Exhibit 4.29
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT, dated as of July 12, 2002 (this
"Agreement"), is made by and between WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, in its capacity as trustee under the Indenture (as defined below)
and the Collateral Documents (as defined in the Indenture) (together with its
successors in such capacities, the "Trustee"), and FOOTHILL CAPITAL CORPORATION,
as lender (the "Lender") under the Credit Agreement (as defined below).
RECITALS
WHEREAS, Jacobs Entertainment, Inc. (f/k/a Gameco, Inc.), a
Delaware corporation (the "Company"), has issued $125,000,000 aggregate
principal amount of its 11 7/8% Senior Secured Notes due 2009 (together with any
additional 11 7/8% Senior Secured Notes due 2009 of the Company issued pursuant
to the Indenture including, without limitation, in exchange for outstanding
Notes, the "Notes") and certain of the Company's subsidiaries have guaranteed
the Notes (together with any future subsidiary guarantors, the "Guarantors" and
together with the Company, the "Issuers"), in each case pursuant to an Indenture
dated as of February 8, 2002 among the Issuers and the Trustee (the
"Indenture"). All of the Issuers' obligations under the Notes and the other
Indenture Documents (as defined below) are secured by liens on and security
interests in all of the now existing and hereafter acquired real and personal
property of the Issuers now or hereafter made subject to the Lien of the
Indenture Documents (the "Noteholder Collateral");
WHEREAS, as of July 12, 2002, certain of the Issuers and the
Credit Facility Secured Party (as defined below) entered into that certain Loan
and Security Agreement, dated as of July 12, 2002 (the "Credit Agreement"),
whereby the Credit Facility Secured Party agreed, upon the terms and conditions
stated therein, to make loans and advances to, or to issue letters of credit (or
guaranties in respect thereof) for the account of, one or more Credit Parties,
in an aggregate principal and undrawn amount not to exceed the Maximum Amount
(as defined below), the repayment of which is secured by security interests in
and liens on the Credit Agreement Collateral (as defined below) in accordance
with the Credit Agreement and the collateral security documents, including deeds
of trust, instruments and guaranties executed and delivered in connection
therewith by the Credit Parties, and such other agreements, instruments and
certificates now or hereafter entered into in connection with the Credit
Agreement (the "Loan Documents");
WHEREAS, one of the conditions of the Credit Agreement is that
the priority of the security interests in and liens on the Credit Agreement
Collateral under the Credit Facility Loan Documents be senior to the security
interests in and liens on the Credit Agreement Collateral granted to the Trustee
for its benefit and for the benefit of the Holders (as hereinafter defined)
pursuant to the Indenture Documents in the manner and to the extent provided for
in this Agreement;
WHEREAS, the Trustee and the Credit Facility Secured Party
desire to enter into this Agreement concerning their respective rights with
respect to the priority of their respective security interests in and liens on
the Credit Agreement Collateral; and
WHEREAS, the terms of the Indenture permit the Issuers to
enter into the Credit Agreement and, in connection therewith, authorize and
direct the Trustee to enter into an intercreditor agreement in the form of this
Agreement.
NOW, THEREFORE, the Parties hereby agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the
following terms shall have the respective meanings set forth below:
"Agreement" means this Intercreditor Agreement.
"Company" has the meaning set forth in the recitals.
"Credit Agreement" has the meaning set forth in the recitals,
as the same may be amended, restated, extended, renewed, replaced, refinanced,
supplemented or otherwise modified from time to time.
"Credit Agreement Collateral" means the property and assets
described on Schedule I annexed hereto.
"Credit Facility Indebtedness" means all present and future
obligations, contingent or otherwise, of the Credit Parties to the Credit
Facility Secured Party arising under or pursuant to the Credit Facility Loan
Documents, including, in each case, interest, fees and expenses accruing after
the initiation of any Insolvency Proceeding (irrespective of whether allowed as
a claim in such proceeding), and including the secured claims of the Credit
Facility Secured Party in respect of the Credit Agreement Collateral in any
Insolvency Proceeding.
"Credit Facility Loan Documents" means the Credit Agreement
and the Loan Documents, as any or all of the same may be amended, modified,
restated, extended, renewed, replaced or refinanced or supplemented or otherwise
modified from time to time.
"Credit Facility Secured Party" means the Lender and each
Person now or hereafter owning all or part of the Credit Facility Indebtedness.
"Credit Parties" means the Company and those subsidiaries of
the Company that are a party to the Credit Facility Loan Documents.
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"Enforcement Action" means, with respect to any Party, (a)
commencement of any action, whether judicial or otherwise, for the enforcement
of such Party's rights and remedies as a secured creditor with respect to the
Credit Agreement Collateral, including commencement of any receivership or
Foreclosure Action against or any other sale of, collection on or disposition
of, any Credit Agreement Collateral, or any exercise of remedies with respect to
the Credit Agreement Collateral under the Indenture Documents or the Credit
Facility Loan Documents; or (b) notifying any third-party account debtors with
respect to Credit Agreement Collateral of any Issuer or any Credit Party or any
of their respective subsidiaries to make payment directly to such Party or to
any of its agents or other Persons acting on its behalf.
"Enforcement Event" means the occurrence and continuance of an
Event of Default.
"Enforcement Event Notice" has the meaning set forth in
Section 3.2(a).
"Entitled Party" has the meaning set forth in Section 4.1(a).
"Event of Default" has the meaning set forth in the Financing
Documents.
"Expiry Date" has the meaning set forth in Section 3.2(b).
"Financing Documents" means the Indenture Documents and the
Credit Facility Loan Documents.
"Foreclosure Action" means any action to foreclose upon or
enforce a Lien against any of the Credit Agreement Collateral, including (a)
commencing judicial or non judicial foreclosure proceedings, (b) exercising any
rights afforded to secured creditors in a case under the Bankruptcy Code with
respect to the Credit Agreement Collateral, or (c) taking any action under the
Bankruptcy Code that directly relates to or directly affects any such Credit
Agreement Collateral, other than any such action that relates to or affects all
or substantially all of the property of the bankruptcy estate.
"Fully Paid" means the payment in cash or cash equivalents in
full of all obligations (other than indemnity obligations that survive payment
in full) under the Credit Facility Loan Documents or the Indenture Documents, as
the case may be, and in the case of the Credit Facility Loan Documents, at such
time when there shall no longer be any obligation to make loans or advances or
issue letters of credit (or guaranties in respect thereof) thereunder and there
shall no longer be any letter of credit (or guaranty in respect thereof)
outstanding thereunder or such letter of credit (or guaranty in respect thereof)
shall have been fully cash collateralized (in accordance with the provisions of
the Credit Facility Loan Documents).
"Guarantors" has the meaning set forth in the recitals.
"Holders" means the registered holders of the Notes from time
to time.
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"Indenture" has the meaning set forth in the recitals, as the
same may be amended, restated, extended, renewed, replaced, refinanced,
supplemented or otherwise modified from time to time.
"Indenture Documents" means the Indenture, the Notes, the
Collateral Documents and the Registration Rights Agreement, and such other
agreements, instruments and certificates executed and delivered (or issued) by
any Issuer pursuant to the Indenture or in connection therewith, as any or all
of the same may be amended, restated, extended, renewed, replaced, refinanced,
supplemented or otherwise modified from time to time.
"Insolvency Proceeding" means any proceeding for the purposes
of dissolution, winding up, liquidation, arrangement or reorganization of any
Issuer or any subsidiary of any Issuer, or their respective successors or
assigns, whether in bankruptcy, insolvency, arrangement, reorganization or
receivership proceedings, or upon an assignment for the benefit of creditors or
any other marshaling of the assets and liabilities of any Issuer or any
subsidiary of an Issuer, or their respective successors or assigns.
"Issuers" has the meaning set forth in the recitals.
"Lender" has the meaning set forth in the preamble.
"Lien Priority" means, with respect to any Lien in and to the
Credit Agreement Collateral, the order of priority of such Lien as specified in
Sections 2.1 and 2.2.
"Loan Documents" has the meaning set forth in the recitals.
"Maximum Amount" has the meaning set forth in Section 2.1(b).
"Noteholder Collateral" has the meaning set forth in the
recitals.
"Party" means any signatory to this Agreement.
"Secured Liability" means the Subordinated Lien Indebtedness
and the Credit Facility Indebtedness.
"Subordinated Lien Indebtedness" means all present and future
obligations, contingent or otherwise, of the Issuers to the Trustee or Holders
arising under or pursuant to the Indenture Documents, including, in each case,
interest, fees and expenses accruing after the initiation of any Insolvency
Proceeding (irrespective of whether allowed as a claim iii such proceeding), and
including the secured claims of the Trustee or the Holders in respect of the
Credit Agreement Collateral in any Insolvency Proceeding.
"Trigger Date" means the earlier of (i) the date on which an
event contemplated by clause (b) or (c) of the definition of Trigger Event
occurs, (ii) the date on which an Enforcement Event Notice is delivered, and
(iii) the final maturity date of
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the Credit Facility Indebtedness (after giving effect to any extensions granted
thereunder).
"Trigger Event" means:
(a) the occurrence of an Event of Default,
(b) the acceleration of the maturity of the Credit
Facility Indebtedness by the Credit Facility Secured Party pursuant to the
Credit Agreement, or
(c) the commencement of any action or proceeding by
the Credit Facility Secured Party, whether judicial or otherwise (but excluding
demands for payment or notices of default), for the enforcement of the Credit
Facility Secured Party's rights and remedies under any of the Credit Facility
Loan Documents, including (i) commencement of any receivership or Foreclosure
Action against or any other sale of, collection on or disposition of any Credit
Agreement Collateral, including any notification to third parties to make
payment directly to the Credit Facility Secured Party or to any of its agents or
other Person acting on its behalf; (ii) exercise of any right of set-off; (iii)
commencement of any Insolvency Proceeding; and (iv) commencement of any judicial
action or proceeding against any Issuer or any subsidiary of any Issuer to
recover all or any part of the Credit Facility Indebtedness.
"Trustee" has the meaning set forth in the preamble.
Section 1.2 Indenture Definitions. All other capitalized terms
that are used but not defined herein have the respective meanings ascribed to
such terms in the Indenture. Any modifications to such definitions which
adversely affect the Credit Facility Secured Party after the date hereof shall
not be effective under this Agreement without the consent of the Credit Facility
Secured Party.
Section 1.3 Miscellaneous. All definitions herein (whether set
forth herein directly or by reference to definitions in other documents) shall
be equally applicable to both the singular and the plural forms of the terms
defined. The words "hereof," "herein" or "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement. Article and section references are
to articles and sections of this Agreement unless otherwise specified. The term
"including" means "including without limitation."
ARTICLE II.
LIEN PRIORITY
Section 2.1 Acknowledgment of Liens; Agreement to Subordinate
Liens.
(a)The Credit Facility Secured Party hereby
acknowledges that the Trustee has been granted Liens upon all of the Noteholder
Collateral (including,
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without limitation, the Credit Agreement Collateral) pursuant to the Indenture
Documents and hereby represents and warrants to the Trustee that the Credit
Facility Secured Party has not been granted any Liens upon any Noteholder
Collateral other than the Credit Agreement Collateral. The Trustee hereby
acknowledges that the Credit Facility Secured Party has been granted Liens upon
all of the Credit Agreement Collateral pursuant to the Credit Facility Loan
Documents.
(b) The Trustee hereby agrees that the Liens of the
Trustee for the benefit of itself and the Holders in and to the Credit Agreement
Collateral are and shall be subordinate in priority to the Liens of the Credit
Facility Secured Party in and to the Credit Agreement Collateral securing the
Credit Facility Indebtedness up to, but not in excess of, $10,000,000 of
principal Indebtedness outstanding under the Credit Agreement and, in addition
thereto, related interest, fees, costs and expenses (such principal, together
with such additional amounts, the "Maximum Amount"); provided that the rights of
the Credit Facility Secured Party under this Agreement shall be void and of no
further force and effect if, and only to the extent that, the Liens of the
Credit Facility Secured Party in and to the Credit Agreement Collateral are
avoided, disallowed, set aside or otherwise invalidated in any action or
proceeding by a court, tribunal or administrative agency of competent
jurisdiction. The subordination of the Liens of the Trustee for the benefit of
itself and the Holders in and to the Credit Agreement Collateral in favor of the
Credit Facility Secured Party provided for herein shall not be deemed to (a)
subordinate the Liens of the Trustee to the Liens of any other Person; or (b)
subordinate the Subordinated Lien Indebtedness to any Indebtedness including the
Credit Facility Indebtedness.
Section 2.2 No Contest; Excluded Assets. Each Party agrees
that it will not attack or contest the validity, perfection, priority or
enforceability of the Liens of the other Party or finance or urge any other
Person to do so; provided that either Party may enforce its rights and
privileges hereunder without being deemed to have violated this provision.
Section 2.3 Exercise of Rights.
(a) For so long as the Credit Agreement is in effect,
and except as expressly set forth herein, and in all events subject to the terms
hereof, the right of the Credit Facility Secured Party to exercise any rights,
remedies or options with respect to all or any part of the Credit Agreement
Collateral, to conduct any and all proceedings with respect to all or any part
of the Credit Agreement Collateral, and to otherwise deal in or with all or any
part of the Credit Agreement Collateral shall be paramount to the rights of the
Trustee to do any such acts, and the Trustee shall take no action with respect
to the Credit Agreement Collateral inconsistent with this Agreement or that in
any way impairs the Credit Facility Secured Party's rights hereunder.
(b)The Trustee may exercise, and nothing herein shall
constitute a waiver of, any right it may have at law or in equity to receive
notice of, or to commence or join with any creditor in commencing, any
Insolvency Proceeding; provided that the exercise of any such right by the
Trustee shall be (i) subject to the Lien
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Priority and the application of proceeds of Credit Agreement Collateral under
Section 3.4, and (ii) subject to the provisions of Sections 3.1 and 3.2.
(c) Notwithstanding any other provision hereof, the
Trustee may make such demands or file such claims as may be necessary to prevent
the waiver or bar of such claims under applicable statutes of limitations or
other statutes, court orders or rules of procedure.
Section 2.4 Priority of Liens. Irrespective of the order of
recording of mortgages, financing statements, security agreements or other
instruments, and irrespective of the descriptions of collateral contained in the
Financing Documents, including any financing statements or any other reason
whatsoever, the Parties agree among themselves that (i) their respective Liens
in the Credit Agreement Collateral shall be governed by the Lien Priority, and
(ii) the Credit Facility Secured Party shall have no Liens (to the extent
arising out of an express grant of a security interest by any Credit Party) on
the Noteholder Collateral other than Credit Agreement Collateral. The agreement
set forth in clauses (i) and (ii) of the immediately preceding sentence and
elsewhere in this Agreement shall be controlling in the event of any conflict
between this Agreement and any of the Financing Documents.
ARTICLE III.
ACTIONS OF THE PARTIES
Section 3.1 Limitation on Certain Actions. Subject to Section
3.2, until the earlier of (a) the date on which all Credit Facility Indebtedness
is Fully Paid, and (b) the first date following the date on which the Maximum
Amount of Credit Facility Indebtedness is Fully Paid, the Trustee will not,
without the prior written consent of the Credit Facility Secured Party, take any
Enforcement Action.
Section 3.2 Standstill Period.
(a) If an Enforcement Event has occurred and is
continuing, the Trustee, on behalf of the Holders, will give the Credit Facility
Secured Party written notice thereof (an "Enforcement Event Notice").
(b) The Trustee may, subject to the Lien Priority and
the application of all proceeds of the Credit Agreement Collateral in accordance
with Section 3.4, take one or more Enforcement Actions so long as:
(i) (A) an Enforcement Event is continuing for
more than 180 consecutive days after the delivery of such Enforcement Event
Notice (the "Expiry Date"), (B) the Credit Facility Secured Party has not, on or
before the Expiry Date, commenced one or more Enforcement Actions, and (C) no
Issuer against which the Trustee's proposed Enforcement Action is to be taken is
the subject of an Insolvency Proceeding; or
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(ii) the Credit Facility Secured Party has
commenced any Enforcement Action or prior to the Expiry Date and, at any time
after the Expiry Date, is no longer pursuing any Enforcement Actions, (B) no
Insolvency Proceeding is pending against any Issuer against which the Trustee's
proposed Enforcement Action is to be taken, and (C) the Enforcement Event that
was the subject of, or existing on the date of, the Enforcement Event Notice is
then continuing.
(c) Except as expressly provided for in this
Agreement, nothing in this Agreement shall prevent the Parties hereto from
exercising any other remedy, or taking any other action, under any of the
Financing Documents.
(d) Notwithstanding any other provision of this
Agreement, the Credit Facility Secured Party waives any and all rights or
remedies relating to the Noteholder Collateral except the Credit Agreement
Collateral.
Section 3.3 Foreclosure. Any Party taking a permitted
Foreclosure Action may enforce its Financing Documents independently as to each
Issuer and each Credit Party and independently of any other remedy or security
(so long as such remedy or security does not conflict with the other provisions
of this Agreement) such Party at any time may have or hold in connection with
its Secured Liabilities, and it shall not be necessary for such Party to marshal
assets in favor of the other Party or any other Person or to proceed upon or
against or exhaust any other security or remedy before proceeding to enforce the
Financing Documents. Each of the Trustee (for so long as the Credit Facility
Indebtedness is not Fully Paid) and the Credit Facility Secured Party (for so
long as the Trustee and the Holders are owed any Subordinated Lien Indebtedness)
expressly waives any right to require the other Party to marshal assets in its
favor or to proceed against any Credit Agreement Collateral provided by any
Issuer or Credit Party and agrees that the Party taking such permitted
Foreclosure Action may proceed against any Issuer or Credit Party, any Credit
Agreement Collateral, in such order as it shall determine in its sole and
absolute discretion. The Credit Facility Secured Party expressly waives the
right to require the Trustee to marshal assets in its favor or to proceed
against any property, assets or collateral (other than Credit Agreement
Collateral) of, or provided by, any Issuer or Credit Party or any other Person
(such property, assets or collateral, including, without limitation, the
Noteholder Collateral but excluding the Credit Agreement Collateral, the "Other
Assets") and agrees that the Trustee may proceed against any Issuer, or Credit
Party or other Person or any Other Assets in such order as it shall determine in
its sole and absolute discretion. The foregoing notwithstanding: (a) with
respect to the sale or other disposition of any Credit Agreement Collateral
governed by Article 9 of the Uniform Commercial Code, the Party conducting such
sale or other disposition agrees in favor of the other Party to conduct such
sale or other disposition in a commercially reasonable manner; (b) with respect
to the sale or other disposition of any other Credit Agreement Collateral, the
Party conducting such sale or other disposition agrees in favor of the other
Party that such sale or other disposition shall be conducted according to the
normal practices of commercial real property secured lenders generally; (c) with
respect to the sale or other disposition of any Credit Agreement Collateral by
either Party, such Party agrees to provide the other Party with such written
notice as it is required by applicable law (including, if applicable, the
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Uniform Commercial Code) to provide to any Issuer or any Credit Party (without
regard to whether any Issuer or any Credit Party has waived its entitlement to
receive such notice); and (d) the Credit Facility Secured Party agrees that, at
such time as all Credit Facility Indebtedness is Fully Paid, the Credit Facility
Secured Party thereupon promptly shall cease all further Foreclosure Actions.
Section 3.4 Distribution. Each Party agrees that, upon any
distribution as a result of a Foreclosure Action, or the receipt of any other
payment or distribution with respect to the Credit Agreement Collateral, the
proceeds thereof shall be distributed in the order of, and in accordance with,
the following priorities:
(a) First:
(i) if the Foreclosure Action is taken by the
Credit Facility Secured Party, to the payment of all reasonable costs and
expenses, commissions and taxes of the Credit Facility Secured Party incurred in
connection with taking any such Foreclosure Action or other realization,
including all reasonable expenses (including attorneys' fees and expenses),
liabilities and advances made or incurred by the Credit Facility Secured Party
in connection therewith;
(ii) if the Foreclosure Action is taken and
entitled to be taken hereunder by the Trustee, to the payment of all reasonable
costs and expenses, commissions and taxes of the Trustee incurred in connection
with taking any such Foreclosure Action or other realization, including all
reasonable expenses (including attorneys' fees and expenses), liabilities and
advances made or incurred by the Trustee in connection therewith;
(b) Second, to the Credit Facility Secured Party,
until the earlier of (i) the Credit Facility Indebtedness being Fully Paid, and
(ii) the first time following the date at which the Maximum Amount of Credit
Facility Indebtedness is Fully Paid;
(c) Third, to the Trustee, until all Subordinated
Lien Indebtedness is Fully Paid; and
(d) Fourth, to the Credit Facility Secured Party
until all outstanding Credit Facility Indebtedness in excess of the Maximum
Amount is Fully Paid.
Section 3.5 Notice of Certain Events. Each Party agrees that
it will notify the other Party, in writing, if it receives actual notice of the
occurrence of a Trigger Event or Enforcement Event, not later than 30 days after
the date of actual notice of any such occurrence. The Trustee agrees that it
will provide the Credit Facility Secured Party written notice at least 15 days
prior to exercising any remedies with respect to any portion of the Credit
Agreement Collateral. The Credit Facility Secured Party will provide the Trustee
with such advance written notice as is reasonably practicable under the
circumstances prior to exercising any remedies with respect to any portion of
the Credit Agreement Collateral. Notwithstanding the foregoing, (a) the Credit
Facility
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Secured Party shall not be obligated to provide such prior written notice if
exigent circumstances require that the Credit Facility Secured Party act
immediately in order to preserve, protect, or obtain possession or control over
the Credit Agreement Collateral or any portion thereof or such notice is not
reasonably practicable in the circumstances; provided that if the Credit
Facility Secured Party does not provide any advance written notice prior to
exercising any remedies with respect to any portion of the Credit Agreement
Collateral, the Credit Facility Secured Party agrees to provide the Trustee with
written notice as soon as practicable following the Credit Facility Secured
Party first exercising any of its secured creditor remedies with respect to the
Credit Agreement Collateral; and (b) no Party shall incur any liability to the
other under this Section 3.5 as a result of the failure of such Party to provide
any such notice so long as the failure to so provide such notice was not the
result of willful misconduct, bad faith or gross negligence.
ARTICLE IV.
ENFORCEMENT OF PRIORITIES
Section 4.1 In Furtherance of Lien Priorities. Each Party
agrees as follows:
(a) All payments or distributions of or with respect
to the Credit Agreement Collateral that are received by any Party contrary to
the provisions of this Agreement shall be segregated from other funds and
property held by such Party and shall be held in trust for the Party entitled
thereto (the "Entitled Party") in accordance with the provisions of Section 3.4
and such Party shall forthwith pay over such remaining proceeds to the Entitled
Party in the same form as so received (with any necessary endorsement) to be
applied (in the case of cash) or held as collateral (in the case of non-cash
property or securities) in accordance with the provisions hereof and the
provisions of the applicable Financing Documents. In the event the Credit
Agreement Secured Party receives any payments or distributions of, or with
respect to, any Noteholder Collateral (other than Credit Agreement Collateral),
the Credit Agreement Secured Party shall segregate such payments or
distributions from other funds and property held by the Credit Agreement Secured
Party and such payments or distributions shall be held in trust for the Trustee
and the Credit Agreement Secured Party shall forthwith pay over such payments or
distributions to the Trustee in the same form as so received (with any necessary
endorsement) to be applied or held as collateral in accordance with the
provisions of the Indenture Documents.
(b) After the earlier of (i) the date on which all
Credit Facility Indebtedness is Fully Paid, and (ii) the first date following
the Trigger Date on which the Maximum Amount of Credit Facility Indebtedness is
Fully Paid, the Credit Facility Secured Party will promptly execute and deliver
all further instruments and documents, and take all further acts that may be
necessary, or that the Trustee may reasonably request, to permit the Trustee to
evidence the termination of the Lien Priority hereunder, or in furtherance
thereof; provided that (x) the Credit Facility Secured Party shall not be
required to pay over any payment or distribution, execute any instruments or
documents,
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or take any other action referred to in this Section 4.1(b) to the extent that
such action would contravene any law, order or other legal requirement, and in
the event of a controversy or dispute, the Credit Facility Secured Party may
interplead any payment or distribution in any court of competent jurisdiction;
and (y) the Credit Facility Secured Party shall not incur any liability to the
Trustee for failure to provide any such further instruments and documents or
take any further acts, so long as the failure to provide any such further
instruments and documents or take any such further act was not the result of
malfeasance, willful misconduct or gross negligence.
(c) Each Party is hereby authorized to demand
specific performance of this Agreement, whether or not any Issuer or Credit
Party shall have complied with any of the provisions hereof applicable to it, at
any time when either Party shall have failed to comply with the provisions of
this Agreement applicable to it; provided that the remedy of specific
performance shall not be available, and the asserting Party shall be free to
assert any and all legal defenses it may possess, if such remedy would result
in, or otherwise constitute, a violation of the Employee Retirement Income
Security Act of 1974, as amended. Each Party hereby irrevocably waives any
defense based on the adequacy of a remedy at law, which might be asserted as a
bar to such remedy of specific performance.
(d) This Agreement shall continue to be effective or
be reinstated, as the case may be, if at any time any payment of any of the
Secured Liabilities is, other than as a result of any intentional fraud or gross
negligence of the applicable Party, rescinded or must otherwise be returned by
the applicable Party upon the insolvency, bankruptcy or reorganization of any
Issuer or any Credit Party or otherwise, all as though such payment had not been
made.
Section 4.2 Perfection of Possessory Security Interests.
(a) For the limited purpose of perfecting the
security interests of the Parties in those types or items of Credit Agreement
Collateral in which a security interest only may be perfected by possession or
control, each Party hereby appoints the other as its representative for the
limited purpose of possessing on its behalf any such Credit Agreement Collateral
that may come into the possession or control of such other Party from time to
time, and each Party agrees to act as the other's representative for such
limited purpose of perfecting the other's security interest by possession or
control through a representative, provided that neither Party shall incur any
liability to the other by virtue of acting as the other's representative
hereunder. In this regard, any Party that is in possession or control of any
such item of Credit Agreement Collateral agrees that if it elects to relinquish
possession or control of such item of Credit Agreement Collateral it shall
deliver possession or control thereof to the other Party; provided that neither
Party shall be required to deliver any such item of Credit Agreement Collateral
or take any other action referred to in this section to the extent that such
action would contravene any law, order or other legal requirements, and in the
event of a controversy or dispute, such Party may interplead any item of Credit
Agreement Collateral in any court of competent jurisdiction.
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(b) In the event the Credit Agreement Secured Party
receives any items or types of Noteholder Collateral (other than Credit
Agreement Collateral) in which a security interest may only be perfected by
possession or control, the Trustee hereby appoints the Credit Agreement Secured
Party as its representative for the limited purposes of possessing or
controlling on its behalf to perfect the Trustee's security interest therein,
any such Noteholder Collateral that may come into the possession or control of
the Credit Agreement Secured Party from time to time and the Credit Agreement
Secured Party agrees (i) to act as the Trustee's representative for such limited
purpose of perfecting the Trustee's security interest by possession or control
through a representative and (ii) to forthwith notify the Trustee, in writing,
of its receipt, possession or control of such Noteholder Collateral and deliver
possessions or relinquish control thereof to, or in favor of, the Trustee.
Section 4.3 Control of Dispositions of Credit Agreement
Collateral and Effect Thereof on Junior Liens.
(a) Each Party hereby agrees that any collection,
sale, or other disposition of Credit Agreement Collateral (whether under the
applicable Uniform Commercial Code or otherwise) by the Credit Facility Secured
Party or any sale or other disposition of Credit Agreement Collateral at the
request of a Credit Party shall be free and clear of any Lien of the Trustee in
such Collateral; provided that the Trustee shall retain a Lien (having the same
priority as the Lien it previously had on the item of Credit Agreement
Collateral that was collected, sold or otherwise disposed of) on the proceeds of
such collection, sale, or other disposition (except to the extent such proceeds
are applied to the Credit Facility Indebtedness in accordance with Section 3.4
or otherwise in accordance with the terms of the Credit Facility Loan Documents
and the Indenture Documents).
(b) To the extent reasonably requested by the Credit
Facility Secured Party, the Trustee will cooperate in providing any necessary or
appropriate releases to permit a collection, sale, or other disposition of
Credit Agreement Collateral, as provided in Section 4.3(a), by the Credit
Facility Secured Party therein free and clear of the Trustee's Lien.
Section 4.4 Insurance and Condemnation. Until the earlier to
occur of (i) the date on which all Credit Facility Indebtedness is Fully Paid
and (ii) the first date following the Trigger Date on which the Maximum Amount
of Credit Facility Indebtedness is Fully Paid, (a) the Trustee agrees that the
Credit Facility Secured Party shall have the sole and exclusive right to adjust
settlement with respect to any insurance coverage for any Credit Agreement
Collateral and to exercise the rights provided in any security instrument to
waive or amend insurance requirements or to give consent relating to the
application of any proceeds of insurance, including, without limitation,
consents relating to restoration of Credit Agreement Collateral following a
casualty and (b) all proceeds of insurance and proceeds of any condemnation or
similar proceeding payable in respect of all or any part of the Credit Agreement
Collateral shall be paid to the Credit Facility Secured Party for application
pursuant to the Credit Facility Loan Documents. If the Credit Facility Secured
Party allows any portion of any proceeds of any insurance,
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condemnation or similar award with respect to any Credit Agreement Collateral to
be used by a Credit Party to repair or replace the Credit Agreement Collateral
affected, the Trustee agrees to take promptly all action reasonably requested by
the Credit Facility Secured Party to permit such use.
ARTICLE V.
MISCELLANEOUS
Section 5.1 Rights of Subrogation. The Trustee agrees that no
payment or distribution to the Credit Facility Secured Party pursuant to the
provisions of this Agreement shall entitle the Trustee to exercise any rights of
subrogation in respect thereof until the earlier of the date on which (a) all
Credit Facility Indebtedness is Fully Paid and (b) the Maximum Amount of Credit
Facility Indebtedness shall have been Fully Paid.
Section 5.2 Further Assurances. The Parties will, at their own
expense and at any time and from time to time, promptly execute and deliver all
further instruments and documents, and take all further reasonable action
(including the recordation of a subordination agreement in the appropriate
recorder's office), that may be necessary or desirable, or that either Party may
reasonably request, in order to protect any right or interest granted or
purported to be granted hereby or to enable such Party to exercise and enforce
its rights and remedies hereunder; provided that no Party shall be required to
pay over any payment or distribution, execute any instruments or documents, or
take any other action referred to in this Section 5.2 to the extent that such
action would contravene any law, order or other legal requirement binding upon
such Party, and in the event of a controversy or dispute, any Party may
interplead any payment or distribution in any court of competent jurisdiction,
without further responsibility in respect of such payment or distribution under
this Section 5.2.
Section 5.3 Defenses Similar to Suretyship Defenses. All
rights, interests, agreements and obligations of each of the Parties under this
Agreement shall remain in full force and effect irrespective of:
(a) any change in the time, manner or place of
payment of, or in any other term of, all or any of the Secured Liabilities, or
any other amendment or waiver of or any consent to departure from the Financing
Documents; provided that this Section 5.3(a) shall not apply to, and the
Trustee's Liens on the Credit Agreement Collateral shall not be subordinated in
priority by virtue of this Agreement to, the Credit Facility Secured Party's
Liens thereon if and to the extent that the Credit Facility Indebtedness is
increased, without the express written consent of the Trustee, to an amount in
excess of the Maximum Amount;
(b) any exchange, release, non-enforcement or
non-perfection of any Party's Liens with respect to any Credit Agreement
Collateral or Noteholder Collateral, or any release, amendment or waiver of or
consent to departure from any guaranty, for all or any of the Secured
Liabilities; or
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(c) any failure by any Party to marshal assets in
favor of any other Party or any other Person or to proceed upon or against or
exhaust any security or remedy before proceeding to enforce the Financing
Documents.
Section 5.4 Amendments, Etc. No amendment or waiver of any
provision of this Agreement and no consent to any departure by any Party shall
be effective unless the same is in writing and signed by each Party, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
Section 5.5 Addresses for Notices. All demands, notices and
other communications provided for hereunder shall be in writing, and if to the
Trustee, mailed, sent by facsimile or delivered to it at the following address:
Wells Fargo Bank Minnesota, National Association
213 Court Street - Suite 902
Middletown, CT 06457
Telephone: (860) 704-6216
Facsimile: (860) 704-6219
Attention: Corporate Trust Services
and if to the Credit Facility Secured Party, mailed, sent by facsimile or
delivered to it at the following address:
Foothill Capital Corporation
2450 Colorado Avenue
Suite 3000 West
Santa Monica, CA 90404
Facsimile: (310) 453-7442
Attention: Structured Finance Group
with copies to the Issuers and the Credit Parties, if applicable, mailed, sent
by facsimile or delivered to them at the following address:
c/o Jacobs Entertainment, Inc. (f/k/a Gameco, Inc.)
240 Main Street
Black Hawk, CO 80422
Facsimile: (216) 861-6315
Attention: President
or as to any Party at such other address designated by such Party in a written
notice to the other Party complying as to delivery with the terms of this
Section 5.5. All such demands, notices and other communications shall be
effective: (a) if mailed, two business days after deposit in the mails, postage
prepaid; (b) if sent by facsimile, when receipt is acknowledged by the receiving
facsimile equipment (or at the opening of the next business day if receipt is
after normal business hours); or (c) if by other means, when delivered.
-14-
Section 5.6 No Waiver of Remedies. No failure on the part of
any Party to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Section 5.7 Termination of Agreement. This Agreement shall (a)
be binding upon the Parties and their successors and assigns (including, without
limitation, all parties that become lenders or participants under the Credit
Facility); (b) inure to the benefit of and be enforceable by the Parties and
their respective successors, transferees and assigns; and (c) terminate upon the
Credit Facility Indebtedness or the Subordinated Lien Indebtedness being Fully
Paid; provided that the obligations of the Parties under Sections 4.1, 4.2 and
5.2 shall survive this Agreement.
Section 5.8 Governing Law; Entire Agreement. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York applicable to contracts made and to be performed in New York, including
Sections 5-1401 and 5-1402 of the New York General Obligations Law. This
Agreement constitutes the entire agreement and understanding among the Parties
with respect to the subject matter hereof and supersedes any prior agreements,
written or oral, with respect thereto.
Section 5.9 Counterparts. This Agreement may be executed in
any number of counterparts, and it is not necessary that the signatures of all
Parties be contained on any one counterpart hereof, each counterpart will be
deemed to be an original, and all together shall constitute one and the same
document.
Section 5.10 No Third Party Beneficiary. This Agreement is
solely for the benefit of the Parties (and their successors and assigns) and the
holders of the Secured Liabilities (including the Credit Facility Secured Party
and the Holders). No other Person (including either Issuer, any Subsidiary
Guarantor or, any subsidiary or affiliate of the Issuers) shall be deemed to be
a third party, beneficiary of this Agreement or shall have any rights to enforce
any provisions hereof.
Section 5.11 Headings. The headings of the articles and
sections of this Agreement are inserted for purposes of convenience only and
shall not be construed to affect the meaning or construction of any of the
provisions hereof.
Section 5.12 Severability. If any of the provisions in this
Agreement shall, for any reason, be held invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement and shall not invalidate the Lien Priority
or any other priority set forth in this Agreement.
Section 5.13 Trustee Status. Notwithstanding any term herein
to the contrary, it is hereby expressly agreed and acknowledged that the
subordination and related agreements set forth herein by the Trustee are made
solely in its capacity as
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trustee and secured party under the Indenture Documents and with respect to the
Notes (and not in its individual commercial capacity, except to the extent that
it is or becomes a Holder). Neither the Trustee nor the Credit Facility Secured
Party shall have any duties, obligations or responsibilities to the other Party
under this Agreement except as expressly set forth herein. Nothing in this
Agreement shall be construed to operate as a waiver by the Trustee, with respect
to the Issuers or any holder of any Subordinated Lien Indebtedness, of the
benefit of any exculpatory provisions, presumptions, indemnities, protections,
benefits, immunities or reliance rights contained in the Indenture, and, by
their acknowledgment hereof, the Issuers expressly agree that as between them
and the Trustee, the Trustee shall have such benefit with respect to all actions
or omissions by the Trustee pursuant to this Agreement. For all purposes of this
Agreement, each of the Trustee and the Credit Facility Secured Party may (a)
rely in good faith, as to matters of fact, on any representation of fact
believed by Trustee or the Credit Facility Secured Party, as applicable, to be
true (without any duty of investigation) and that is contained in a written
certificate of any authorized representative of the Trustee, of the Issuers or
of the Credit Facility Secured Party, as applicable; (b) rely in good faith, as
to matters of law, on any advice received from its legal counsel or an opinion
of its counsel, counsel to the Issuers or counsel to the Credit Facility Secured
Party or the Trustee, as applicable, and shall have no liability for any action
or omission taken in reliance thereon; and (c) assume in good faith (without any
duty of investigation), and rely upon, the genuineness, due authority, validity,
and accuracy of any certificate, instrument, notice, or other document believed
by it in good faith to be genuine and presented by the proper person.
Section 5.14 Gaming Laws.
(a) The Trustee and the Credit Facility Secured Party
acknowledge, understand and agree that the Gaming Laws may impose certain
licensing or transaction approval requirements prior to the exercise of the
rights and remedies granted to them under this Agreement with respect to the
Credit Agreement Collateral subject to the Gaming Laws.
(b) If any consent under the Gaming Laws is required
in connection with the taking of any of the actions which may be taken by either
the Trustee, or the Credit Facility Secured Party in the exercise of their
rights hereunder, then each agrees to use its best efforts to secure such
consent and to cooperate with the other party in obtaining any such consent.
Upon the occurrence and during the continuation of any Event of Default, each
party shall promptly execute and/or cause the execution of all applications,
certificates, instruments, and other documents and papers that the Trustee or
the Credit Facility Secured Party may be required to file in order to obtain any
necessary approvals under the Gaming Laws.
Section 5.15 Representations and Warranties.
(a) The Credit Facility Secured Party hereby
represents and warrants that this Agreement has been duly authorized, executed
and delivered on its
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behalf and constitutes the legal, valid and binding obligation of the Credit
Facility Secured Party enforceable in accordance with its terms.
(b) The Trustee hereby represents and warrants that
this Agreement has been duly authorized, executed and delivered on its behalf
and constitutes the legal, valid and binding obligation of it enforceable in
accordance with its terms.
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IN WITNESS WHEREOF, each Party has caused this Agreement to be
duty executed and delivered as of the date first above written.
CREDIT FACILITY SECURED PARTY:
FOOTHILL CAPITAL CORPORATION
By: /s/ Stephen Schwartz
---------------------------
Name: Stephen Schwartz
Title: S.V.P.
TRUSTEE:
WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By: /s/ Robert L. Reynolds
---------------------------
Name: Robert L. Reynolds
Title: Vice President
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ACKNOWLEDGMENT
Each of the undersigned hereby acknowledges that (a) it has
received a copy of the foregoing Intercreditor Agreement and consents thereto,
and agrees to recognize all rights granted hereby to the parties thereto, and
will not do any act or perform any obligation which is not in accordance with
the agreements set forth in such Intercreditor Agreement, and (b) it is not an
intended beneficiary or third-party beneficiary under the Intercreditor
Agreement.
Dated as of July 12, 2002.
JACOBS ENTERTAINMENT, INC.,
a Delaware corporation
By: /s/ Stephen R. Roark
------------------------
Stephen R. Roark
Chief Financial Officer and President of Casino
Operations
BLACK HAWK GAMING & DEVELOPMENT COMPANY, INC.
a Colorado corporation.
By: /s/ Stephen R. Roark
------------------------
Stephen R. Roark,
President
GILPIN VENTURES, INC.
a Colorado corporation
By: /s/ Stephen R. Roark
-----------------------
Stephen R. Roark,
President
GILPIN HOTEL VENTURE
a Colorado partnership
By: BLACK HAWK GAMING &
DEVELOPMENT COMPANY, INC,
a Colorado corporation,
Its Joint Venture Partner
By: /s/ Stephen R. Roark
----------------------------
Stephen R. Roark,
President
By: GILPIN VENTURES, INC.,
a Colorado corporation,
Its Joint Venture Partner
By: /s/ Stephen R. Roark
----------------------------
Stephen R. Roark,
President
BLACK HAWK/JACOBS ENTERTAINMENT LLC
a Colorado limited liability company
By: BLACK HAWK GAMING & DEVELOPMENT
COMPANY, INC.,
a Colorado corporation,
Its Manager
By: /s/ Stephen R. Roark
----------------------------
Stephen R. Roark,
President
DIVERSIFIED OPPORTUNITIES LTD.
an Ohio Limited Liability Company
By: JACOBS ENTERTAINMENT, INC.,
a Delaware corporation,
Its Manager
By: /s/ Stephen R. Roark
----------------------------
Stephen R. Roark,
Chief Financial Officer
-2-
GOLD DUST WEST CASINO, INC.
a Nevada corporation
By: /s/ Stephen R. Roark
----------------------------------
Name: Stephen R. Roark
Title: Vice President
JALOU L.L.C.
a Louisiana limited liability company
By: /s/ Ian M. Stewart
----------------------------------
Ian M. Stewart
President
HOUMA TRUCK PLAZA & CASINO, L.L.C.
a Louisiana limited liability company
By: /s/ Ian M. Stewart
----------------------------------
Ian M. Stewart
President
BAYOU VISTA TRUCK PLAZA AND CASINO, L.L.C.
a Louisiana limited liability company
By: /s/ Ian M. Stewart
----------------------------------
Ian M. Stewart
President
LUCKY MAGNOLIA TRUCK STOP AND CASINO, L.L.C.
a Louisiana limited liability company
By: /s/ Ian M. Stewart
----------------------------------
Ian M. Stewart
President
JALOU-CASH's L.L.C.
a Louisiana limited liability company
By: /s/ Ian M. Stewart
----------------------------------
Ian M. Stewart
President
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RACELAND TRUCK PLAZA AND CASINO, L.L.C.
a Louisiana limited liability company
By: /s/ Ian M. Stewart
----------------------------------
Ian M. Stewart
President
JALOU II INC.
a Louisiana corporation
By: /s/ Ian M. Stewart
----------------------------------
Ian M. Stewart
President
WINNER'S CHOICE CASINO,INC.
a Louisiana corporation
By: /s/ Ian M. Stewart
----------------------------------
Ian M. Stewart
President
JACE, INC.
a Louisiana corporation
By: /s/ Ian M. Stewart
----------------------------------
Ian M. Stewart
President
COLONIAL HOLDINGS,INC.
a Louisiana corporation
By: /s/ Ian M. Stewart
----------------------------------
Ian M. Stewart
President
COLONIAL DOWNS, L.P.
a Virginia limited partnership
By: STANSLEY RACING CORP.,
a Virginia corporation,
Its general partner
By: /s/ Ian M. Stewart
-----------------------------
Ian M. Stewart
President
-4-
STANSLEY RACING CORP.
a Virginia corporation
By: /s/ Ian M. Stewart
-----------------------------
Ian M. Stewart
President
-5-
SCHEDULE I
CREDIT AGREEMENT COLLATERAL
Section 1. "Collateral" or "Credit Agreement Collateral" means
all of the Black Hawk/Gilpin Entities' (as hereafter defined) right, title and
interest in, to and under the following property, whether now existing or
hereafter arising or acquired from time to time (collectively, the "Collateral";
the following capitalized terms have the meaning set forth in Section 2 of this
Schedule 1.2):
1. Owned Premises;
2. Leased Premises;
3. Leases;
4. Rents and other income, issues and profits derived
from items 1-3, inclusive, above;
5. Equipment; and
6. Proceeds.
Section 2. Definitions. As used in this Schedule 1-2, the
following terms shall have the following meanings. All capitalized terms used
but not otherwise defined herein have the meanings given to them in the Credit
Agreement (as defined below). Such definitions shall be equally applicable to
the singular and plural forms of the terms defined.
"Alteration" shall mean any and all alterations,
installations, improvements, additions, modifications or changes of a structural
nature of or to the Leased Premises or Owned Premises.
"Black Hawk" shall mean Black Hawk Gaming & Development, Inc.,
a Colorado corporation.
"Black Hawk/Gilpin Entities" shall mean, collectively, Black
Hawk, Black Hawk/Jacobs and Gilpin.
"Black Hawk/Jacobs" shall mean Black Hawk/Jacobs
Entertainment, LLC, a Colorado limited liability company.
"Credit Agreement" shall mean that certain Loan and Security
Agreement between and among Lender and Jacobs Entertainment, Inc., a Delaware
corporation, and the Black Hawk/Gilpin Entities, as Borrowers.
"Equipment" shall mean all "equipment", as such term is
defined in the UCC, now owned or hereafter acquired by any Black Hawk/Gilpin
Entity, wherever located and, in any event, including all such Black Hawk/Gilpin
Entity's machinery and equipment, including processing equipment, conveyors,
machine tools, data processing and computer equipment, including embedded
software and peripheral equipment and all engineering, processing and
manufacturing equipment, gaming machines and devices, office machinery,
furniture, materials handling equipment, tools, attachments, accessories,
automotive equipment, trailers, trucks, forklifts, molds, dies, stamps, motor
vehicles, rolling stock and other equipment of every kind and nature, trade
fixtures and fixtures not forming a part of real property, together with all
additions and accessions thereto, replacements therefor, all parts therefor, all
substitutes for any of the foregoing, fuel therefor, and all manuals, drawings,
instructions, warranties and rights with respect thereto, and all products and
proceeds thereof and condemnation awards and insurance proceeds with respect
thereto.
"Fixture" shall mean (1) all machinery, apparatus, equipment,
fittings, fixtures, improvements and articles of personal property of every
kind, description and nature whatsoever now or hereafter attached or affixed to
the Owned Land or any other Improvement or used in connection with the use and
enjoyment of the Owned Land or any other Improvement or the maintenance or
preservation thereof, which by the nature of their location thereon or
attachment thereto are fixtures under the UCC or any other applicable law
including, without limitation, all utility systems, fire sprinkler and security
systems, drainage facilities, lighting facilities, all water, sanitary and storm
sewer, drainage, electricity, steam, gas, telephone and other utility equipment
and facilities, pipes, fittings and other items of every kind and description
now or hereafter attached to or located on the Owned Land which by the nature of
their location thereon or attachment thereto are real property under applicable
law, HVAC equipment, boilers, electronic data processing, telecommunications or
computer equipment, gaming machines or devices, refrigeration, electronic
monitoring, water or lighting systems, power, sanitation, waste removal,
elevators, maintenance or other systems or equipment and all additions thereto
and betterments, renewals, substitutions and replacements thereof and (2) all of
the Black Hawk/Gilpin Entities' estate, right, title and interest in, to and
under all machinery, apparatus, equipment, fittings, fixtures, improvements and
articles of personal property of every kind, description and nature whatsoever
now or hereafter attached or affixed to the Leased Land or any other Improvement
or used in connection with the use and enjoyment of the Leased Land or any other
Improvement or the maintenance or preservation thereof, which by the nature of
their location thereon or attachment thereto are fixtures under the UCC or any
other applicable law including, without limitation, all utility systems, fire
sprinkler and security systems, drainage facilities, lighting facilities, all
water, sanitary and storm sewer, drainage, electricity, steam, gas, telephone
and other utility equipment and facilities, pipes, fittings and other items of
every kind and description now or hereafter attached to or located on the Leased
Land which by the nature of their location thereon or attachment thereto are
real property under applicable law, HVAC equipment, boilers, electronic data
processing, telecommunications or computer equipment, gaming machines or
devices, refrigeration, electronic monitoring, water or lighting systems, power,
sanitation, waste removal, elevators, maintenance or other systems or equipment
and all additions thereto and betterments, renewals, substitutions and
replacements
-2-
thereof to the extent of the Black Hawk/Gilpin Entities' estate, right, title
and interest therein.
"Gilpin" shall mean Gilpin Hotel Venture, a Colorado joint
venture.
"Governmental Authority" shall mean any federal, state, local,
foreign or other governmental, quasi-governmental or administrative (including
self-regulatory) body, instrumentality, department, agency, authority, board,
bureau, commission, office of any nature whatsoever or other subdivision
thereof, or any court, tribunal, administrative hearing body, arbitration panel
or other similar dispute-resolving body, whether now or hereafter in existence,
or any officer or official thereof, having jurisdiction over the Black
Hawk/Gilpin Entities or the Credit Agreement Collateral or any portion thereof.
"Improvements" shall mean (1) all buildings, structures and
other improvements of every kind or description and any and all Alterations now
or hereafter located, attached or erected on the Owned Land including, without
limitation, (i) all Fixtures of the type described in clause (1) of the
definition thereof, (ii) all attachments, railroad tracks, foundations,
sidewalks, drives, roads, curbs, streets, ways, alleys, passages, passageways,
sewer rights, parking areas, driveways, fences and walls and (iii) all materials
now or hereafter located on the Owned Land intended for the construction,
reconstruction, repair, replacement, alteration, addition or improvement of or
to such buildings, Fixtures, structures and improvements, all of which materials
shall be deemed to be part of the Improvements immediately upon delivery thereof
on the Owned Land and to be part of the improvements immediately upon their
incorporation therein; and (2) all of the Black Hawk/Gilpin Entities' estate,
right, title and interest in, to and under all buildings, structures and other
improvements of every kind or description and any and all Alterations now or
hereafter located, attached or erected on the Leased Land including, without
limitation, (i) all Fixtures of the type described in clause (2) of the
definition thereof, (ii) all attachments, railroad tracks, foundations,
sidewalks, drives, roads, curbs, streets, ways, alleys, passages, passageways,
sewer rights, parking areas, driveways, fences and walls and (iii) all materials
now or hereafter located on the Leased Land intended for the construction,
reconstruction, repair, replacement, alteration, addition or improvement of or
to such buildings, Fixtures, structures and improvements, all of which materials
shall be deemed to be part of the Improvements immediately upon delivery thereof
on the Leased Land and to be part of the improvements immediately upon their
incorporation therein.
"Landlord" shall mean any landlord, sublandlord, lessor,
sublessor franchisor, licensor or grantor, as applicable.
"Leased Land" shall mean, in the case of Gilpin, the land
described in Schedule A annexed hereto as Parcels 1, 2, 3, 4, 5 and 7 and any
and all easements, rights-of-way, strips and gores of land, waters, water
courses, water rights, mineral, gas and oil rights and all power, air, light and
other rights, estates, titles, interests, privileges, liberties, servitudes,
licenses, tenements, hereditaments and appurtenances whatsoever, in any way
demised under the Mortgaged Leases or belonging, relating or appertaining
-3-
thereto, or any part thereof, or which hereafter shall in any way be demised
under the Mortgaged Leases or belong, relate or be appurtenant thereto.
"Leased Premises" shall mean, collectively, (1) the lessee's
interest and estate in the Mortgaged Leases and all recorded or unrecorded
extensions, amendments, supplements and restatements thereof, and (2) all right,
title and interest of the lessee under the Mortgaged Leases in and to (i) the
Leased Land and (ii) Improvements of the type described in clause (2) of the
definition thereof.
"Leases" shall mean, collectively, any and all interests of
the Black Hawk/Gilpin Entities, as Landlord, in all leases and subleases of
space, tenancies, franchise agreements, licenses, occupancy, rental, access or
concession agreements and any other agreements pursuant to which any Person is
granted a possessory interest in or right to use or occupy all or any portion of
the Credit Agreement Collateral, in each case whether now existing or hereafter
entered, into, whether or not of record, relating in any manner to the Owned
Premises or the Leased Premises or the use or occupancy thereof and any and all
amendments, modifications, supplements, replacements, extensions, renewals
and/or guarantees, if any thereof, whether now in effect or hereafter coming
into effect.
"Mortgaged Leases" shall mean the leases described on Schedule
B attached hereto.
"Net Loss Proceeds" shall have the meaning assigned to such
term in the Indenture as in effect on the date hereof.
"Owned Premises" shall mean, collectively, (i) the Owned Land
and (ii) Improvements of the type described in clause (1) of the definition
thereof described.
"Owned Land" shall mean (i) in the case of Black Hawk, the
land described in Schedule A annexed hereto as Parcels 1, 2, 3, 4 and 5 and (ii)
in the case of Black Hawk/Jacobs, the land described in Schedule A annexed
hereto as Parcel 6, in each case together with Black Hawk's or Black
Hawk/Jacobs's, as the case may be, reversionary rights therein and all of the
Black Hawk/Gilpin Entities' rights in and to any and all easements,
rights-of-way, strips and gores of land, waters, water courses, water rights,
mineral, gas and oil rights and all power, air, light and other rights, estates,
titles, interests, privileges, liberties, servitudes licenses, covenants,
conditions, restrictions, tenements, hereditaments and appurtenances whatsoever,
in any way belonging, relating or appertaining thereto, or any part thereof, or
which hereafter shall in any way belong, relate or be appurtenant thereto.
"Person" shall have the meaning assigned to such term in the
Indenture as in effect on the date hereof.
"Premises" shall mean, collectively, the Owned Premises and
the Leased Premises.
-4-
"Proceeds" shall mean, collectively, any and all cash proceeds
and noncash proceeds and shall include, without limitation, all (i) proceeds of
the conversion, voluntary or involuntary, of any of the Credit Agreement
Collateral or any portion thereof into cash or liquidated claims, (ii) proceeds
of any insurance (except payments made to a Person, other than the Black
Hawk/Gilpin Entities or any Subsidiary thereof, that is not a party to the
Financing Documents), indemnity, warranty, guaranty or claim payable to the
Lender, the Indenture Trustee or to the Black Hawk/Gilpin Entities from time to
time with respect to any of the Credit Agreement Collateral including, without
limitation, all Net Loss Proceeds relating thereto, (iii) payments (in any form
whatsoever) made or due and payable to the Black Hawk/Gilpin Entities from time
to time in connection with any requisition, confiscation, condemnation, seizure
or forfeiture of all or any portion of the Credit Agreement Collateral by any
Governmental Authority (or any Person acting on behalf of a Governmental
Authority) including, without limitation, all Net Loss Proceeds relating
thereto, (iv) products of the Credit Agreement Collateral and (v) other amounts
from time to time paid or payable under or in connection with any of the Credit
Agreement Collateral.
"Rents" shall mean, collectively, any and all rents,
additional rents, royalties, issues, cash, guaranties, letters of credit, bonds,
sureties or securities deposited under any Lease to secure performance of the
Tenant's obligations thereunder, revenues, earnings, profits and income, advance
rental payments, payments incident to assignment, sublease or surrender of a
Lease, claims for forfeited deposits and claims for damages, now due or
hereafter to become due, with respect to any Lease, any indemnification against,
or reimbursement for, sums paid and costs and expenses incurred by the Black
Hawk/Gilpin Entities under any Lease or otherwise, and any award in the event of
the bankruptcy of any Tenant under or guarantor of a lease.
"Tenant" shall mean any tenant, lessee, sublessee, franchisee,
licensee, grantee or obligee, as applicable.
"UCC" means, generally, the Uniform Commercial Code as the
same may, from time to time, be enacted and in effect in the State of New York;
provided, however, that solely for the purposes of the provisions hereof
relating to the attachment, perfection or priority of Lender's security interest
in any Collateral and for purposes of definitions relating to such provisions,
(a) subject to clause (b) below, the term "UCC" shall mean the Uniform
Commercial Code as enacted and in effect in the State of Colorado and (b) in the
event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of Lender's security interest in any
Collateral is governed by the Uniform Commercial Code as enacted and in effect
in any other jurisdiction, the term "UCC" shall mean the Uniform Commercial Code
as enacted and in effect in such other jurisdiction.
-5-
Schedule A to Collateral Description
Legal Description of Real Property (by Parcel)
PARCEL 1:
LOTS 2, 3, 4 AND THE WESTERLY 30 FEET OF LOT 5, BLOCK 37,
CITY OF BLACK HAWK,
TOGETHER WITH THAT PORTION OF MAIN STREET ADJOINING SAID LOTS CONVEYED TO GILPIN
GOLD, INC., A COLORADO CORPORATION AND BLACK HAWK GAMING & DEVELOPMENT COMPANY,
INC. FKA MOUNTAIN CASINO PROPERTIES BY PROPERTY LINE AGREEMENT RECORDED FEBRUARY
26, 1996, IN BOOK 595 AT PAGE 145,
TOGETHER WITH THAT PORTION OF MAIN STREET ADJOINING SAID LOTS CONVEYED TO BLACK
HAWK GAMING & DEVELOPMENT COMPANY, INC. FKA MOUNTAIN CASINO PROPERTIES BY
PROPERTY LINE AGREEMENT RECORDED FEBRUARY 26, 1996, IN BOOK 595 AT PAGE 183,
EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK IN PROPERTY LINE AGREEMENT,
RECORDED FEBRUARY 26, 1996, IN BOOK 595 AT PAGE 145,
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK BY QUIT CLAIM DEED
RECORDED APRIL 10, 1996, IN BOOK 597 AT PAGE 138, COUNTY OF GILPIN, STATE OF
COLORADO.
PARCEL 2:
A PARCEL OF GROUND IN THE CITY OF BLACK HAWK, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT WHICH LIES N. 48(degree)06' W., 10 FEET FROM THE SOUTHEAST
CORNER OF LOT 6, BLOCK 40, CITY OF BLACK HAWK; THENCE N. 43(degree)33' E.,
100.05 FEET; THENCE S. 48(degree)06' E., 10 FEET; THENCE N. 43(degree)33' E.,
48.12 FEET; THENCE S. 51(degree)34' E., 93.30 FEET; THENCE S. 38(degree)29'
W., 152.36 FEET; THENCE N. 57(degree)59' W., 10 FEET; THENCE N. 48(degree)06'
W., 106.66 FEET TO THE PLACE OF BEGINNING, SOMETIMES DESCRIBED AS THE EAST 10
FEET OF LOT 6, BLOCK 40, PART OF MILL SITE NO. 29 AND THE WEST 10 FEET OF MILL
SITE NO. 30 AND TRACT,
TOGETHER WITH THAT PORTION OF MAIN STREET ADJOINING SAID PARCEL CONVEYED TO
GILPIN GOLD, INC., A COLORADO CORPORATION AND BLACK HAWK GAMING & DEVELOPMENT
COMPANY, INC. FKA
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MOUNTAIN CASINO PROPERTIES BY PROPERTY LINE AGREEMENT RECORDED FEBRUARY 26,
1996, IN BOOK 595 AT PAGE 145,
TOGETHER WITH THAT PORTION OF MAIN STREET ADJOINING SAID PARCEL CONVEYED TO
BLACK HAWK GAMING & DEVELOPMENT COMPANY, INC. FKA MOUNTAIN CASINO PROPERTIES BY
PROPERTY LINE AGREEMENT RECORDED FEBRUARY 26, 1996, IN BOOK 595 AT PAGE 183,
EXCEPTING THEREFROM THOSE PORTIONS OF MILL SITE 29 GRANTED TO THE COUNTY OF
GILPIN BY INSTRUMENTS RECORDED NOVEMBER 6, 1939, IN BOOK 214 AT PAGE 69, AND
APRIL 8, 1940, IN BOOK 214 AT PAGE 225,
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK IN PROPERTY LINE
AGREEMENT, RECORDED FEBRUARY 26, 1996, IN BOOK 595 AT PAGE 145,
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK IN PROPERTY LINE AGREEMENT
RECORDED FEBRUARY 26, 1996, IN BOOK 595 AT PAGE 183,
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK BY QUIT CLAIM DEED
RECORDED APRIL 10, 1996, IN BOOK 597 AT PAGE 138,
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK BY QUIT CLAIM DEED
RECORDED APRIL 10, 1996, IN BOOK 597 AT PAGE 160,
AND EXCEPT ANY PORTION CONVEYED TO BLACK HAWK/JACOBS ENTERTAINMENT, LLC BY QUIT
CLAIM DEED RECORDED MARCH 24, 1997, IN BOOK 617 AT PAGE 192,
AND EXCEPT ANY PORTION CONVEYED TO THE COLORADO CENTRAL RAILROAD COMPANY BY DEED
RECORDED IN BOOK 72 AT PAGE 363,
AND EXCEPT THOSE PORTIONS OF MILL SITE 29 GRANTED TO THE COUNTY OF GILPIN BY
INSTRUMENTS RECORDED NOVEMBER 6, 1939, IN BOOK 214 AT PAGE 69 AND APRIL 8, 1940,
IN BOOK 214 AT PAGE 225,
COUNTY OF GILPIN, STATE OF COLORADO.
PARCEL 3:
THE EAST 15 FEET OF LOT 11,
ALL OF LOT 12, BLOCK 35, AND
ALL OF LOT 1, BLOCK 37,
CITY OF BLACK HAWK,
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TOGETHER WITH AND SUBJECT TO PERPETUAL EASEMENT RECORDED APRIL 15, 1997, IN BOOK
618 AT PAGE 295, AND
TOGETHER WITH AND SUBJECT TO ANY PORTION CONVEYED TO BLACK HAWK GAMING &,
DEVELOPMENT COMPANY, INC., A COLORADO CORPORATION AND GILPIN HOTEL VENTURE, A
COLORADO JOINT VENTURE BY EASEMENT, BOUNDARY AND REAL ESTATE CONVEYANCE
AGREEMENT RECORDED MARCH 8, 1994, IN BOOK 560 AT PAGE 428.
EXCEPT ANY PORTION CONTAINED IN DEED RECORDED MARCH 8, 1994, IN BOOK 560 AT PAGE
424,
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK IN PROPERTY LINE
AGREEMENT, RECORDED FEBRUARY 26, 1996, IN BOOK 595 AT PAGE 145,
AND EXCEPT ANY PORTION CONVEYED TO 101 MAIN STREET LIMITED LIABILITY COMPANY BY
AGREEMENT RECORDED MARCH 8, 1994, IN BOOK 560 AT PAGE 428.
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK BY QUIT CLAIM DEED
RECORDED APRIL 10, 1996, IN BOOK 597 AT PAGE 138,
COUNTY OF GILPIN, STATE OF COLORADO.
PARCEL 4:
THAT PORTION OF THE NINETY NINE (99) LODE A MINING CLAIM, SAID 99 LODE AS
DESCRIBED IN QUIT CLAIM DEED RECORDED DECEMBER 13, 1899, IN BOOK 150 AT PAGE
317, THAT LIES WITHIN THE BOUNDARIES OF PARCELS 1, 2, 3 AND 5, SHOWN HEREIN,
CITY OF BLACK HAWK,
COUNTY OF GILPIN, STATE OF COLORADO.
PARCEL 5:
THAT PART OF MILL SITE #30, CITY OF BLACK HAWK, DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEASTERLY CORNER OF MILL SITE 30 AT THE BEND POINT ON
MAIN STREET; THENCE N. 35 (degree) 41' E., 12.0 FEET BETWEEN MILL SITES 30 AND
31, TO THE POINT OF BEGINNING; THENCE N. 35 (degree) 41' E., 103.61 FEET BETWEEN
MILL SITES 30 AND 31 TO THE SOUTHWESTERLY RIGHT OF WAY LINE OF HIGHWAY #119;
THENCE N. 51 (degree) 34' W., 486.91 FEET ALONG THE HIGHWAY RIGHT OF WAY; THENCE
S. 38 (degree) 29' W., 152.36 FEET MORE OR LESS FROM A BEND POINT; THENCE S. 57
(degree) 59' E., 264.08 FEET
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ALONG MAIN STREET; THENCE S. 56 (degree) 24' E., 230.29 FEET, MORE OR LESS, TO
THE POINT OF BEGINNING;
EXCEPT ANY PORTION THEREOF LYING WITHIN TRACT DESCRIBED IN BOOK 170 AT PAGE 225,
SOMETIMES REFERRED TO AS THE WEST 10 FEET OF MILL SITE #30;
AND EXCEPT ANY PORTION THEREOF LYING WITHIN TRACT DESCRIBED IN BOOK 195 AT PAGE
527;
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK IN PROPERTY LINE
AGREEMENT, RECORDED FEBRUARY 26, 1996, IN BOOK 595 AT PAGE 145,
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK IN PROPERTY LINE AGREEMENT
RECORDED FEBRUARY 26, 1996, IN BOOK 595 AT PAGE 183,
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK BY QUIT CLAIM DEED
RECORDED APRIL 10, 1996, IN BOOK 597 AT PAGE 138,
AND EXCEPT ANY PORTION CONVEYED TO CITY OF BLACK HAWK BY QUIT CLAIM DEED
RECORDED APRIL 10, 1996, IN BOOK 597 AT PAGE 160,
AND EXCEPT ANY PORTION CONVEYED TO BLACK HAWK/JACOBS ENTERTAINMENT, LLC BY QUIT
CLAIM DEED RECORDED MARCH 24, 1997, IN BOOK 617 AT PAGE 192,
AND EXCEPT ANY PORTION CONVEYED TO THE COLORADO CENTRAL RAILROAD COMPANY BY DEED
RECORDED IN BOOK 72 AT PAGE 363,
COUNTY OF GILPIN, STATE OF COLORADO.
PARCEL 6:
A TRACT OF LAND SITUATED IN MILL SITES 30, 31, 32 AND 34, IN THE CITY OF BLACK
HAWK. SITUATED IN THE SOUTH OF SECTION 7, TOWNSHIP 3 SOUTH, RANGE 72 WEST OF THE
6TH P.M., AND IN BLACK HAWK/JACOBS SUBDIVISION FILING NO. 1 MINOR SUBDIVISION
PLAT, RECORDED OCTOBER 9, 1998, IN BOOK 653 AT PAGE 44, AND THE 1ST AMENDMENT
RECORDED OCTOBER 9, 1998, IN BOOK 653 AT PAGE 45, AND THE SECOND AMENDMENT
RECORDED OCTOBER 9,1998, IN BOOK 653 AT PAGE 46,
GILPIN COUNTY, COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A POINT WHICH BEARS S. 66 (degree) 30'08" E., A DISTANCE OF
2923.98 FEET FROM THE W 1/4 CORNER OF SAID SECTION 7, ALSO BEING
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CORNER #21 OF THE SECURITY PLACER MINERAL SURVEY NO. 5864 AND SITUATED ON THE
NORTHEASTERLY RIGHT-OF-WAY OF MAIN STREET AS SHOWN ON A.D.G. ENGINEERING INC.
REALIGNMENT MAPS FOR THE CITY OF BLACK HAWK; THENCE ALONG THE SAID NORTHEASTERLY
RIGHT-OF-WAY THE FOLLOWING ELEVEN (11) COURSES:
N. 39 (degree) 01'53" W., A DISTANCE OF 241.62 FEET TO A POINT;
N. 35 (degree) 04'41" W., A DISTANCE OF 58.02 FEET TO A POINT;
N. 43 (degree) 11'28" W., A DISTANCE OF 55.15 FEET TO A POINT;
N. 48 (degree) 17'59" W., A DISTANCE OF 28.82 FEET TO A POINT;
N. 60 (degree) 47'16" W., A DISTANCE OF 211.15 FEET TO A POINT;
N. 35 (degree) 40'25" E., A DISTANCE OF 3.31 FEET TO A POINT;
N. 61 (degree) 49'18" W., A DISTANCE OF 53.33 FEET TO A POINT;
N. 57 (degree) 09'32" W., A DISTANCE OF 94.26 FEET TO A POINT;
N. 52 (degree) 54'00" W., A DISTANCE OF 78.00 FEET TO A POINT;
N. 57 (degree) 25'53" W., A DISTANCE OF 76.00 FEET TO A POINT;
N. 60 (degree) 09'14" W., A DISTANCE OF 73.21 FEET TO A POINT;
THENCE DEPARTING SAID RIGHT-OF-WAY N. 32 (degree) 45'26" E., A DISTANCE OF
117.52 FEET TO A POINT ON THE PROPOSED SOUTHWESTERLY RIGHT-OF-WAY OF COLORADO
HIGHWAY #119;THENCE ALONG SAID PROPOSED RIGHT-OF-WAY THE FOLLOWING FOUR (4)
COURSES;
S. 51 (degree) 35'41" E., A DISTANCE OF 834.94 FEET TO A POINT;
N. 50 (degree) 56'24" E., A DISTANCE OF 9.11 FEET TO A POINT;
S. 39 (degree) 03'36" E., A DISTANCE OF 40.98 FEET TO A POINT;
S. 51 (degree) 35'41" E., A DISTANCE OF 34.03 FEET TO A POINT;
THENCE ON A CURVE TO THE LEFT CONTAINING A CENTRAL ANGLE OF 6 (degree) 51'22",
A RADIUS OF 1403.00 FEET, AN ARC LENGTH OF 167.89 FEET, A CHORD BEARING OF S.
55 (degree) 01'22" E., A CHORD DISTANCE OF 167.79 FEET TO A POINT;
THENCE CONTINUING ALONG SAID RIGHT-OF-WAY S. 66 (degree) 16'40" E., A DISTANCE
OF 93.28 FEET TO A POINT;
THENCE S. 23 (degree) 43'20" W., A DISTANCE OF 9.66 FEET TO A POINT OF
CURVATURE; THENCE ON A NON TANGENT CURVE TO THE LEFT CONTAINING A CENTRAL ANGLE
OF 6 (degree) 28'03", A RADIUS OF 1403.00 FEET, AN ARC LENGTH OF 158.37 FEET, A
CHORD BEARING OF S. 65 (degree) 30'54" E., A CHORD DISTANCE OF 158.29 FEET TO A
POINT; THENCE DEPARTING SAID PROPOSED RIGHT-OF-WAY S. 22 (degree) 25'26" W., A
DISTANCE OF 4.35 FEET TO A POINT;
THENCE N. 69 (degree) 00'00" W., A DISTANCE OF 50.12 FEET TO A POINT;
THENCE N. 67 (degree) 30'00" W., A DISTANCE OF 30.14 FEET TO A POINT;
THENCE S. 18 (degree) 59'09" W., A DISTANCE OF 75.65 FEET TO A POINT ON THE
AFOREMENTIONED RIGHT-OF-WAY OF MAIN STREET;
THENCE ALONG SAID RIGHT-OF-WAY OF MAIN STREET THE FOLLOWING FOUR (4) COURSES: N.
71 (degree) 00'51" W., A DISTANCE OF 34.52 FEET TO A POINT;
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N. 69 (degree) 35'02" W., A DISTANCE OF 52.24 FEET TO A POINT;
N. 71 (degree) 47'03" W., A DISTANCE OF 35.89 FEET TO A POINT;
N. 66 (degree) 13'42" W., A DISTANCE OF 197.56 FEET TO THE POINT OF BEGINNING,
COUNTY OF GILPIN, STATE OF COLORADO
PARCEL 7:
THE THIRD FLOOR OF A THREE LEVEL PARKING GARAGE LOCATED ON LOT 1A AS SHOWN ON
THAT CERTAIN BLACK HAWK/JACOBS SUBDIVISION, FILING NO. 1 2ND AMENDED, A MINOR
SUBDIVISION PLAT, RECORDED OCTOBER 9, 1998, IN BOOK 653 AT PAGE 46, IN THE
OFFICE OF THE CLERK AND RECORDER OF GILPIN COUNTY, COLORADO TOGETHER WITH RAMP
ACCESS SERVING ONLY SAID THIRD FLOOR,
COUNTY OF GILPIN, STATE OF COLORADO.
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