agreement", "hereof", "herein", "hereby" or words of like import referring to
the Security Ageement shall be deemed to be a reference to the Original Security
Agreement as amended by this Amendment.
(d) This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but al1 such
counterparts together shall constitute but one and the same instrument.
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(e) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
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ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
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OF CONFLICT OF LAWS.
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IN WITNESS WHEREOF, the Pledgors and the Trustee have caused
this Amendment to be duly executed and delivered by their duly authorized
officers as of the date first above written.
GAMECO INC.,
as Pledgor
By: /s/ Jeffrey P. Jacobs
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Name: Jeffrey P. Jacobs
Title: President
BH ACQUISTION, INC.,
as a Guarantor and a Pledgor
By: /s/ Jeffrey P. Jacobs
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Name: Jeffrey P. Jacobs
Title: President
GAMECO ACQUISITION, INC.,
as a Guarantor and a Pledgor
By: /s/ Jeffrey P. Jacobs
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Name: Jefrrey P. Jacobs
Title: President
WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By:
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Name:
Title:
N-1
IN WITNESS WHEREOF, the Pledgors and the Trustee have caused
this Amendment to be duly executed and delivered by their duly authorized
officers as of the date first above written.
GAMECO, INC.,
as Pledgor
By: __________________________________
Name: Jeffrey P. Jacobs
Title: President
BH ACQUISTION, INC.,
as a Guarantor and a Pledgor
By: __________________________________
Name: Jeffrey P. Jacobs
Title: President
GAMECO ACQUISITION, INC.,
as a Guarantor and a Pledgor
By: __________________________________
Name: Jeffrey P. Jacobs
Title: President
WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By: /s/ Joseph P. O'Donnell
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Name: JOSEPH P. O'DONNELL
Title: Corporate Trust Officer
EXHIBIT A TO
AMENDMENT NO. 1
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SCHEDULE 1.1(a)
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Initial Pledged Interests
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Pledgor: Gameco, Inc.
PERCENTAGE OF
ALL ISSUED
CAPITAL OR
NUMBER OTHER EQUITY
TYPE OF CERTIFICATE OF INTERESTS OF
ISSUER INTEREST NO(S). SHARES ISSUER
- ----------- ----------- ------------- --------- ----------------
Diversified L.L.C 5 100 100%
Opportunities Group
Ltd.
Pledgor: BH Acquisition, Inc.
PERCENTAGE OF
ALL ISSUED
CAPITAL OR
NUMBER OTHER EQUITY
TYPE OF CERTIFICATE OF INTERESTS OF
ISSUER INTEREST NO(S). SHARES ISSUER
- ----------- ----------- ------------- --------- ----------------
NONE
Pledgor: Gameco Acquisition, Inc.
PERCENTAGE OF
ALL ISSUED
CAPITAL OR
NUMBER 0THER EQUITY
TYPE OF CERTIFICATE OF INTERESTS OF
ISSUER INTEREST NO(S). SHARES ISSUER
- ----------- ----------- ------------- --------- ---------------
NONE
A-1
EXHIBIT B TO
AMENDMENT NO- 1
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SCHEDULE 1.1(b)
Initial Pledged Shares
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Pledgor: Gameco, Inc
Intercompany Notes
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PERCENTAGE OF
ALL ISSUED
CAPITAL OR
NUMBER OTHER EQUITY
CLASS OF CERTIFICATE OF INTERESTS OF
ISSUER STOCK NO(s). SHARES ISSUER
- -------------------- ------------ ----------- ----------- ---------------
Black Hawk Gaming & Common 2 1,000 100%
Development Company, Inc.
Jalou II Inc. Common 3 1,000 100%
Pledgor: BH Acquisition, Inc.
NONE
Pledgor: Gameco Acquisition, Inc.
NONE
B-1
EXHIBIT C TO
AMENDMENT NO. 1
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SCHEDULE 1.1(c)
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Initial Intercompany Notes and Supporting Obligations
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Pledgor: Gameco, Inc.
Intercompany Notes
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PRINCIPAL DATE 0F MATURITY
ISSUER AMOUNT ISSUANCE INTEREST RATE DATE
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Colonial Holdings, $ 5,700,000 February 22, 2002 9.96% February 1, 2009
Inc.
Colonial Downs, L.P. $10,000,000 February 22, 2002 9.96% February 1, 2009
Supporting Obligations
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Amended and Restated Term Notes by and between Colonial Holdings, Inc. and
Gameco, Inc. dated as of February 22, 2002.
Amended and Restated Term Notes by and between Colonial Downs, LP and Gameco,
Inc. dated as of February 22, 2002.
Pledgor: BH Acquisition, Inc.
NONE
Pledgor: Gameco Acquisition, Inc.
NONE
C-1
EXHIBIT D TO
AMENDMENT NO.1
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SCHEDULE 1.1(d)
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Prior Liens
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FILE
DEBTOR JURISDICTION SECURED PARTY NUMBER/DATE COLLATERAL
- --------- --------------- --------------- ------------- -------------
Pledgor: Gameco, Inc.
NONE
Pledgor: BH Acquisition, Inc.
NONE
Pledgor: Gameco Acquisition, Inc.
NONE
D-1
EXHIBIT E TO
AMENDMENT NO. 1
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SCHEDULE 1.1(e)
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Copyrights
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REGISTRATION/
REGISTRATION/ APPLICATION
APPLICATION NO. DATE COPYRIGHTS COUNTRY DESCRIPTION
- --------------- ------------- ---------- ------- -----------
Pledgor: Gameco, Inc.
NONE
Pledgor: BH Acquisition, Inc.
NONE
Pledgor: Gameco Acquisition, Inc.
NONE
E-1
EXHIBIT F TO
AMENDMENT NO. 1
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SCHEDULE 1.1(f)
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Licenses
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NAME OF AGREEMENT PARTIES DATE OF AGREEMENT
- ----------------- ------- -----------------
Pledgor: Gameco, Inc.
NONE
Pledgor: BH Acquisition, Inc.
NONE
Pledgor: Gameco Acquisition, Inc.
NONE
F-1
EXHIBIT G TO
AMENDMENT NO. 1
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SCHEDULE 1.1(g)
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Patents
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Registrations:
REGISTRATION REGISTRATION
NUMBER DATE COUNTRY DESCRIPTION
------------ ------------ ------- -----------
Pledgor: Gameco, Inc.
NONE
Pledgor: BH Acquisition, Inc.
NONE
Pledgor: Gameco Acquisition, Inc.
NONE
Applications:
APPLICATION APPLICATION
NUMBER DATE COUNTRY DESCRIPTION
----------- ----------- ------- -----------
Pledgor: Gameco, Inc.
NONE
Pledgor: BH Acquisition, Inc.
NONE
Pledgor: Gameco Acquisition, Inc.
NONE
G-1
EXHIBIT H TO
AMENDMENT NO. 1
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SCHEDULE 1.1(h)
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Trademarks
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Registrations:
REGISTRATION REGISTRATION
NUMBER DATE COUNTRY DESCRIPTION
- -------------- ------------ ------- -----------
Pledgor: Gameco, Inc.
NONE
Pledgor: BH Acquisition, Inc.
NONE
Pledgor: Gameco Acquisition, Inc.
NONE
Applications:
APPLICATION APPLICATION
NUMBER DATE COUNTRY DESCRIPTION
- ------------- ------------ ------- -----------
Pledgor: Gameco, Inc.
NONE
Pledgor: BH Acquisition, Inc.
NONE
Pledgor: Gameco Acquisition, Inc.
NONE
H-1
EXHIBIT I TO
AMENDMENT NO. 1
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SCHEDULE 3.4(a)
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Instruments and Tangible Chattel Paper
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Pledgor: Gameco, Inc.
NONE
Pledgor: BH Acquisition, Inc.
NONE
Pledgor: Gameco Acquisition, Inc.
NONE
I-1
EXHIBIT J TO
AMENDMENT NO. 1
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SCHEDULE 3.4(b)
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Initial Deposit Accounts
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Pledgor: Gameco, Inc.
NONE
Pledgor: BH Acquisition, Inc.
NONE
Pledgor: Gameco Acquisition, Inc.
NONE
J-1
EXHIBIT K TO
AMENDMENT NO. 1
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SCHEDULE 3.4(c)
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Initial Securities Accounts and Commodity Accounts
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Pledgor: Gameco, Inc.
NONE
Pledgor: BH Acquisition, Inc.
NONE
Pledgor: Gameco Acquisition, Inc.
NONE
K-1
EXHIBIT L TO
AMENDMENT NO. 1
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SCHEDULE 3.4(f)
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Commercial Tort Claims
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Pledgor: Gameco, Inc.
NONE
Pledgor: BH Acquisition, Inc.
NONE
Pledgor: Gameco Acquisition, Inc.
NONE
L-1
EXHIBIT M TO
AMENDMENT NO. 1
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SCHEDULE 4.13
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Required Consents
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Pledgor: Gameco, Inc.
NONE
Pledgor: BH Acquisition, Inc.
NONE
Pledgor: Gameco Acquisition, Inc.
NONE
M-1
EXHIBIT N TO
AMENDMENT NO. 1
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SCHEDULE 6.3
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Violations or Proceedings
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Pledgor: Gameco, Inc
NONE
Pledgor: BH Acquisition, Inc.
NONE
Pledgor: Gameco Acquisition, Inc.
NONE
N-1