EXHIBIT 2.2
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment"),
dated as of December 4, 2000, is entered into by and among MAJESTIC INVESTOR,
LLC, a Delaware limited-liability company ("Purchaser"); FITZGERALDS LAS VEGAS,
INC., a Nevada corporation ("FLV"); 000 XXXX XXXXXX LIMITED LIABILITY COMPANY, a
Colorado limited-liability company ("FBH"); FITZGERALDS MISSISSIPPI, INC., a
Mississippi corporation ("FM" and collectively with FLV and FBH, "Sellers" and
each, a "Seller"); and FITZGERALDS GAMING CORPORATION, a Nevada corporation
("Parent"). Capitalized terms not defined herein have the meanings ascribed to
them in the Purchase and Sale Agreement, dated as of November 22, 2000 (the
"Agreement"), by and among the parties to this Amendment and certain Affiliates
of Parent or Sellers named on the signature pages of the Agreement.
In consideration of the mutual covenants and agreements set forth in
this Amendment, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. INCONSISTENCIES. If any inconsistencies exist between the provisions
of this Amendment and the provisions of the Agreement, then the provisions of
this Amendment shall control and supersede the inconsistent provisions of the
Agreement. Unless otherwise specifically indicated, all references to Paragraphs
and Subparagraphs are to Paragraphs and Subparagraphs of the Agreement and such
Paragraphs and Subparagraphs referred to shall include the effect of the
amendments hereunder.
2. AMENDMENTS. The Agreement is hereby amended as follows:
A. Paragraph (b) of Section 1.03 is amended and restated in its
entirety as follows:
(b) (i) There shall be withheld from the Cash Component
payable to Sellers at the Closing Three Million Five Hundred
Thousand Dollars ($3,500,000) (the "Purchaser's Holdback"), which
amount shall be deposited by Purchaser and held in the Escrow
Account. From time to time prior to the date which is nine months
from the Closing Date (the "First Holdback Expiration Date"), in
accordance with the Escrow Agreement (A) Purchaser may apply the
Purchaser's Holdback to pay, or to provide for the payment of,
any liability of Parent or Sellers to Purchaser resulting from
(I) post-Closing adjustments of the Cash Component other than the
Hotel Adjustment Amount, (II) Parent's and Sellers'
indemnification obligations under Section 11.01 or (III)
Underestimated Re-Flagging Costs under Section 1.16 and (B)
Sellers may apply the Purchaser's Holdback to pay, or to provide
for the payment of, any liability of Purchaser to Sellers for
Overestimated Re-Flagging Costs as provided in Section 1.16.
Between the 12-month and 14-month anniversaries of
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the Closing Date, in accordance with the Escrow Agreement,
Purchaser may apply the Purchaser's Holdback to pay, or to
provide for the payment of, any liability of Sellers to Purchaser
for the Hotel Adjustment Amount under Section 1.15. From time to
time between the First Holdback Expiration Date and the date
which is 12 months from the First Holdback Expiration Date (the
"Final Holdback Expiration Date"), in accordance with the Escrow
Agreement, Purchaser may apply up to One Million Dollars
($1,000,000) of the remaining balance of the Purchaser's Holdback
to pay, or to provide for the payment of, any liability of Parent
or Sellers to Purchaser resulting from Parent's and Seller's
indemnification obligations under Section 11.01 only as they
pertain to breaches of representations and warranties contained
in Sections 2.07 or 2.14 or breaches of covenants contained in
Sections 8.01, 8.02 or 8.03.
(ii) On the 14-month anniversary of the Closing Date, any
portion of the Purchaser's Holdback in excess of One Million
Dollars ($1,000,000) remaining in the Escrow Account shall be
released to Sellers in accordance with the Escrow Agreement or,
in the event of a pending dispute, as provided in the Escrow
Agreement (the "First Release"). On the Final Holdback Expiration
Date, any portion of the Purchaser's Holdback remaining in the
Escrow Account shall be released to Sellers in accordance with
the Escrow Agreement or, in the event of a pending dispute, as
provided in the Escrow Agreement.
(iii) There shall be added to each and every payment to
Purchaser or Sellers out of the Purchaser's Holdback pursuant to
this Section 1.03(b) a proportionate share of the interest earned
on the Purchaser's Holdback through the date of such payment.
B. Clause (i) of Section 1.04(a) is amended and restated in its
entirety as follows:
(i) One Hundred Forty Nine Million Dollars ($149,000,000),
subject to adjustment as provided in Sections 1.05, 1.06, 1.07,
1.15 and 1.16 (the "Cash Component"); plus
C. The following sentence is inserted at the end of clause (i) of
Section 1.06(c): "Final EBIDTA shall be subject to adjustment as provided in
paragraph (d) of this Section 1.06."
D. The following new paragraph (d) is inserted after paragraph (c)
of Section 1.06:
(d) (i) The provisions of this paragraph (d) shall apply
only if the Closing Date is prior to July 31, 2001 and as of the
Closing, the Hotel Consents have been obtained.
(ii) Final EBITDA shall be reduced by an amount equal
to (I) the amounts that were payable by Sellers to the companies
listed in Section 1.06(d)(ii) of the Disclosure Schedule (the
"Hotel
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Companies") under the original terms of the Contracts listed in
Section 1.06(d)(ii) of the Disclosure Schedule (the "Hotel
Contracts") for the 12-month period covered by the Final EBITDA
Financial Statements (the "Final EBITDA Period") minus (II) the
amounts actually paid by Sellers to the Hotel Companies under the
Hotel Contracts for the Final EBITDA Period.
E. Section 1.07 is amended and restated in its entirety as follows:
1.07. Post-Closing Audit and Adjustment.
(a) Parent will have the right to review or audit the
Final Balance Sheet, the calculation of Final EBITDA, the Hotel
Calculations under Section 1.15 and the Actual Re-Flagging Costs
under Section 1.16. Any appropriate corrections or restatements
resulting from such review or audit that affect the Cash
Component adjustments specified in Sections 1.05, 1.06, 1.15 or
1.16 will require a corresponding cash payment by Purchaser to
Sellers in the case of an increase in the Cash Component, or
reimbursement by or on behalf of Sellers to Purchaser in the case
of a reduction of the Cash Component. If Parent disagrees with
the Final Balance Sheet, the calculation of Final EBITDA, any of
the Hotel Calculations or the Actual Re-Flagging Costs, Parent
shall notify Purchaser of such disagreement in writing,
specifying in detail the particulars of such disagreement, within
15 Business Days after Parent's receipt of the Final Balance
Sheet, the calculation of Final EBITDA or the Hotel Calculations
in question or documentation supporting the Actual Re-Flagging
Costs, as the case may be (each such notification, a "Dispute
Notice"). To the extent that any portion of the Final Balance
Sheet or calculation of Final EBITDA is not in dispute, within 15
Business Days after Parent's receipt of the Final Balance Sheet
and the calculation of Final EBITDA, Sellers shall pay or cause
to be paid to Purchaser or Purchaser shall pay or cause to be
paid to Sellers, as the case may be, that portion of the
adjustment to the Cash Component which is not in dispute. Any
such payment owed by Sellers shall be made from the Purchaser's
Holdback as provided in Section 1.03(b), to the extent that the
Purchaser's Holdback is sufficient for that purpose. To the
extent that any portion of the Hotel Adjustment Amount under
Section 1.15 is not in dispute, such portion not in dispute shall
be paid to Purchaser out of the Purchaser's Holdback, as provided
in Section 1.03(b), after 15 Business Days have elapsed from the
date of Parent's receipt of the calculation of Post-Closing Hotel
Revenues. To the extent there are any Underestimated Re-Flagging
Costs which are not in dispute, they shall be reimbursed to
Purchaser out of the Purchaser's Holdback, as provided in Section
1.03(b), after 15 Business Days have elapsed from the date of
Parent's receipt of supporting documentation for the Actual
Re-Flagging Costs. To the extent there are any Overestimated
Re-Flagging Costs that Purchaser has not paid to Sellers within
the 10-day
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period specified in Section 1.16, at Sellers' option they shall
be paid by Purchaser to Sellers out of the Purchaser's Holdback,
as provided in Sections 1.03(b) and 1.16; provided, however, that
if Sellers do not obtain payment of the Overestimated Re-Flagging
Costs out of the Purchaser's Holdback, Purchaser shall remain
liable to Sellers for such payment.
(b) Purchaser and Sellers shall use commercially
reasonable efforts for a period of 30 days after Parent's
delivery of a Dispute Notice (or such longer period as Purchaser
and Sellers mutually agree upon) to resolve any disagreements
raised by Parent with respect to the Final Balance Sheet, the
calculation of Final EBITDA, the Hotel Calculations or the Actual
Re-Flagging Costs, as the case may be. If, at the end of such
period, Purchaser and Sellers are unable to resolve such
disagreements, Deloitte & Touche and Price Waterhouse Coopers,
independent auditors of Sellers and Purchaser, respectively,
shall jointly select a third independent auditor from a
recognized national standing "Big-5" accounting firm to resolve
any remaining disagreements. Fees and expenses of such third
independent auditor shall be borne equally by Purchaser on one
side and Sellers on the other side. The determination by such
third independent auditor shall be final, binding and conclusive
on Purchaser, Parent and Sellers. Purchaser and Sellers shall use
commercially reasonable efforts to cause such third independent
auditor to make its determination within 30 days of accepting its
selection. If Parent or any Sellers determine that a delay in
this dispute resolution mechanism threatens to delay the closing
of their cases in the Bankruptcy Proceedings, then Parent or any
Sellers may seek means from the Bankruptcy Court to enforce such
independent auditor's determination. The parties hereto, Sellers'
and Purchaser's respective independent auditors, and such third
selected independent auditor shall agree to be subject to the
jurisdiction of the Bankruptcy Court for this purpose. Within ten
days after the date of determination by such third independent
auditor, Purchaser shall pay Sellers, or Sellers shall pay or
cause to be paid to Purchaser, as the case may be, the amount of
the adjustment to the Cash Component or the amount of the
Overestimated Re-Flagging Costs or Underestimated Re-Flagging
Costs, as the case may be, that is determined to be due and
payable. Any such payments owed by Sellers shall be made from the
Purchaser's Holdback as provided in Section 1.03(b), to the
extent that the Purchaser's Holdback is sufficient for that
purpose. Any such payment of Overestimated Re-Flagging Costs owed
by Purchaser shall be made as provided in Sections 1.03(b) and
1.16 and paragraph (a) of this Section 1.07.
F. In the first sentence of Section 1.08(b), the phrase "and
1.06(b)," is changed to ",1.06(b) and 1.16(b)," and in the third sentence of
Section 1.08(c), the term "First Holdback Expiration Date" is changed to
"14-month anniversary of the Closing Date."
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G. The following new Sections 1.15 and 1.16 are inserted after
Section 1.14:
1.15 Hotel Cash Component Adjustments:
(a) A post-Closing reduction of the Cash Component and
delivery by Purchaser to Parent of the Hotel Calculations, as
provided in this Section 1.15, shall be made only if the Hotel
Consents have not been obtained as of the Closing.
(b) The Cash Component shall be reduced by an amount
(the "Hotel Adjustment Amount") equal to the product of (i) the
Las Vegas Business' hotel room revenues for the Final EBITDA
Period (the "Pre-Closing Hotel Revenues") minus the Las Vegas
Business' hotel room revenues for the 12-month period commencing
on the Closing Date (the "Post-Closing Hotel Revenues") minus
Sellers' payments under the Hotel Contracts for the Final EBITDA
Period (the "Hotel Contracts Payments"), multiplied by (ii) four.
The Hotel Adjustment Amount shall be paid to Purchaser solely out
of the Purchaser's Holdback, as provided in Section 1.03(b). No
Cash Component adjustment shall be made under this Section 1.15
if the amount computed under clause (i) of this paragraph (b) is
a negative number or if the Hotel Consents have been obtained as
of the Closing.
(c) Purchaser shall deliver to Parent written
calculations of the Pre-Closing Hotel Revenues, the Post-Closing
Hotel Revenues and the Hotel Contracts Payments (collectively,
the "Hotel Calculations") in sufficient detail to facilitate
Parent's review or audit of such calculations pursuant to Section
1.07. Purchaser shall deliver the Pre-Closing Hotel Revenues
calculation to Parent together with the Final Balance Sheet and
the Final EBITDA Financial Statements. Purchaser shall deliver
the Post-Closing Hotel Revenues calculation to Parent within 15
Business Days after the end of the 12-month period that commenced
on the Closing Date. The Hotel Calculations shall be made in a
manner consistent with the calculation of revenues in the Interim
EBITDA Financial Statements and the Final EBITDA Financial
Statements.
1.16 Hotel Re-Flagging After the Closing.
(a) The provisions of this Section 1.16 shall only apply
if, as of the Closing, the Hotel Consents have not been obtained
and the Re-Flagging Changes have not been implemented pursuant to
Section 15.20.
(b) Sellers shall present to Purchaser at or prior to
the Closing a reasonably detailed written estimate of the
anticipated costs to be incurred by Purchaser to implement the
Re-Flagging Changes after the Closing (the "Estimated Re-Flagging
Costs"). At the Closing, the Cash Component will be decreased by
the Estimated Re-Flagging Costs.
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(c) As promptly as reasonably practicable after
Purchaser has implemented the Re-Flagging Changes, Purchaser
shall deliver to Parent supporting documentation for the costs
actually incurred by Purchaser to implement the Re-Flagging
Changes (the "Actual Re-Flagging Costs") in reasonable detail to
facilitate a review or audit by Parent of the Actual Re-Flagging
Costs pursuant to Section 1.07. The amount, if any, by which the
Actual Re-Flagging Costs exceed the Estimated Re-Flagging Costs
(the "Underestimated Re-Flagging Costs") shall be paid to
Purchaser out of the Purchaser's Holdback, as provided in Section
1.03(b). The amount, if any, by which the Estimated Re-Flagging
Costs exceed the Actual Re-Flagging Costs (the "Overestimated
Re-Flagging Costs") shall be paid by Purchaser to Sellers within
ten days after Purchaser delivers to Sellers the supporting
documentation specified in this paragraph (b). If Purchaser does
not make such payment within this ten-day period, Sellers shall
have the right to obtain such payment of the Overestimated
Re-Flagging Costs out of the Purchaser's Holdback. If Sellers do
not obtain such payment from the Purchaser's Holdback, Purchaser
shall remain liable to Sellers for payment of the Overestimated
Re-Flagging Costs.
(d) Purchaser shall complete the removal of the Las
Vegas Business' existing hotel signs, logos, uniforms and
amenities that are necessary to implement the Re-Flagging Changes
within 60 days after the Closing Date. Purchaser shall submit to
the appropriate vendors or suppliers all purchase orders for new
hotel signs, logos, uniforms and amenities that are necessary to
complete the Re-Flagging Changes within 90 days after the Closing
and shall deliver to Parent copies of such purchase orders within
ten days after they have been submitted to such vendors or
suppliers. The Re-Flagging Changes shall be made in a
commercially reasonable manner, consistent with the Las Vegas
Business' normal and customary practices and expenditures prior
to the Closing.
H. In the second sentence of Section 2.05, "or Section 15.20" is
inserted immediately after "Section 15.08."
I. At the end of the first sentence of Section 4.04 and at the end
of clause (ii) of Section 4.06, "or Section 15.20" is inserted immediately after
"Section 15.08."
J. Section 4.09(a) is amended and restated in its entirety as
follows:
(a) (i) Exhibit F contains preliminary title reports for
the Real Property and the Real Property Leases (the "Title
Reports").
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(ii) Purchaser shall have 30 days (the "Exception Review
Period") from the date Purchaser receives a copy of the ALTA
surveys for the Real Property and the Real Property Leases and
all documents of record listed as title exceptions in the Title
Reports (the "Title Exceptions") within which to review and
approve the Title Exceptions. Purchaser shall notify Sellers in
writing within the Exception Review Period if Purchaser
disapproves of any of the Title Exceptions (the "Title Exception
Objections"). If Purchaser fails to deliver the Title Exception
Objections within the Exception Review Period, the Title
Exceptions shall be deemed Permitted Exceptions. If Purchaser
delivers the Title Exception Objections to Sellers within the
Exception Review Period, Sellers shall have 15 days (the
"Objection Review Period") from the date of the receipt of the
Title Exception Objections to notify Purchaser in writing of
Sellers' approval or disapproval of the Title Exception
Objections. If Sellers fail to notify Purchaser of their approval
or disapproval within the Objection Review Period, Sellers shall
be deemed to have disapproved all of the Title Exception
Objections. If Sellers do not accept all of the Title Exception
Objections, Purchaser shall have five days (the "Termination
Notification Period") from the earlier of (x) the expiration of
the Objection Review Period or (y) the date that Purchaser
receives notice from Sellers of their disapproval of some or all
of the Title Exception Objections, to terminate the Purchase
Agreement pursuant to Section 12.01(p). If Purchaser does not
terminate the Purchase Agreement pursuant to Section 12.01(p)
within the Termination Notification Period, Purchaser shall be
deemed to have withdrawn the Title Exception Objections not
approved by Sellers.
(iii) Following expiration of the Exception Review
Period, Permitted Exceptions shall also include those other title
exceptions which (A) are disclosed or become apparent to
Purchaser after the date hereof, (B) are not already Permitted
Exceptions, (C) cannot be removed by the payment of a sum of
money, (D) are not caused by the intentional act of a Seller or
any Affiliate of a Seller after the date hereof, and which do not
materially adversely affect the value of the Real Property or
Improvements, or the continued use thereof as currently
conducted, or as to which Purchaser has not timely objected.
K. The following new Sections 4.19, 4.20 and 4.21 are inserted
after Section 4.18:
4.19 Sellers' Obligations Regarding the Modular Space
Consents. If prior to the Closing it becomes readily apparent to
Sellers that any of the consents (or in lieu thereof waivers or
appropriate
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Orders of the Bankruptcy Court) listed in Section 6.05 of the
Disclosure Schedule that pertain to Sellers' Contracts with GE
Capital Modular Space (the "Modular Space Consents") will, as of
the Closing, (i) not have been obtained, (ii) be subject to the
satisfaction of any condition that has not been satisfied or
waived or (iii) not be in full force and effect, Sellers shall so
notify Purchaser in writing and shall negotiate with Purchaser in
a spirit of good faith and cooperation with a view towards
reaching an amicable and fair agreement on a financial remedy or
accommodation to Purchaser or a substitute for the Modular Space
Consents that is reasonably satisfactory to Purchaser. Any such
agreement between Sellers and Purchaser with respect to the
Modular Space Consents shall constitute satisfaction of the
conditions specified in Section 6.05 as they pertain to the
Modular Space Consents.
4.20. Black Hawk Business Condition of Improvements.
Prior to the Closing, Sellers shall remedy in all material
respects the conditions described in Section 2.08(i) of the
Disclosure Schedule (including the descriptions in correspondence
from consultant Xxxxx X. Xxxxxxx contained therein), in a manner
reasonably satisfactory to Purchaser.
4.21. Intellectual Property Conveyance Documents. Parent
and Sellers shall execute any documents necessary, make any
filings necessary, and otherwise cooperate in good faith with
Purchaser, to establish an effective chain of title with respect
to the trademark Intellectual Property to be conveyed to
Purchaser pursuant to this Agreement.
L. The following new Section 5.08 is inserted after Section 5.07:
5.08 Purchaser's Obligations Regarding the Modular Space
Consents. If prior to the Closing Purchaser receives written
notification from Sellers that it has become readily apparent
that the Modular Space Consents will, as of the Closing, (i) not
have been obtained, (ii) be subject to the satisfaction of any
condition that has not been satisfied or waived or (iii) not be
in full force and effect, Purchaser shall negotiate with Sellers
in a spirit of good faith and cooperation with a view towards
reaching an amicable and fair agreement on a financial remedy or
accommodation to Purchaser or a reasonably satisfactory
substitute for the Modular Space Consents that is reasonably
satisfactory to Purchaser. Any such agreement between Purchaser
and Sellers with respect to the Modular Space Consents shall
constitute satisfaction of the conditions specified in Section
6.05 as they pertain to the Modular Space Consents.
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M. The following is inserted at the end of Section 6.05:
If it becomes readily apparent to Sellers that any conditions
specified in sub-clauses (A), (B) and (C) of this Section will
not be satisfied (and waivers or Bankruptcy Court Orders will not
be obtained) as of the Closing with respect to any consents that
(i) are listed in Section 6.05 of the Disclosure Schedule and
pertain to Sellers' Contracts with International Game Technology
("IGT") or (ii) pertain to FM's Contract with Hotel Information
Systems ("HIS"), Sellers shall have the right to provide
Purchaser with reasonably comparable slot machine player tracking
systems in substitution for any such IGT Contracts or a
reasonably comparable hotel information system for the Tunica
Business in substitution for the HIS Contract, as the case may
be; provided, however, that any such substituted system shall be
subject to Purchaser's reasonable approval. The substitution of
any player tracking or hotel information system pursuant to the
preceding sentence shall constitute satisfaction of the
conditions specified in this Section as they pertain to the
corresponding IGT or HIS Contract.
N. The following new Section 6.12 is inserted after Section 6.11:
6.12. Certain Domain Name Registrations. Prior to the
Closing, Sellers shall make commercially reasonable efforts to
(i) cause the respective registrants to transfer the domain name
registrations listed in Section 2.10(a) of the Disclosure
Schedule ("Domain Name Registrations") to Sellers and (ii) avoid
the loss of any Intellectual Property rights, including, but not
limited to, those registrations listed in Section 1.01(a)(v) of
the Disclosure Schedule arising from the registration and use of
the Domain Name Registrations. Such efforts shall include any one
or more of the following: (A) purchasing the Domain Name
Registrations, (B) arbitration or (C) litigation against any
owners of the Domain Name Registrations who refuse to transfer
the Domain Name Registrations and attempt to benefit commercially
from the Domain Name Registrations. Sellers shall consult in good
faith with Purchaser with respect to their efforts to satisfy the
conditions specified in this Section. Any and all Domain Name
Registrations acquired by Parent or any Sellers at any time shall
be transferred and assigned to Purchaser together with the other
Intellectual Property listed in Section 1.01(a)(v) of the
Disclosure Schedule at the Closing pursuant to Section 1.01(a)(v)
or by separate agreement if the Domain Name Registrations are
acquired by Parent or Sellers after the Closing.
O. The second sentence of Article X is amended and restated as
follows:
The representations, warranties, covenants and agreements of
Sellers, Parent and Purchaser contained in this Agreement will
survive the Closing until, and terminate on, the First Holdback
Expiration Date with respect to all matters except (i) the
covenants and agreements herein regarding the Hotel Adjustment
Amount, which will survive the
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Closing until, and terminate on, the date of the First Release
and (ii) representations and warranties contained in Sections
2.07 or 2.14 and covenants and agreements contained in Article
VIII, which will survive the Closing until, and terminate on, the
Final Holdback Expiration Date; provided that any representation,
warranty, covenant or agreement that would otherwise terminate in
accordance with the above provisions of this Article X will
continue to survive if a Claim Notice or Indemnity Notice (as
applicable) shall have been timely given under Article XI on or
prior to such termination date, until the related claim for
indemnification has been satisfied or otherwise resolved as
provided in Article XI.
P. Section 12.01(p) is amended and restated in its entirety as
follows:
(p) (i) by Sellers and Parent on one side, or by
Purchaser on the other side, if Sellers, Parent and Purchaser
have not approved the form and content of all Sections of the
Disclosure Schedule, all Exhibits to this Agreement and the
proposed forms of the Bid Protection Order, Interim Cash
Collateral Order and Cash Collateral Order by December 4, 2000 or
(ii) by Purchaser within the Termination Notification Period, if
permitted under Section 4.09(a), in either of which case
Purchaser shall be entitled to the Xxxxxxx Money Deposit and all
interest earned thereon, but not the Expense Reimbursement or the
Breakup Fee;
Q. The following definitions in Section 13.01 are amended and
restated to read as follows:
"Cash Collateral Order" means a Final Order approving
the Cash Collateral Stipulation, and if the super-priority
administrative claim status for (i) the Fitzgeralds Undertaking
Expense Reimbursement, (ii) the Expense Reimbursement, and (iii)
the Break-up Fee in respect of the Lien in favor of the Indenture
Trustee for the benefit of the holders of the Senior Secured
Notes is obtained by a motion brought under Section 364(c)(1) of
the Bankruptcy Code (as opposed to being provided in the Cash
Collateral Stipulation), then the Cash Collateral Order shall
also include the Final Order granting such motion.
"Cash Collateral Stipulation" means the Agreement
Regarding Use of Cash Collateral among the Consenting
Noteholders, the Indenture Trustee, Parent and Sellers pursuant
to Section 363(c)(2) and other applicable provisions of the
Bankruptcy Code authorizing, among other things, the use by
Parent and Sellers of Cash Collateral and further (x) consenting
to the use of Cash Collateral to pay, and (y) granting to
Purchaser a super-priority administrative claim status for (i)
the Fitzgeralds Undertaking Expense Reimbursement, (ii) the
Expense Reimbursement, and (iii) the Break-up Fee in respect of
the Lien in favor of the Indenture Trustee for the benefit of the
holders of the Senior Secured Notes; provided, however, that at
the option of Sellers, the super-priority administrative claim
status for (i) the Fitzgeralds Undertaking
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Expense Reimbursement, (ii) the Expense Reimbursement, and (iii)
the Break-up Fee in respect of the Lien in favor of the Indenture
Trustee for the benefit of the holders of the Senior Secured
Notes may be obtained by a separate motion brought under Section
364(c)(1) of the Bankruptcy Code (as opposed to being granted by
means of the Cash Collateral Stipulation).
"Interim Cash Collateral Order" means an interim or
preliminary Order of the Bankruptcy Court approving the Cash
Collateral Stipulation, and if the super-priority administrative
claim status for the Fitzgeralds Undertaking Expense
Reimbursement in respect of the Lien in favor of the Indenture
Trustee for the benefit of the holders of the Senior Secured
Notes is obtained by a separate motion brought under Section
364(c)(1) of the Bankruptcy Code (as opposed to being provided in
the Cash Collateral Stipulation), then for the purpose of this
Agreement the term Interim Cash Collateral Order shall also
include the interim Order of the Bankruptcy Court granting such
motion; provided, however, in either event, the super-priority
administrative claim status for such Expense Reimbursement shall
be considered a post-petition loan entitled to the protection of
Section 364(e) of the Bankruptcy Code.
R. In the definition of Competing Business in Section 13.01,
"Section 4.04(e)" is changed to "Section 4.08(f)."
S. In the definition of Downtown Las Vegas in Section 13.01,
"Section 4.08(e)" is changed to "Section 4.08(f)."
T. At the end of the definition of EBITDA in Section 13.01, the
following is inserted after "course":
; plus (xiii) any expenses incurred by Parent or Sellers
with respect to the changes specified in Section 15.20, the
Estimated Re-Flagging Costs or the Actual Re-Flagging Costs,
which expenses were included in the calculation of Consolidated
Net Income.
U. The following definitions are inserted in Section 13.01, in
alphabetical order, among the defined terms that presently appear therein:
"Actual Re-Flagging Costs" has the meaning ascribed to
it in Section 1.16.
"Domain Name Registrations" has the meaning ascribed to
it in Section 6.12.
"Estimated Re-Flagging Costs" has the meaning ascribed
to it in Section 1.16.
"Exception Review Period" has the meaning ascribed to it
in Section 4.09(a).
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"Final EBITDA Period" has the meaning ascribed to it in
Section 1.06(d)(ii).
"Fitzgeralds Undertaking Expense Reimbursement" means
the Expense Reimbursement, as such term is defined in the
Fitzgeralds Undertaking.
"HIS" has the meaning ascribed to it in Section 6.05.
"Hotel Adjustment Amount" has the meaning ascribed to it
in Section 1.15(b).
"Hotel Calculations" has the meaning ascribed to it in
Section 1.15(c).
"Hotel Companies" has the meaning ascribed to it in
Section 1.06(d)(ii).
"Hotel Consents" means the consents (or in lieu thereof
waivers or Bankruptcy Court Orders) specified in Section 6.05 as
they pertain to the Hotel Contracts, which consents satisfy the
conditions specified in clauses (A), (B) and (C) of Section 6.05.
"Hotel Contracts" has the meaning ascribed to it in
Section 1.06(d)(ii).
"Hotel Contracts Payments" has the meaning ascribed to
it in Section 1.15(b).
"IGT" has the meaning ascribed to it in Section 6.05.
"Modular Space Consents" has the meaning ascribed to it
in Section 4.19.
"Objection Review Period" has the meaning ascribed to it
in Section 4.09(a).
"Overestimated Re-Flagging Costs" has the meaning
ascribed to it in Section 1.16.
"Post-Closing Hotel Revenues" has the meaning ascribed
to it in Section 1.15(b).
"Pre-Closing Hotel Revenues" has the meaning ascribed to
it in Section 1.15(b).
"Re-Flagging Changes" has the meaning ascribed to it in
Section 15.20.
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"Termination Notification Period" has the meaning
ascribed to it in Section 4.09(a).
"Title Exception Objections" has the meaning ascribed to
it in Section 4.09(a).
"Title Exceptions" has the meaning ascribed to it in
Section 4.09(a).
"Underestimated Re-Flagging Costs" has the meaning
ascribed to it in Section 1.16.
V. The following new Section 15.20 is inserted after Section 15.19:
15.20. Hotel Re-Flagging Prior to Closing. If prior to
the Closing the Hotel Consents are not obtained and FLV
implements changes to the Las Vegas Business' hotel signs, logos,
uniforms and amenities due to the failure to obtain the Hotel
Consents (the "Re-Flagging Changes"), the Re-Flagging Changes
shall be implemented in a commercially reasonable manner,
consistent with the Las Vegas Business' normal and customary past
practices and expenditures, and reasonably satisfactory to
Purchaser. If, as of the Closing, the Hotel Consents have not
been obtained and the Re-Flagging Changes have not been
implemented, then the provisions of Section 1.16 shall apply.
3. INVALID PROVISIONS. If any provision of this Amendment is held to be
illegal, invalid or unenforceable under any present or future Law, and if the
rights or obligations of any party hereto under this Amendment will not be
materially and adversely affected thereby, (i) such provision will be fully
severable, (ii) this Amendment will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof
and (iii) the remaining provisions of this Amendment will remain in full force
and effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom.
4. FULL FORCE AND EFFECT. Except as expressly amended by this
Amendment, the Agreement shall continue in full force and effect in accordance
with the provisions thereof on the date hereof and the parties hereto ratify and
agree to be bound by all terms and provisions of the Agreement as amended
hereby.
5. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which will be deemed an original, and all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by the duly authorized officer of each party as of the date first
above written.
PURCHASER: MAJESTIC INVESTOR, LLC
a Delaware limited-liability company
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------------
Title:
-------------------------------------
FLV: FITZGERALDS LAS VEGAS, INC.,
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------------
Title:
-------------------------------------
FBH: 000 XXXX XXXXXX LIMITED LIABILITY COMPANY,
a Colorado limited-liability company doing
business as "Fitzgeralds Casino Black Hawk"
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------------
Title:
-------------------------------------
FM: FITZGERALDS MISSISSIPPI, INC.,
a Mississippi corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------------
Title:
-------------------------------------
PARENT: FITZGERALDS GAMING CORPORATION,
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------------
Title:
-------------------------------------
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