Exhibit 4.30
PREPARED BY, RECORDING REQUESTED
BY AND WHEN RECORDED RETURN TO
XXXX, XXXXXXXX, XXXXXXXX
& XXXXXX LLP
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-2371
Attention: Xxxxx Xxxx, Esq.
________________________________________________________________________________
[Space Above for Recorder]
MEMORANDUM OF INTERCREDITOR AGREEMENT
THIS MEMORANDUM OF INTERCREDITOR AGREEMENT (this
"Memorandum"), is made as of the 12th day of July, 2002, by and among FOOTHILL
CAPITAL CORPORATION ("Foothill"), XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION ("Trustee"), XXXXXX ENTERTAINMENT, INC., formerly known as Gameco, a
Delaware corporation ("Entertainment"), BLACK HAWK GAMING & DEVELOPMENT COMPANY,
INC., a Colorado corporation ("Black Hawk"), BLACK HAWK/XXXXXX ENTERTAINMENT,
LLC, a Colorado limited liability corporation ("Black Hawk/Xxxxxx") and XXXXXX
HOTEL VENTURE, a Colorado joint venture partnership ("Xxxxxx"), (Entertainment,
Black Hawk, Black Hawk/Xxxxxx and Xxxxxx, collectively in such capacities and
together with any successors in such capacities, "Borrower"), with reference to
the following facts:
A. Entertainment has issued certain senior secured notes (the
"Notes") pursuant to that certain Indenture dated as of February 8, 2002 (the
"Indenture"), among Borrower, Trustee and certain other parties. Xxxxxxxx's
obligations under the Notes and certain other obligations are secured by, among
other things, liens on and security interests in all of the now existing and
hereafter acquired real and personal property of the Borrower, including,
without limitation, the real property interests more particularly described on
Exhibit "A" attached hereto and incorporated herein by this reference (the
"Property").
B. Concurrently herewith, Foothill is making a loan to
Borrower (the "Foothill Loan") in the original principal amount of $10,000,000,
which loan is secured, in part, by the Property.
C. In connection with the Foothill Loan, in order to address
the priority of certain liens and other rights and obligations of Foothill and
Trustee, Foothill and Trustee have entered into that certain Intercreditor
Agreement dated as of even date herewith (the "Intercreditor Agreement"), the
terms of which are incorporated into this Memorandum in their entirety by this
reference.
NOW, THEREFORE, in consideration of the mutual promises and
agreements hereinafter contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
execute this Memorandum.
1. Successors and Assigns. This Memorandum shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
2. Interpretation. This Memorandum is prepared for recordation
and the notice thereby imparted, and does not in any way modify the
Intercreditor Agreement. In the event of any conflict between the provisions of
this Memorandum and the Intercreditor Agreement, the provisions of the
Intercreditor Agreement shall control. The recitals set forth above are
incorporated into this Memorandum by this reference.
3. Counterparts. This Memorandum may be executed in two (2) or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto hereby execute this
Memorandum as of the date first written above.
FOOTHILL:
FOOTHILL CAPITAL CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxx
---------------------------
Title: S.V.P.
--------------------------
TRUSTEE:
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
-----------------------------
Title: Vice President
------------------------------
BORROWER:
XXXXXX ENTERTAINMENT, INC.,
a Delaware corporation
-2-
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------
Title: Chief Financial Officer and
President of Gaming Operations.
BLACK HAWK GAMING & DEVELOPMENT
COMPANY, INC., a Colorado corporation
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Xxxxxxx X. Xxxxx,
President
XXXXXX HOTEL VENTURE, a Colorado joint venture
partnership
By: BLACK HAWK GAMING & DEVELOPMENT
COMPANY, INC., a Colorado corporation,
Its Joint Venture Partner
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Xxxxxxx X. Xxxxx,
President
By: XXXXXX VENTURES, INC.,
a Colorado corporation
Its Joint Venture Partner
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Xxxxxxx X. Xxxxx,
President
BLACK HAWK/XXXXXX ENTERTAINMENT, LLC, a
Colorado limited liability company
By: BLACK HAWK GAMING & DEVELOPMENT
COMPANY, INC., a Colorado corporation,
Its Manager
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Xxxxxxx X. Xxxxx,
President
-3-
State of California )
) ss.
City & County of Los Angeles )
The foregoing instrument was acknowledged before me this 12th
day of July, 2002 by Xxxxxxx Xxxxxxxx as of Foothill Capital
Corporation.
Witness my hand and official seal.
My commission expires: April 22, 2005
/s/ Xxxxx Xxxxxx Xxxxxx
__________[SEAL] ----------------------------------
Notary Public
State of Connecticut )
) ss.
City & County of Middlesex )
The foregoing instrument was acknowledged before me this 12th
day of July, 2002 by Xxxxxx X. Xxxxxxxx as Vice President of Xxxxx Fargo Bank
Minnesota, National Association.
Witness my hand and official seal.
My commission expires: February 28, 2007
/s/ Xxxxxxx Xxxxxxxx
__________[SEAL] ----------------------------------
Notary Public
State of Colorado )
) ss.
City & County of Denver )
The foregoing instrument was acknowledged before me this 12th
day of July, 2002 by Xxxxxxx X. Xxxxx as Chief Financial Officer and President
of Gaming Operations of Xxxxxx Entertainment, Inc., a Delaware corporation.
Witness my hand and official seal.
My commission expires: 1/11/2005
/s/ Xxxxx X. Xxxxxx
__________[SEAL] ----------------------------------
Notary Public
State of Colorado )
) ss.
City & County of Denver )
The foregoing instrument was acknowledged before me this 12th
day of July, 2002 by Xxxxxxx X. Xxxxx as President of Black Hawk Gaming &
Development Company, Inc., a Colorado corporation.
Witness my hand and official seal.
My commission expires: 1/11/2005
/s/ Xxxxx X. Xxxxxx
__________[SEAL] ----------------------------------
Notary Public
State of Colorado )
) ss.
City & County of Denver )
The foregoing instrument was acknowledged before me this 12th
day of July, 2002 by Xxxxxxx X. Xxxxx as President of Black Hawk Gaming &
Development Company, Inc., a Colorado corporation, and as President of Xxxxxx
Ventures, Inc., a Colorado corporation, the joint venture partners of Xxxxxx
Hotel Venture, a Colorado joint venture partnership.
Witness my hand and official seal.
My commission expires: 1/11/2005
/s/ Xxxxx X. Xxxxxx
__________[SEAL] ----------------------------------
Notary Public
State of Colorado )
) ss.
City & County of Denver )
The foregoing instrument was acknowledged before me this 12th
day of July, 2002 by Xxxxxxx X. Xxxxx as President of Black Hawk Gaming &
Development Company, Inc., a Colorado corporation, the Manager of Black
Hawk/Xxxxxx Entertainment LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires: 1/11/2005
/s/ Xxxxx X. Xxxxxx
__________[SEAL] ----------------------------------
Notary Public
