EXHIBIT 10.47
SUBORDINATION AND PARTICIPATION AGREEMENT
THIS SUBORDINATION AND PARTICIPATION AGREEMENT is made and entered into
as of October 8, 1996, and is by and between GAMING ENTERTAINMENT L.L.C., a
Delaware limited liability company ("GELLC") and XXXXXX & XXXXXXXXX INVESTMENTS
CORPORATION, a Minnesota corporation ("M&S").
RECITALS:
A. M&S, as Lender, and the Coquille Economic Development Corporation, as
Borrower ("CEDCO"), a tribally-chartered corporation wholly owned by the
Coquille Indian Tribe (the "Tribe"), have entered into a certain Loan
Agreement, dated as of the date hereof (the "Loan Agreement"), pursuant to
which M&S will lend to CEDCO $17,500,000 (the "Loan") to refinance the
development, construction and equipping of a casino facility (the "Casino
Project") located on the Tribe's reservation and trust lands in North Bend,
Oregon, to finance the purchase of equipment for the casino facility and to
finance certain other improvements in connection with the casino facility.
CEDCO's payment obligations under the Loan Agreement will be evidenced by
Promissory Notes, Series 1996A (the "Notes") of even date herewith.
B. In connection with the Casino Project, Full House Resorts, Inc. ("FHR") has
subleased certain land located on the Tribe's reservation and trust lands
(the "Premises") to CEDCO pursuant to a Participating Lease, dated February
9, 1995, as amended and supplemented (the "Original Participating Lease"),
and CEDCO is obligated to pay to FHR certain rental payments (the "Rental
Payments"). FHR has assigned its interest in the Original Participating
Lease and the Rental Payments to GELLC. GELLC, as landlord, and CEDCO, as
tenant, have entered into a First Amended and Restated Participating Lease,
dated October 8, 1996 (the "Participating Lease"), whereby they have
amended and restated the Original Participating Lease, as theretofore
amended.
C. As contemplated by Section 9.06 of the Loan Agreement, M&S will be selling
participation interests in the Loan, and GELLC will purchase from M&S a
participation interest of $2,000,000 in the Loan (the "GELLC
Participation").
D. In order to induce M&S to enter into the Loan Agreement and to assure M&S
the priority of all payments due M&S under the Notes and the Loan
Agreement, and in recognition that, but for this Agreement, M&S would not
enter into the Loan Agreement, the parties hereto are executing and
delivering this Agreement.
NOW, THEREFORE, in consideration of the Loan pursuant to the Loan
Agreement and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged by each of the parties hereto, it
is hereby agreed as follows:
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1. Notwithstanding anything in the Participating Lease to the contrary,
GELLC agrees that it will have no right to receive Rental Payments under the
Participating Lease, unless and until and only so long as the required monthly
debt service on the Notes have been fully paid and no Event of Default (as
defined in the Loan Agreement) nor any event which with the passing of time or
the giving of notice or both would constitute an Event of Default, has occurred
and is then existing (other than an Event of Default due solely to the failure
of CEDCO to pay the Rental Payments).
2. Any payments received by GELLC in violation of this Agreement shall be
held in trust for the benefit of M&S and will be paid over to M&S upon demand to
be applied to payments with respect to the Notes then delinquent or due and to
cure any defaults under the Loan Agreement. Absent an Event of Default (or an
event which with the passage of time or the giving of notice would constitute an
Event of Default), any payments received by M&S in excess of required monthly
debt service on the Notes and any other amounts due pursuant to Section 2.02 or
2.05 of the Loan Agreement shall be held in trust for the benefit of GELLC and
shall be paid over to GELLC upon demand to be applied to Rental Payments then
delinquent or due and to cure any defaults under the Participating Lease.
3. GELLC subordinates and subjects to the right of M&S to receive required
payments under the Notes its sub-leasehold interest in the Premises pursuant to
the First Amended and Restated Master Lease dated October 8, 1996, between
CEDCO, as landlord, and GELLC, as tenant. For so long as the Notes are
outstanding, GELLC will not initiate any action to terminate the Participating
Lease or to accelerate any Rental Payments due under the Participating Lease,
without the prior written consent of M&S; provided, however, that:
(a) if CEDCO is in default under the Participating Lease, GELLC may at
its option request CEDCO or the Tribe to enter into a contract with a management
company as described in Section 25(c)(vii) of the Participating Lease, subject
to the approval of M&S pursuant to Section 6.27 of the Loan Agreement; and
(b) if the Tribe's Class III gaming operations (as defined under the
Indian Gaming Regulatory Act) at the Casino Project have terminated and CEDCO is
in default under the Participating Lease, GELLC may pursue any and all of its
remedies under the Participating Lease.
4. (a) No renewal, modification or extension of the Loan Agreement or
payment of the Notes and no releases or surrender of any security therefor, nor
the obligations of any endorsers, sureties or guarantees thereof, nor any delay
or omission in exercising any right or power contained therein shall in any
event impair or affect the subordinations contained herein and/or the rights and
obligations of the parties hereunder. M&S, in its uncontrolled discretion, may
waive or release any right or option under the Loan Agreement and may exercise
or
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refrain from exercising any right thereunder. The parties waive notice of the
creation, existence, renewal, modification or extension of time and payment of
the Loan Agreement and any modifications or amendments thereof. The parties
agree that M&S, at any time or from time to time, may enter such agreement or
agreements with CEDCO as M&S may deem appropriate, extending the time of payment
or renewing or otherwise altering the terms of any or all of the obligations of
CEDCO to M&S without notice to GELLC and without in any way impairing or
affecting the rights of M&S under this Agreement.
(b) Notwithstanding anything to the contrary set forth in Section 4(a)
hereof, M&S shall not, without the prior written consent of GELLC, agree to any
modification, amendment or waiver of any provision of, or give a consent
requested to be given under, the Loan Agreement, the Depository Agreement (as
defined in the Loan Agreement) or the Notes, if the effect thereof might
reasonably be expected to affect the ability of CEDCO to pay the Rental Payments
under the Participating Lease when and as due, including, without limitation,
any modification, amendment, waiver or consent that: (i) increases the principal
amount, interest rate or other fees due under or with respect to the Notes; (ii)
accelerates the time at which amounts are due under or with respects to the
Notes (other than an acceleration due to the occurrence of an Event of Default);
(iii) is with respect to Section 6.26 ("NO MERGER"), Section 6.27 ("MANAGEMENT
CONTRACT"), Section 6.28 ("LOANS OR ADVANCES"), Section 6.29 ("GUARANTIES"),
Section 6.33 ("OPERATION OF CASINO FACILITIES"), Section 6.34 ("NET WORTH"),
Section 6.35 ("DEBT SERVICE COVERAGE RATIO") or Section 6.36 ("INDEBTEDNESS").
5. Without obtaining the prior written consent of GELLC, M&S agrees not to
exercise any rights or remedies with respect to any Event of Default under the
Loan Agreement or the Notes if such Event of Default has occurred solely as a
result of a CEDCO default under the Participating Lease, except in such
circumstances as are described in Section 3(b) hereof.
6. In connection with the GELLC Participation, GELLC and M&S agree that M&S
shall act as agent for GELLC and other purchasers of participation interests in
the Loan and shall exercise such powers on behalf of GELLC and such others as
are specifically delegated to it under the Loan Agreement and related documents,
together with such other powers as are reasonably incidental thereto. Without
limiting the foregoing, M&S shall promptly pay to GELLC its PRO RATA, PARI PASSU
portion of any amount received with respect to the Loan or under the Loan
Agreement.
7. M&S acknowledges that it has, based upon such documents, information and
investigations as M&S has deemed appropriate, and, independently of GELLC and
any affiliate of GELLC (including Full House Resorts, Inc. and GTECH
Corporation) or any information supplied or representations made by any of the
foregoing, made its own credit decision to make the Loan.
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8. To further evidence the subordinations contained herein, GELLC shall
execute and deliver to M&S the Consent, Estoppel, Attornment, Subordination and
Non-Disturbance Agreement dated the date hereof, between the Tribe, CEDCO, GELLC
and M&S.
9. This Agreement and each and every covenant, agreement and other
provision hereof shall be binding upon each of the parties hereto and their
successors and assigns and shall inure to the benefit of each of the parties
hereto and their successors and assigns. Notice of acceptance of this Agreement
is hereby waived on behalf of all parties and their successors and assigns.
10. This Agreement is made in and shall be construed in accordance with the
laws of the State of Delaware.
11. This Agreement may be changed only by an instrument in writing executed
by the parties hereto. No waiver, amendment or modification by custom, usage or
by implication shall be effective unless in writing signed by the parties.
12. Any notices and other communications permitted or required by the
provisions of this Agreement (except for telephonic notices expressly permitted)
shall be in writing and shall be deemed to have been properly given or served by
depositing the same with the United States Postal Service, or any official
successor thereto, bearing adequate postage, or delivery by reputable private
carrier such as Federal Express, Airborne, DHL, or similar overnight delivery
service, and addressed as provided below. Each such notice shall be effective
upon being deposited as aforesaid.
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IN WITNESS WHEREOF, the parties hereto have caused this Subordination
Agreement to be executed as of the date first above written.
GAMING ENTERTAINMENT L. L. C.,
By its Members, as follows:
Dreamport, Inc. (formerly known as
GTECH Gaming Subsidiary 1 Corporation)
By: /s/ XXXX X. XXXXXX, XX.
---------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: President
GTECH Gaming Subsidiary 2 Corporation
By: /s/ XXXX X. XXXXXX, XX.
---------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: President
Full House Subsidiary, Inc.
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Full House Joint Venture Subsidiary, Inc.
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Address:
Gaming Entertainment L.L.C.
00 Xxxxxxxxxx Xxx
Xxxx Xxxxxxxxx, Xxxxx Xxxxxx 00000
Attn: Xxxx Xxxxxx
with copies to:
Xxxx X. Xxxxxxx, Esq.
Full House Resorts, Inc.
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Office of the General Counsel
GTECH Corporation
00 Xxxxxxxxxx Xxx
Xxxx Xxxxxxxxx, Xxxxx Xxxxxx 00000
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XXXXXX & XXXXXXXXX INVESTMENTS
CORPORATION, a Minnesota corporation
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Its: President
----------------------------
Address:
000 Xxxxxxxxx Xxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
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