exv10w1






Exhibit 10.1




     EXECUTION VERSION



INTERCREDITOR AND SUBORDINATION AGREEMENT




(FF&E)




dated as of September 30, 2008




between




LAKES KAR-SHINGLE SPRINGS, LLC,

as lender under the Lakes Notes and as Manager of the Project




and




BANK OF UTAH,

as FF&E Agent




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	1.	 	Definitions and General Provisions 	2	 
	 
	 	 	 	 	 	 	 	 
	 
	 	1.1	 	Definitions	 	 	2	 
	 
	 	1.2	 	Interpretation	 	 	4	 
	 
	 	 	 	 	 	 	 	 
	2.	 	Deferral and Subordination of Lakes Obligations 	5	 
	 
	 	 	 	 	 	 	 	 
	 
	 	2.1	 	Deferral and Accrual of Lakes Obligations	 	 	5	 
	 
	 	2.2	 	Subordination to FF&E Secured Obligations	 	 	5	 
	 
	 	2.3	 	Default on FF&E Secured Obligations	 	 	5	 
	 
	 	2.4	 	Deferral Not a Default	 	 	5	 
	 
	 	2.5	 	Continuing Subordination	 	 	5	 
	 
	 	2.6	 	Subordination of the Lakes Obligations upon Insolvency or Liquidation Proceeding	 	 	6	 
	 
	 	2.7	 	Judgment Liens	 	 	7	 
	 
	 	2.8	 	When Proceeds Must be Paid Over	 	 	7	 
	 
	 	2.9	 	Subrogation	 	 	7	 
	 
	 	 	 	 	 	 	 	 
	3.	 	FF&E Collateral 	7	 
	 
	 	 	 	 	 	 	 	 
	 
	 	3.1	 	Separate Collateral	 	 	7	 
	 
	 	3.2	 	Confirmation of Liens	 	 	8	 
	 
	 	 	 	 	 	 	 	 
	4.	 	Rights and Limitation of Actions With Respect to FF&E Collateral 	8	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.1	 	Rights and Limitations Applicable to Lakes	 	 	8	 
	 
	 	4.2	 	Rights and Limitations Applicable to the FF&E Secured Parties	 	 	9	 
	 
	 	4.3	 	Notification of Events of Default	 	 	9	 
	 
	 	4.4	 	Certain Waivers by Lakes	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	5.	 	Rights and Limitations with Respect to Amendments, Waivers and Other Actions
Under Facilities 	10	 
	 
	 	 	 	 	 	 	 	 
	 
	 	5.1	 	Rights and Limitations Applicable to FF&E Secured Parties	 	 	10	 
	 
	 	5.2	 	Limitation of Liability	 	 	11	 
	 
	 	 	 	 	 	 	 	 
	6.	 	Insolvency or Liquidation Proceedings 	12	 
	 
	 	 	 	 	 	 	 	 
	 
	 	6.1	 	Right to File Involuntary Bankruptcy	 	 	12	 
	 
	 	6.2	 	Certain Agreements and Consents by Lakes	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	7.	 	Representations and Warranties 	14	 
	 
	 	 	 	 	 	 	 	 
	 
	 	7.1	 	Organization	 	 	14	 
	 
	 	7.2	 	Authorization	 	 	14	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	 
	 	7.3	 	Binding Agreement	 	 	14	 
	 
	 	7.4	 	No Consent Required	 	 	14	 
	 
	 	7.5	 	No Conflict	 	 	14	 
	 
	 	7.6	 	Default	 	 	14	 
	 
	 	7.7	 	No Lien	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	8.	 	Miscellaneous Provisions	15	 
	 
	 	 	 	 	 	 	 	 
	 
	 	8.1	 	Notices; Addresses	 	 	15	 
	 
	 	8.2	 	Further Assurances	 	 	16	 
	 
	 	8.3	 	Waiver	 	 	16	 
	 
	 	8.4	 	Entire Agreement	 	 	16	 
	 
	 	8.5	 	Governing Law	 	 	16	 
	 
	 	8.6	 	Severability	 	 	17	 
	 
	 	8.7	 	Headings	 	 	17	 
	 
	 	8.8	 	Limitations on Liability	 	 	17	 
	 
	 	8.9	 	Consent of Jurisdiction, Waiver of Immunity	 	 	17	 
	 
	 	8.10	 	Successors and Assigns	 	 	17	 
	 
	 	8.11	 	Counterparts	 	 	17	 
	 
	 	8.12	 	No Third Party Beneficiaries	 	 	18	 
	 
	 	8.13	 	Amendments	 	 	18	 
	 
	 	8.14	 	Legends	 	 	18	 
	 
	 	8.15	 	Reinstatement	 	 	18	 
	 
	 	8.16	 	Attorneys’ Fees	 	 	19	 
	 
	 	8.17	 	JURY TRIAL WAIVER	 	 	19	 







ii











 





          This Intercreditor and Subordination Agreement (this “Agreement”) is dated as of September 30,
2008 and is by and between Lakes KAR-Shingle Springs, LLC, a Delaware limited liability company
(together with its successors, assigns and transferees, “Lakes”), as lender under the Lakes Notes
(as defined below) and as Manager under the Development and Management Agreement (each as defined
below) and Bank of Utah, a Utah state bank, as collateral agent (in such capacity and together with
its successors in such capacity, the “FF&E Agent”) for the FF&E Financing Parties (as defined
below).




RECITALS:




          A. Project. The Shingle Springs Tribal Gaming Authority (the “Authority”), a wholly-owned
unincorporated instrumentality of the Shingle Springs Band of Miwok Indians, a federally recognized
Indian tribe (the “Tribe”), is constructing and plans to develop and operate the Red Hawk Casino, a
casino complex with related ancillary facilities (originally contemplated to be known as the
Foothill Oaks Casino, and as such casino may hereafter be operated under any other name or names,
such complex and related facilities being herein referred to as the “Project”), located in El
Dorado County, California.




          B. Development and Management Agreement. Lakes and the Tribe entered into that certain First
Amended and Restated Memorandum of Agreement Regarding Gaming Development and Management Agreement,
dated as of October 13, 2003, as amended by an Amendment dated June 16, 2004, a Second Amendment
dated January 23, 2007, and a Third Amendment dated as of May 17, 2007 (as subject to the
Assignment and Assumption Agreement referred to below, the “Development and Management Agreement”),
pursuant to and in connection with which the Tribe agreed to pay to Lakes (as the manager of the
Project and, in such capacity the “Manager”) a management fee in consideration for Lakes’ services
relating to the management and operation of the Project and certain indemnification and other
payments (such management fees and other payments being herein collectively referred to as the
“Development and Management Agreement Obligations”) and pursuant to which Lakes advanced (or has
committed to advance) loans under a credit facility (the “Lakes Facility”) evidenced by the Lakes
Notes (as defined below) for the purposes described in the Development and Management Agreement.




          C. Assignment and Assumption Agreement. Pursuant to an Assignment and Assumption Agreement,
dated as of April 20, 2007 (the “Assignment and Assumption Agreement”), the Tribe assigned, and the
Authority assumed, the rights and obligations of the Tribe under the Development and Management
Agreement, the Lakes Notes and other Lakes Transaction Documents (as defined below).




          D. FF&E Facilities. The FF&E Financing Parties (as hereinafter defined) have agreed (subject
to certain conditions) to finance the Authority’s acquisition of the furniture, furnishings and
equipment for the Project and related transaction costs pursuant to (i) the Loan Agreement of even
date herewith (as amended from time to time, the “FF&E Loan Agreement”) among the Authority, the
Tribe, the FF&E Agent and the financial institutions listed on Schedule A attached thereto
(together with each successive and additional lender thereunder, the “Lenders”), and (ii) the Indenture and Note Purchase
Agreement of even date herewith (as amended from time to time, the “FF&E Indenture” and, together
with the FF&E




 









 







Loan Agreement, the “FF&E Facilities”) among the Authority, the Tribe, the FF&E Agent, the Trustee
party thereto (the “FF&E Trustee”), and the financial institutions listed on Schedule A attached
thereto (together with each successive and additional holder thereunder, and together with the
Lenders, the “FF&E Financing Parties”). The FF&E Facilities are secured by a first priority lien on
the FF&E Collateral (as defined below).




          E. Intercreditor and Subordination Agreement. The parties hereto desire to enter into this
Agreement in order to set forth certain provisions relating to the subordination of the Lakes
Obligations and certain other matters with respect thereto.




          NOW, THEREFORE, with reference to the foregoing recitals and in reliance thereon, and for
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:




     1. Definitions and General Provisions.



          1.1 Definitions. Unless otherwise defined herein or the context otherwise requires, terms
used in this Agreement, including the preamble and recitals, have the meanings provided in Appendix
I to the FF&E Loan Agreement and the FF&E Indenture. The following terms have the meanings set
forth below:




          “Agreement” has the meaning given in the preamble hereto.




          “Assignment and Assumption Agreement” has the meaning given in the recitals hereto.




          “Authority” has the meaning given in the recitals hereto.




          “Bankruptcy Law” means Title 11 of the United States Code entitled “Bankruptcy,” as now and
hereafter in effect, or any successor statute, and any other state or federal insolvency,
reorganization, moratorium or similar law for the relief of debtors now or hereafter in effect.




          “Bond Intercreditor Agreement” means the Intercreditor and Subordination Agreement dated as of
June 28, 2007, between Lakes, The Bank of New York Trust Company, N.A. as Trustee, and The Bank of
New York Trust Company, N.A., as Collateral Agent.




          “Development and Management Agreement” has the meaning given in the recitals hereto.




          “Development and Management Agreement Obligations” has the meaning given in the recitals
hereto.




          “Discharge” (i) in respect of the FF&E Facilities, means the indefeasible satisfaction and
discharge or other satisfaction or payment in cash in full of the FF&E
Secured Obligations, and (ii) in respect of the First Lien Secured Obligations, means
“Discharge” as defined in the Bond Intercreditor Agreement.




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          “Facility” or “Facilities” means, as the context requires, any or all of Lakes Facility and
the FF&E Facilities.




          “FF&E” means furniture, furnishings or equipment used in the ordinary course of the business
of the Authority.




          “FF&E Agent” has the meaning given in the preamble hereto.




          “FF&E Collateral” means “Collateral” as defined in the FF&E Security Agreement; provided,
however, that upon the release by the FF&E Agent of its security interest in any portion of the
FF&E Collateral, the FF&E Collateral shall exclude such released FF&E Collateral.




          “FF&E Facilities” has the meaning given in the recitals hereto.




          “FF&E Financing Agreements” means the FF&E Loan Agreement, the FF&E Indenture, this Agreement,
the FF&E Security Documents and any other agreement, document or instrument entered into or
delivered by the Authority or any of its Affiliates with or to the FF&E Agent or the FF&E Financing
Parties in connection with the financing of the FF&E.




          “FF&E Financing Parties” has the meaning given in the recitals hereto. 

          “FF&E
Indenture” has the meaning given in the recitals hereto.

          “FF&E Loan Agreement”
has the meaning given in the recitals hereto.




          “FF&E Secured Obligations” means all Obligations of the Authority to the FF&E Secured Parties
under the FF&E Financing Agreements.




          “FF&E Secured Parties” means, collectively, the FF&E Financing Parties, the FF&E Agent and the
FF&E Trustee.




          “FF&E Security Agreement” means the Security Agreement as of even date herewith between the
Authority and the FF&E Agent.




          “FF&E Security Documents” means, collectively, the FF&E Security Agreement and any guaranties,
deeds of trust, security agreements, pledge agreements, collateral agency agreements or collateral
account agreements or any other document creating or perfecting a Lien, security interest or other
preferential arrangement, and any related documents executed, filed, recorded or delivered from
time to time by the Authority in respect of any FF&E Secured Obligations.




          “FF&E Trustee” has the meaning given in the recitals hereto.




          “First Lien Secured Obligations” has the meaning given in the Bond Intercreditor Agreement.




          “Insolvency or Liquidation Proceeding” means (a) any case commenced by or



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against the Authority under any Bankruptcy Law, any other proceeding for the
reorganization, recapitalization or adjustment or marshalling of the assets or
liabilities of the Authority, any receivership or assignment for the benefit of
creditors relating to the Authority or any similar case or proceeding relative to
the Authority or its creditors, as such, in each case whether or not voluntary; (b)
any liquidation, dissolution, marshalling of assets or liabilities or other winding
up of or relating to the Authority, in each case whether or not voluntary and
whether or not involving bankruptcy or insolvency; or (c) any other proceeding of
any type or nature in which substantially all claims of creditors of the Authority
are determined and any payment or distribution is or may be made on account of such
claims.



          “Lakes” has the meaning given in the preamble hereto.




          “Lakes Facility” has the meaning given in the recitals hereto.




          “Lakes Notes” means the Interim Promissory Note and the Operating Note, each as defined in the
Development and Management Agreement.




          “Lakes Obligations” means any present or future Obligations of the Authority to or for the
benefit of Lakes or any of its Affiliates under the Lakes Transaction Documents or otherwise
(including without limitation the Obligations under the Lakes Notes and the Development and
Management Agreement Obligations), as each such Obligation may be refinanced, assumed, transferred
or replaced.




          “Lakes Transaction Documents” means the Development and Management Agreement, the Lakes Notes
and the other Transaction Documents (as defined in the Development and Management Agreement).




          “Manager” has the meaning given in the recitals hereto.




          “Obligations” means any principal (including reimbursement obligations with respect to letters
of credit whether or not drawn), interest (including, to the extent legally permitted, all interest
accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate,
including without limitation any applicable post-default rate, specified in any applicable
documentation, even if such interest is not enforceable, allowable or allowed as a claim in such
proceeding), premium (if any), fees, indemnifications, reimbursements, expenses and other
liabilities payable under any applicable documentation.




          “Project” has the meaning given in the recitals hereto.




          “Tribe” has the meaning given in the recitals hereto.




     1.2 Interpretation. To the extent that reference is made in this Agreement to any other
agreement, or to any term (including, without limitation, the term “FF&E Collateral”) defined in
any other agreement, or to any other provision of any other agreement, such reference shall refer
to such agreement as in effect as of the date hereof, and such term or provision shall continue to
have the original meaning thereof as of the
date hereof, in each case notwithstanding any termination, expiration or amendment of such
other agreement as may hereafter occur; provided, however, that to the extent that any agreement to
which both of the parties hereto are



4









 







parties is amended in accordance with the terms thereof and hereof, then any references herein to the agreement or terms and provisions of such agreement shall
be to such agreement or terms or provisions as so amended.



     2. Deferral and Subordination of Lakes Obligations.



          2.1 Deferral and Accrual of Lakes Obligations. Without limiting Section 2.3 below, Lakes
agrees that any payment of Lakes Obligations (a) not permitted to be paid pursuant to the FF&E
Facilities or (b) the payment of which will result in or cause an Event of Default under the FF&E
Facilities shall be deferred and shall accrue and may be paid only at such time as the payment of
such amounts so deferred would otherwise be permitted pursuant to the provisions of the FF&E
Facilities and would not result or cause an Event of Default under the FF&E Facilities, and Lakes
will not ask, demand, sue for, take or receive from the Authority, by set-off or in any other
manner, direct or indirect payment (whether in cash or property), any amounts so deferred or any
transfer of property in payment of or as additional security for any amounts so deferred. This
Section 2.1 shall not limit Lakes’ rights with respect to any payment of Lakes Obligations not
required to be so deferred, and Lakes may take any action with respect to any such payment so long
as such action is not prohibited by this Agreement and the FF&E Facilities.




          2.2 Subordination to FF&E Secured Obligations. Notwithstanding any provision of the Lakes
Transaction Documents to the contrary, all Lakes Obligations shall be subordinate and junior in
right of payment, to the extent and in the manner set forth in this Section 2, to the Discharge of
all FF&E Secured Obligations. For the avoidance of doubt, the FF&E Agent agrees that, subject to
the provisions of Section 2.3, at any time prior to the Discharge of the FF&E Secured Obligations,
the Authority may make, and Lakes may receive and retain, payments with respect to the Lakes
Obligations, so long as such payments are permitted to be paid pursuant to, and will not result in
or cause an Event of Default under, the FF&E Facilities.




          2.3 Default on FF&E Secured Obligations. In the event that any Event of Default shall occur
and be continuing with respect to the FF&E Facilities, or if any payment of Lakes Obligations would
create an Event of Default under the FF&E Facilities, unless and until the prior Discharge of all
FF&E Secured Obligations, the right of Lakes to receive any payments or other distributions with
respect to Lakes Obligations shall be deferred until such Event of Default is no longer continuing
or the making of such payment will not result in an Event of Default, as the case may be.




          2.4 Deferral Not a Default. Lakes agrees that any deferral pursuant to this Section 2 of the
payment of any Lakes Obligations shall not constitute a default under any Lakes Transaction
Document so long as the FF&E Facilities have not been accelerated. Notwithstanding the foregoing,
this Agreement shall not limit, restrict or otherwise impair any right of Lakes to terminate the
Development and Management Agreement or any other Lakes Transaction Document in accordance with the
terms thereof other than as a result of any such non-payment under the Lakes Notes.




          2.5 Continuing Subordination. The subordination effected by this Section 2



5









 






is a continuing subordination and may not be modified or terminated by Lakes until the
prior Discharge of all FF&E Secured Obligations.




          2.6 Subordination of the Lakes Obligations upon Insolvency or Liquidation Proceeding. Without
limiting the application of Section 6, in the event of any distribution, division or application,
partial or complete, voluntary or involuntary, by operation of law or otherwise, of all or any part
of the assets of the Authority or the proceeds thereof to creditors of the Authority or upon any
Indebtedness or other Obligation of the Authority, by reason of the liquidation, dissolution or
other winding up, partial or complete, of the Authority, or any Insolvency or Liquidation
Proceeding, then and in any such event:




               2.6.1 The holders of FF&E Secured Obligations shall be entitled to receive payment in full in
cash of all such FF&E Secured Obligations before Lakes shall be entitled to receive any payment or
other distributions on, or with respect to, the Lakes Obligations;



               2.6.2 Any payment or distribution of any kind or character, whether in cash, securities or
other property, which but for these provisions would be payable or deliverable upon or with respect
to the Lakes Obligations shall instead, subject to the rights under the Bond Intercreditor
Agreement of the holders of the First Lien Secured Obligations or any trustee or agent for such
holders, be paid or delivered directly to the FF&E Agent for application on the FF&E Secured
Obligations, whether then due or not due, until such FF&E Secured Obligations shall have first been
Discharged;



               2.6.3 Subject to the condition subsequent that the First Lien Secured Obligations shall have
been Discharged, (a) Lakes hereby irrevocably authorizes and empowers the FF&E Agent, and appoints
the FF&E Agent as attorney-in-fact, to demand, sue for, collect and receive every such payment or
distribution in respect of the Lakes Obligations and give acquittance therefor, and to file and
vote claims in respect of the Lakes Obligations (in bankruptcy proceedings or otherwise) and take
such other actions, in the FF&E Agent’s own name or otherwise, as the FF&E Agent may deem necessary
or advisable for the enforcement of these provisions, and (b) Lakes shall duly and promptly take
such action as may be reasonably requested by the FF&E Agent to assist in the collection of the
Lakes Obligations for the account of any holder of the FF&E Secured Obligations, and to file
appropriate proofs of claim with respect to the Lakes Obligations and to vote the same, and to
execute and deliver to the FF&E Agent on demand such powers of attorney, proofs of claim,
assignments of claim or other instruments as may be reasonably requested by the FF&E Agent to
enable the FF&E Agent or any other holder of FF&E Secured Obligations to enforce any and all claims
upon or with respect to the Lakes Obligations and to collect and receive any and all payments or
distributions which may be payable or deliverable at any time upon or with respect to the Lakes
Obligations. In addition, Lakes shall not take any action (whether oral, written or otherwise) in
contravention of any action of the FF&E Agent duly taken and permitted hereunder. Such appointment as attorney-in-fact pursuant to this Section 2.6.3
is irrevocable and coupled with an interest until payment in full in cash and complete performance
of all the FF&E Secured Obligations. The FF&E Agent may appoint a substitute attorney-in-fact.
Lakes ratifies all actions reasonably taken by the attorney-in-fact following the Discharge of the
First Lien Secured Obligations but, nevertheless, if the FF&E Agent requests, Lakes will
specifically ratify any such action taken by



6









 




the attorney-in-fact by executing and delivering to
the attorney-in-fact or to any entity designated by the attorney-in-fact all documents necessary to
effect such ratification; and




               2.6.4 Following any Insolvency or Liquidation Proceedings or Event of Default under the FF&E
Facilities, Lakes will, subject to the rights under the Bond Intercreditor Agreement of the holders
of the First Lien Secured Obligations or any trustee or agent for such holders, forthwith deliver
any direct or indirect payment thereafter made to it upon or with respect to the Lakes Obligations
prior to the Discharge of all FF&E Secured Obligations to the FF&E Agent in precisely the form
received (except for the endorsement or assignment by Lakes where necessary) for application on the
FF&E Secured Obligations, whether then due or not due. Until so delivered, the payment or
distribution shall, subject to the rights under the Bond Intercreditor Agreement of the holders of
the First Lien Secured Obligations or any trustee or agent for such holders, be held in trust by
Lakes as property of the holders of the FF&E Secured Obligations. In the event of the failure by
Lakes to make any such endorsement or assignment, following the Discharge of the First Lien Secured
Obligations, the FF&E Agent, or any of its officers or employees, are hereby irrevocably authorized
to make the same.



          2.7 Judgment Liens. In the event Lakes becomes a judgment Lien creditor in respect of any
assets of the Authority as a result of its enforcement of its rights as a creditor with respect to
the Lakes Obligations, such judgment Lien shall be subject to the terms of this Agreement for all
purposes (including in relation to the FF&E Secured Obligations).




          2.8 When Proceeds Must be Paid Over. Any payment received by Lakes (including, without
limitation, payments and prepayments made for application against the Lakes Obligations) prior to
the Discharge of all FF&E Secured Obligations when such payment is not expressly permitted by the
terms of this Agreement or the FF&E Facilities shall, subject to the rights under the Bond
Intercreditor Agreement of the holders of the First Lien Secured Obligations or any trustee or
agent for such holders, be held in trust for the benefit of the holders of FF&E Secured Obligations
and shall, following the Discharge of the First Lien Secured Obligations, be turned over to the
FF&E Agent promptly upon the request of the FF&E Agent.




          2.9 Subrogation. With respect to the value of any payments or distributions in cash, property
or other assets that Lakes pays over to the FF&E Agent or any of the FF&E Secured Parties under the
terms of this Agreement, Lakes shall be subrogated to the rights of the FF&E Agent or such FF&E
Secured Parties; provided, however, that, Lakes hereby agrees not to assert or enforce any such
rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of
all FF&E Secured Obligations has occurred. To the extent permitted by applicable law, the value of any
payments or distributions in cash, property or other assets received by Lakes that are paid over to
the FF&E Agent or any FF&E Secured Party pursuant to this Agreement shall not reduce any of the
Lakes Obligations.




     3. FF&E Collateral.



          3.1 Separate Collateral. The FF&E Collateral secures only the FF&E Secured Obligations and
not any of the Lakes Obligations, and, as provided in Section 7.7, Lakes shall not have any Liens
thereon or any security interest therein.




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          3.2 Confirmation of Liens. Lakes hereby confirms and agrees that the FF&E Secured Obligations
shall be secured by a first priority lien on, and security interest in, the FF&E Collateral,
notwithstanding (a) the availability of any other collateral, (b) the execution, delivery,
recording, filing or perfection of any of the FF&E Security Documents, or the order of such
execution, delivery, recording, filing or perfection or the priorities which would otherwise result
therefrom, (c) the fact that any Lien or security interest created by the FF&E Security Documents,
or any claim with respect thereto, is or may be subordinated, avoided or disallowed in whole or in
part under any Bankruptcy Law, or (d) any other matter whatsoever. All provisions of this
Agreement, including but not limited to, all matters relating to the creation, validity,
perfection, priority, subordination and release of the Liens and security interests intended to be
created by any FF&E Security Document and all provisions regarding the allocation and priority of
payments with respect to any FF&E Financing Agreement shall survive any Insolvency or Liquidation
Proceeding and be fully enforceable by and against each FF&E Secured Party during any such
proceeding. In the event of an Insolvency or Liquidation Proceeding, Lakes further confirms and
agrees that the FF&E Secured Obligations due and outstanding under and with respect to the FF&E
Financing Agreements shall include all principal, additional advances permitted thereunder,
interest, default interest, London Interbank Offered Rate (LIBOR) breakage and swap breakage, post
petition interest and all other amounts due thereunder, for periods before and for periods after
the commencement of any such proceedings, even if the claim for such amounts is disallowed pursuant
to applicable law, and all proceeds from the sale or other disposition of the FF&E Collateral shall
be paid to the FF&E Secured Parties in the order and priority provided for in this Section 3
notwithstanding the disallowance of any such claim or the invalidity or subordination of any Lien
on or security interest in the FF&E Collateral under applicable law.




     4. Rights and Limitation of Actions With Respect to FF&E Collateral.



          4.1 Rights and Limitations Applicable to Lakes.




               4.1.1 At any time prior to the Discharge of all FF&E Secured Obligations, Lakes shall not, and
shall not authorize or direct any other Person acting for Lakes to, exercise any right or remedy
with respect to any FF&E Collateral (including any right of set-off) or take any action to enforce,
collect or realize upon any FF&E Collateral, including, without limitation, any right, remedy or
action to:





	 	(a)	 	take possession of or control over any FF&E Collateral;
	 
	 	(b)	 	exercise any collection rights in respect of any FF&E Collateral;
	 
	 	(c)	 	exercise any right of set-off against any property subject to any Lien
securing any FF&E Secured Obligations;
	 
	 	(d)	 	foreclose upon any FF&E Collateral or take or accept any transfer of
title in lieu of foreclosure upon any FF&E Collateral;
	 
	 	(e)	 	enforce any claim to the proceeds of insurance upon any FF&E
Collateral;




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	 	(f)	 	deliver any notice, claim or demand relating to the FF&E Collateral to
any Person (including any securities intermediary, depositary bank or
landlord) in the possession or control of any FF&E Collateral or acting as
bailee, custodian or agent for any of the FF&E Secured Obligations in
respect of any FF&E Collateral;
	 
	 	(g)	 	otherwise enforce any remedy available upon default for the
enforcement of any Lien upon any FF&E Collateral;
	 
	 	(h)	 	deliver any notice or commence any proceeding for any of the foregoing
purposes; or
	 
	 	(i)	 	seek relief in any Insolvency or Liquidation Proceeding permitting it
to do any of the foregoing.





               4.1.2 Nothing in this Agreement or any other FF&E Financing Agreement shall affect Lakes’
rights vis a vis creditors of the Authority other than the FF&E Secured Parties.



          4.2 Rights and Limitations Applicable to the FF&E Secured Parties.




               4.2.1 At all times until Discharge of all FF&E Secured Obligations, the FF&E Agent at the
direction of the Required Financing Parties shall have the exclusive right to manage, perform and
enforce the terms of the FF&E Security Documents with respect to all FF&E Collateral and to
exercise and enforce all privileges and rights thereunder according to its discretion and exercise
of its business judgment, including, without limitation, the exclusive right to take the actions
enumerated in clauses (a) through (i) of Section 4.1.1. Without limiting the generality of the
foregoing, if an Event of Default has occurred and is continuing under the FF&E Facilities, the
FF&E Agent shall have the right to (i) enter the Project’s real property for the purpose of
inspecting, maintaining or protecting the FF&E Collateral and (ii) remove the FF&E Collateral
(including all records and other documentation relating thereto) and take such additional steps as
are reasonably necessary or appropriate to prepare such FF&E Collateral for a foreclosure sale or
other exercise of remedies with respect to such FF&E Collateral under the FF&E Financing
Agreements.



          In connection therewith, provided that each of the FF&E Secured Parties acts in a commercially
reasonable manner and otherwise in accordance with applicable law, Lakes waives any and all rights
to affect the method or challenge the appropriateness of any action by the FF&E Secured Parties and
hereby consents to each of the FF&E Secured Parties exercising or not exercising such rights and
remedies.




          4.3 Notification of Events of Default. Each party hereto hereby agrees, for the benefit of the
other party, to use its best efforts to provide written notice to the other party within ten (10)
Business Days after obtaining actual knowledge of the occurrence or assertion of an Event of
Default under their respective Facilities. No party shall have any liability to the other for
failing to provide any such notice.




9









 








          4.4 Certain Waivers by Lakes. To the fullest extent permitted by law, Lakes waives and agrees
not to assert or enforce, at any time prior to the Discharge of all FF&E Secured Obligations:





	 	(a)	 	any right of subrogation to the rights or interests of the FF&E Secured Parties
or any claim or defense based upon impairment of any such right of subrogation;
	 
	 	(b)	 	any right of marshalling accorded to a junior lienholder, as against a priority
lienholder, under equitable principles; and
	 
	 	(c)	 	any statutory right of appraisal or valuation accorded to a junior lienholder
in a proceeding to foreclose a senior Lien;




in each case, that otherwise may be enforceable in respect of any Lien securing any of the Lakes
Obligations as against the FF&E Secured Parties.




     5. Rights and Limitations with Respect to Amendments, Waivers and Other Actions
Under Facilities.



          5.1 Rights and Limitations Applicable to FF&E Secured Parties.




               5.1.1 The FF&E Secured Parties may at any time and from time to time, without the consent of
or notice to Lakes, without incurring any responsibility or liability to Lakes and without in any
manner prejudicing, affecting or impairing the ranking or priority of the Liens and the security
interests in the FF&E Collateral created by the FF&E Security Documents or the rights and
obligations of the parties hereunder, take (or instruct the FF&E Agent to take) any of the
following, subject to the provisions of Section 1.2 and
Section 5.2:




	 	(a)	 	make loans and advances to the Authority (including pursuant to any Facility
Increase) or issue, guaranty or obtain letters of credit for account of the
Authority or otherwise extend credit to the Authority in any amount and on any
terms, whether pursuant to a commitment or as a discretionary advance and whether
or not any default or Event of Default or failure of condition is then continuing;
	 
	 	(b)	 	change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, compromise, accelerate, extend or, subject to
Section 8.13, refinance any FF&E Secured Obligations or any agreement, guaranty,
Lien or obligation of the Authority or any other Person in any manner related
thereto, or otherwise amend, supplement or change in any manner any FF&E Secured
Obligations or Liens securing FF&E Secured Obligations or any such agreement,
guaranty, Lien or obligation;
	 
	 	(c)	 	increase or reduce the amount of any FF&E Secured Obligation or the interest,
premium, fees or other amounts payable in respect thereof;




10









 






	 	(d)	 	release or discharge any FF&E Secured Obligation or any guaranty thereof or any
agreement or obligation of the Authority or any other Person with respect thereto;
	 
	 	(e)	 	take or fail to take any first priority Lien or any other collateral security
for any FF&E Secured Obligation or take or fail to take any action which may be
necessary or appropriate to ensure that any Lien securing an FF&E
Secured Obligation or any other Lien upon any property is duly enforceable
or perfected or entitled to priority as against any other Lien or to
ensure that any proceeds of any property subject to any Lien are applied
to the payment of any FF&E Secured Obligation or any other obligation
secured thereby;
	 
	 	(f)	 	release, discharge or permit the lapse of any or all Liens securing an FF&E
Secured Obligation or any other Liens upon any property at any time;
	 
	 	(g)	 	exercise or enforce, in any manner, order or sequence, or fail to exercise or
enforce, any right or remedy against the Authority or any collateral security or
any other Person or property in respect of any FF&E Secured Obligation or any Lien
securing any FF&E Secured Obligation or any right or power under the FF&E Security
Documents and hereunder and apply any payment or proceeds of collateral in any
order of application; or
	 
	 	(h)	 	sell, exchange, release, foreclose upon or otherwise deal with any property
that may at any time be subject to any Lien securing any FF&E Secured Obligation.





               5.1.2 No (a) exercise, delay in exercising or failure to exercise any right arising under the
FF&E Security Documents or this Agreement, (b) act or omission of any FF&E Secured Party in respect
of the Authority or any other Person or any collateral security for any FF&E Secured Obligation or
any right arising under the FF&E Security Documents and hereunder, (c) change, impairment, or
suspension of any right or remedy of any FF&E Secured Party, or (d) other act, failure to act,
circumstance, occurrence or event, including, without limitation, the
acts listed in Section 5.1.1,
which, but for this provision, would or could act as a release or exoneration of the agreements or
obligations of Lakes hereunder shall in any way affect, decrease, diminish or impair any of
such agreements or obligations.



               5.1.3 Waivers and Deferrals of Payments. Lakes may, without the consent of the FF&E Secured
Parties, defer any payments due under the Lakes Transaction Documents or waive any provisions
thereof.



          5.2 Limitation of Liability




               5.2.1 Except as expressly set forth herein, neither party hereto will have any duty, express
or implied, fiduciary or otherwise, to the other party.



               5.2.2 To the maximum extent permitted by law, Lakes waives any claim it may have against any
FF&E Secured Party with respect to or arising out of any action or



11









 







failure to act or any error of
judgment or negligence (but not gross negligence, willful misconduct or any breach of this
Agreement) on the part of any FF&E Secured Party or their respective directors, officers, employees
or agents with respect to any exercise of rights or remedies in respect of the FF&E Secured
Obligations or under any FF&E Security Document or any transaction relating to the FF&E Collateral.
Neither any FF&E Secured Party nor any of their respective directors, officers, employees or agents
will be liable for failure to demand, collect or realize upon any of the FF&E Collateral or for any
delay in doing so, except to the extent arising out of breach of this Agreement, or will be under
any obligation to sell or otherwise dispose of any FF&E Collateral upon the request of the
Authority or upon the request of Lakes or any other Person or to take any other action whatsoever
with regard to the FF&E Collateral or any part thereof.



               5.2.3 Each party (subject to the terms and conditions of its respective Facility) shall be
responsible for keeping itself informed of the financial condition of the Authority and its
Affiliates and all other circumstances bearing upon the risk of nonpayment of any FF&E Secured
Obligations. Except as set forth in Section 4.3, no FF&E Secured Party shall have any duty to
advise Lakes of information regarding such condition or circumstances or as to any other matter. If
either party, in its sole discretion, undertakes at any time or from time to time to provide any
such information to the other party, it shall be under no obligation to provide any similar
information on any subsequent occasion, to provide any additional information, or undertake any
investigation, or to disclose any information which, pursuant to accepted or reasonable commercial
finance practice, it wishes to maintain confidential.



     6. Insolvency or Liquidation Proceedings



          6.1 Right to File Involuntary Bankruptcy. Notwithstanding any other provision of this
Agreement to the contrary, Lakes shall be entitled, at any time and at its sole discretion, to
initiate or join as a petitioning creditor in an involuntary Insolvency or Liquidation Proceeding
against the Authority; provided, however, that, until the prior Discharge of all FF&E Secured
Obligations, Lakes shall not, without the prior written consent of the FF&E Agent, acting at the
direction of the FF&E Financing Parties, initiate or join as a petitioning creditor in an
involuntary Insolvency or Liquidation Proceeding against the Authority.




          6.2 Certain Agreements and Consents by Lakes.




               6.2.1 At no time prior to the Discharge of all FF&E Secured Obligations shall Lakes:




	 	(a)	 	request judicial relief in an Insolvency or Liquidation Proceeding or in any
other court, that would hinder, delay, limit or prohibit the exercise or
enforcement of any right or remedy otherwise available to the holders of FF&E
Secured Obligations that would limit, invalidate, avoid or set aside any Lien on
the FF&E Collateral securing the FF&E Secured Obligations;
	 
	 	(b)	 	oppose or otherwise contest any motion for relief from the automatic stay or
from any injunction against foreclosure or enforcement of Liens on the FF&E
Collateral securing the FF&E Secured Obligations made by any




12









 






	 	 	 	holder of FF&E Secured Obligations in any Insolvency or Liquidation Proceeding;






	 	(c)	 	oppose or otherwise contest any exercise by any holder of FF&E Secured
Obligations of the right to credit bid FF&E Secured Obligations at any sale in
foreclosure of any Lien on the FF&E Collateral securing the FF&E
Secured Obligations; or
	 
	 	(d)	 	oppose or otherwise contest any other request for judicial relief made in any
court by any holder of FF&E Secured Obligations relating to the enforcement of any
Lien on the FF&E Collateral securing the FF&E Secured Obligations.





               6.2.2 If, in any Insolvency or Liquidation Proceeding prior to the Discharge of all FF&E
Secured Obligations, the FF&E Secured Parties:




	 	(a)	 	consent to any order for use of cash collateral for payment of (i)
expenses reasonably necessary or appropriate for the conduct of the Project
or for the preservation of the FF&E Collateral, or (ii) administrative
expenses arising in connection with the Insolvency or Liquidation
Proceeding;
	 
	 	(b)	 	consent to any order granting any priming Lien, replacement Lien, cash
payment or other relief on account of FF&E Secured Obligations as adequate
protection (or its equivalent) for the interests of the FF&E Secured Parties
in property subject to the Liens on the FF&E Collateral securing the FF&E
Secured Obligations in connection with any order for use of cash collateral;
or
	 
	 	(c)	 	consent to any order relating to any sale of the FF&E Collateral and
providing, to the extent the sale is to be free and clear of Liens, that all
such Liens shall attach to the proceeds of the sale, then, Lakes will not oppose or otherwise contest the entry of such order.





               6.2.3 Lakes will not assert or enforce, at any time prior to the Discharge of the FF&E Secured
Obligations, any claim under §506(c) of the United States Bankruptcy Code with respect to the Liens
on the FF&E Collateral securing the FF&E Secured Obligations for costs or expenses of preserving or
disposing of any FF&E Collateral.



               6.2.4 If, for purposes of valuation of the secured claims of the FF&E Secured Parties in any
Insolvency or Liquidation Proceeding, the FF&E Secured Parties determine, and the FF&E Agent or any
other FF&E Secured Party notifies Lakes, that the FF&E Collateral should be valued as of any
particular time in the period from the date of commencement of such Insolvency or Liquidation
Proceeding to the date of confirmation of any plan of reorganization or other dispositive
restructuring plan therein, then Lakes shall not oppose or otherwise contest that the date as of
which such secured claims should be valued is the date



13









 







chosen by the FF&E Secured Parties. Lakes shall not have the right to assert the lack of adequate protection of their Liens or the collateral
securing the Lakes Obligations as a basis for opposing a motion or other relief sought in any
Insolvency or Liquidation Proceeding and approved by the FF&E Secured Parties.



     7. Representations and Warranties. Lakes represents, warrants and covenants to the FF&E Agent
on behalf of the FF&E Secured Parties as follows:



          7.1 Organization. It is duly organized and is validly existing under the laws of the
jurisdiction under which it was organized with full power to execute, deliver, and perform this
Agreement and consummate the transactions contemplated hereby.




          7.2 Authorization. All actions necessary to authorize its execution, delivery and performance
of this Agreement have been duly taken, and all such actions continue in full force and effect as
of the date hereof.




          7.3 Binding Agreement. It has duly executed and delivered this Agreement and this Agreement
constitutes the legal, valid, and binding agreement of Lakes enforceable in accordance with its
terms and subject to (a) Bankruptcy Laws, and (b) principles of equity, which may apply regardless
of whether a proceeding is brought in law or in equity.




          7.4 No Consent Required. To the best of its knowledge, no consent of any other party and no
consent, license, approval, or authorization of, or exemption by, or registration or declaration or
filing with, any governmental authority, bureau or agency is required in connection with its
execution, delivery, or performance of this Agreement or consummation of the transactions
contemplated by this Agreement.




          7.5 No Conflict. None of the execution, delivery, and performance of this Agreement nor the
consummation of the transactions contemplated by this Agreement will (a) violate or conflict with
any provision of the organizational or governing documents of Lakes; (b) to the best of its
knowledge, violate, conflict with, or result in the breach or termination of, or otherwise give any
other contracting party the right to terminate, or constitute (or with notice or lapse of time, or
both, would constitute) a
default under the terms of any contract, mortgage, lease, bond, indenture, agreement, or other
instrument to which Lakes is a party or to which any of its properties are subject; (c) to the best
of its knowledge, result in the creation of any Lien, charge, encumbrance, mortgage, lease, claim,
security interest, or other right or interest upon its properties or assets pursuant to the terms
of any such contract, mortgage, lease, bond, indenture, agreement, franchise, or other instrument;
(d) violate any judgment, order, injunction, decree, or award of any court, arbitrator,
administrative agency, or governmental or regulatory body of which it has knowledge against, or
binding upon Lakes or upon any of its securities, properties, assets, or business; or (e) to the
best of its knowledge, constitute a violation by Lakes of any statute, law, or regulation that is
applicable to Lakes.




          7.6 Default. There exist no conditions that would constitute a default (or an event which with
notice or lapse of time, or both, would constitute a default) by Lakes under this Agreement.




14









 








          7.7 No Lien. Lakes (i) acknowledges that it does not have any Lien that presently attaches
in, to or on the FF&E Collateral, and (ii) accordingly agrees that there are no presently effective
filings or recordings including UCC financing statements that perfect any Lien in its favor on the
FF&E Collateral. Lakes further agrees that no security interest granted by the Authority to Lakes
shall attach to the FF&E Collateral unless and until (x) the FF&E Facilities (and any renewal,
refunding, replacement, or refinancing thereof) shall be Discharged, or (y) with respect to any
item of FF&E Collateral, such item otherwise shall be released and no longer constitute FF&E
Collateral. Lakes further agrees that any filings and recordings in favor of Lakes reflecting any
security interest in or on the FF&E Collateral presently have no force or effect with respect to
the FF&E Collateral and will have no force or effect unless, until and to the extent that Lakes’
security interest so attaches.




     8. Miscellaneous Provisions.



          8.1 Notices; Addresses. Any communications between the parties hereto or notices herein to be
given may be given to the following addressees:




	 	 	 
	 
	 	 
	If to Lakes:

	 	Lakes KAR-Shingle Springs, LLC
	 

	 	c/o Lakes Entertainment, Inc.
	 

	 	130 Cheshire Lane
	 

	 	Minnetonka, Minnesota 55305
	 

	 	Attention: Timothy J. Cope, President
	 
	 	 
	 

	 	with a copy to:
	 
	 	 
	 

	 	Lakes Entertainment, Inc.
	 

	 	130 Cheshire Lane
	 

	 	Minnetonka, Minnesota 55305
	 

	 	Facsimile: (952) 449-9353
	 

	 	Attention: Damon Schramm, General Counsel
	 
	 	 
	with a copy to:
	 	 
	 

	 	Hamilton Quigley & Twait PLC
	 

	 	First National Bank Building, Suite W1450
	 

	 	332 Minnesota Street
	 

	 	Saint Paul, Minnesota 55101
	 

	 	Facsimile: (651) 602-9976
	 

	 	Attention: Kevin Quigley
	 
	 	 
	with a copy to:
	 	 
	 

	 	Gray Plant Mooty
	 

	 	500 IDS Center
	 

	 	80 South Eighth Street
	 

	 	Minneapolis, Minnesota 55402-3796
	 

	 	Facsimile: (651) 632-4050






15









 






	 	 	 
	 

	 	Attention: Daniel R. Tenenbaum
	 
	 	 
	If to FF&E Agent:

	 	Bank of Utah
	 

	 	Attn: Corporate Trust Services
	 

	 	200 E. South Temple, Suite 210
	 

	 	Salt Lake City, UT 84111
	 

	 	Phone: (801) 924-3690
	 

	 	Fax: (801) 746-3519






          All notices or other communications required or permitted to be given hereunder shall be in
writing and shall be considered as properly given (a) if delivered in person, (b) if sent by
reputable overnight delivery service, (c) in the event overnight delivery services are not readily
available, if mailed by first class mail, postage prepaid, registered or certified with return
receipt requested or (d) if sent by telecopy with correct answer back received. Notice so given
shall be effective upon receipt by the addressee, except that any communication or notice so
transmitted by telecopy or other direct written electronic means shall be deemed to have been
validly and effectively given on the day (if a Business Day and, if not, on the next following
Business Day) on which it is validly transmitted if transmitted before 4:00 p.m., recipient’s time,
and if transmitted after that time, on the next following Business Day; provided, however, that if
any notice is tendered to an addressee and the delivery thereof is refused by such addressee, such
notice shall be effective upon such tender. Any party shall have the right to change its address
for notice hereunder to any other location by giving of no less than twenty (20) days’ notice to
the other parties in the manner set forth hereinabove.




          8.2 Further Assurances. Each party hereto (a) shall deliver to the other party such
instruments, agreements, certificates and documents as any such Person may reasonably request to
confirm the validity and priority of the Liens on and security interests in the FF&E Collateral
granted pursuant to the FF&E Security Documents as affected hereby, (b) shall fully cooperate with
each other and (c) shall perform all
additional acts reasonably requested by any such Person to effect the purposes of this
Agreement.




          8.3 Waiver. Any waiver, permit, consent or approval of any kind or character on the part of
either of the parties hereto of any Event of Default or other breach or default under this
Agreement or any waiver on the part of either of the parties hereto of any provision or condition
of this Agreement or any other operative document, must be in writing and shall be effective only
to the extent in such writing specifically set forth.




          8.4 Entire Agreement. As between the parties hereto, this Agreement and any agreement,
document or instrument attached hereto or referred to herein integrate all the terms and conditions
mentioned herein or incidental hereto and supersede all oral negotiations and prior writings in
respect to the subject matter hereof, all of which negotiations and writings are deemed void and of
no force and effect. As among the parties hereto, in the event of any conflict between the terms of
this Agreement and the terms of the FF&E Facilities, the terms of this Agreement shall control.




          8.5 Governing Law. This Agreement shall be governed by the laws of State


16









 







of New York of the United States of America and shall for all purposes be governed by and
construed in accordance with the laws of such state without regard to the conflict
of law rules thereof other than Sections 5-1401 and 5-1402 of the New York General
Obligations Law.




          8.6 Severability. In case any one or more of the provisions contained in this Agreement should
be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby, and the parties
hereto shall enter into good faith negotiations to replace the invalid, illegal or unenforceable
provision.




          8.7 Headings. Section headings have been inserted in this Agreement as a matter of
convenience for reference only and it is agreed that such headings are not a part of this Agreement
and shall not be used in the interpretation of any provision of this Agreement.




          8.8 Limitations on Liability. In addition to requirements under Section 5.2, no claim shall be
made by either party hereto or any of its Affiliates against the other party hereto or any of the
other party’s Affiliates, directors, employees, attorneys or agents for any special, indirect,
consequential or punitive damages (whether or not the claim therefor is based on contract, tort or
duty imposed by law), in connection with, arising out of or in any way related to the transactions
contemplated by this Agreement or any act or omission or event occurring in connection therewith;
and each party hereto hereby waives, releases and agrees not to sue upon any such claim for any
such special, indirect, consequential or punitive damages, whether or not accrued and whether or
not known or suspected to exist in its favor.




          8.9 Consent of Jurisdiction, Waiver of Immunity. Any legal action or proceeding arising out
of this Agreement may be brought in or removed to the courts of the State of New York, in and for
the County of New York, or of the United States of
America for the Southern District of New York. By execution and delivery of this Agreement,
each party hereto accepts, for its and in respect of its property, generally and unconditionally,
the jurisdiction of the aforesaid courts for legal proceedings arising out of or in connection with
this Agreement and Lakes irrevocably consents to the appointment of CT Corporation, a Wolters
Kluwer company, located at 111 Eighth Avenue, 13th Floor; New York, NY 10011; telephone:
212-590-9310; facsimile: 212-590-9190, as its agent to receive service of process in New York, New
York. Nothing herein shall affect the right to serve process in any other manner including judicial
or non-judicial foreclosure of real property interests which are part of the FF&E Collateral. Each
party hereto hereby waives any right to stay or dismiss any action or proceeding under or in
connection with any or all of the Project, this Agreement or any other operative document brought
before the foregoing courts on the basis of forum non-conveniens.




          8.10 Successors and Assigns. The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns; provided,
however, this Agreement shall terminate upon the Discharge of the FF&E Secured Obligations.




          8.11 Counterparts. This Agreement may be executed in one or more duplicate counterparts and
when signed by all of the parties hereto listed below shall constitute a single binding agreement.




17









 








          8.12 No Third Party Beneficiaries. Except for the FF&E Financing Parties, the parties hereto
do not intend the benefits of this Agreement to inure to the benefit of nor shall it be enforceable
by any third party (including, without limitation, the Authority or any of its Affiliates) nor
shall this Agreement be construed to make or render either party hereto liable to any third party
(including, without limitation, the Authority or any of its Affiliates) for the performance or
failure to perform any obligations hereunder.




          8.13 Amendments.




               8.13.1 Upon (a) any refinancing in whole or in part of any Facility or (b) any transfer or
assignment, any such new lender shall be bound by the terms of this Agreement (and, with respect to
any refinancing of the FF&E Secured Obligations, the financing agreements relating thereto shall
incorporate the provisions of the FF&E Financing Agreements referred to in Section 2 with respect
to permitted payments of the Lakes Obligations) and the parties hereto hereby agree to execute and
deliver an amendment to this Agreement with such new lender, or an agent or trustee on its behalf,
to make such Person a party hereunder.



               8.13.2 Except as otherwise set forth in this Section 8.13.2, no amendment, modification or
waiver of any of the provisions of this Agreement shall be deemed to be made unless the same shall
be in a writing signed by each party hereto.



          8.14 Legends. Lakes (to the extent that approval is not required by the Chairman of the
National Indian Gaming Commission) agrees that each Lakes
Transaction Document assigned to a third party shall include the following language:





“Notwithstanding anything herein to the contrary, the lien and security interest
granted to Lakes pursuant to this Agreement and the exercise of any right or
remedy by Lakes hereunder are subject to the provisions of the Intercreditor and
Subordination Agreement, dated as of September 30, 2008 (as amended, restated,
supplemented or otherwise modified from time to time, the “Intercreditor and
Subordination Agreement”), between Bank of Utah, as FF&E Agent, and Lakes
KAR-Shingle Springs, LLC. In the event of any conflict between the terms of the
Intercreditor and Subordination Agreement and this Agreement, the terms of the
Intercreditor and Subordination Agreement shall govern and control (all defined
terms having the meanings ascribed thereto in the Intercreditor and Subordination
Agreement).”



          8.15 Reinstatement. If the payment of any amount applied to the FF&E Secured Obligations is
later avoided, or rescinded (including by settlement of any claim for avoidance or rescission) or
otherwise set aside, then:





	 	(a)	 	to the fullest extent lawful, all claims for the payment of such amount as FF&E
Secured Obligations and, to the extent securing such claims, all such Liens on the
FF&E Collateral under the FF&E Security Documents will be reinstated and entitled
to the benefits hereof, and




18









 






	 	(b)	 	if a Discharge of FF&E Secured Obligations became effective prior to such
reinstatement, all obligations of Lakes that were terminated as a result of such
Discharge of FF&E Secured Obligations shall be concurrently reinstated to the
extent such claims and Liens under the FF&E Security Documents are reinstated,
beginning on such date but prospectively only (and not retroactively), as though no
FF&E Secured Obligations or Liens under the FF&E Security Documents had been
outstanding at any time prior to such date and will remain effective until the
claims for such amount are paid in full in cash.





          8.16 Attorneys’ Fees. Unless paid by the Authority, the prevailing party in any dispute or
controversy hereunder shall be entitled to an award of its reasonable attorneys’ fees.




          8.17 JURY TRIAL WAIVER. EACH PARTY HERETO AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE
TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST WITH REGARD TO THIS AGREEMENT, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN
CONNECTION HEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY
EACH PARTY, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE
RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE.




[SIGNATURE PAGE FOLLOWS]





19











 





          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers or agents thereunto duly authorized as of the day and year first above written.




	 	 	 	 	 
	 	Lakes:



LAKES KAR-SHINGLE SPRINGS, LLC,

a Delaware limited liability company

 	 
	 	By:  	/s/ Timothy Cope
 	 
	 	 	Name:  	Timothy Cope  	 
	 	 	Title:  	President 	 
	 



INTERCREDITOR AND SUBORDINATION AGREEMENT




 









 








	 	 	 	 	 
	 	FF&E Agent:



BANK OF UTAH

 	 
	 	By:  	/s/ Nancy M. Dahl
 	 
	 	 	Name:  	Nancy M. Dahl  	 
	 	 	Title:  	Vice President 	 
	 



INTERCREDITOR AND SUBORDINATION AGREEMENT




 









 









     The Authority acknowledges the foregoing Intercreditor and Subordination Agreement. The
Authority further (i) acknowledges that references in the Lakes Transaction Documents to “Foothill
Oaks Casino” shall be deemed to refer to the business originally contemplated to be known as
Foothill Oaks Casino, as it may hereafter be operated under the name Red Hawk Casino or any other
name or names, and (ii) authorizes the filing of amendments reflecting the foregoing acknowledgment
to financing statements previously filed.



	 	 	 	 	 
	SHINGLE SPRINGS TRIBAL GAMING AUTHORITY,
 	 	 
	a wholly-owned unincorporated instrumentality of the Shingle Springs
Band of Miwok Indians, a federally recognized Indian tribe

 	 	 
	By:  	/s/ Scott Holmes
 	 	 
	 	Name:  	Scott Holmes 	 	 
	 	Title:  	Chairman 	 	 
	 	 	 
	By:  	/s/
Nicholas H. Fonseca
 	 	 
	 	Name:  	Nicholas H. Fonseca 	 	 
	 	Title:  	Tribal Chairman 	 	 
	 



INTERCREDITOR AND SUBORDINATION AGREEMENT