LOAN AGREEMENT
Exhibit
10.1
AMENDED
AND RESTATED
This
AMENDED AND RESTATED LOAN AGREEMENT (the “Agreement”) is made as of the 20th day of
June, 2007, by and between Casino Xxxxx Xxxx Holding, LLC, a Nevada limited
liability company (“Debtor”), and Plainfield Gaming Inc. a Delaware corporation,
(“Lender”).
RECITALS
WHEREAS,
Debtor and Lender entered into that certain Loan Agreement and Exchangeable
Promissory Note dated May 3, 2007 (“May 3 Documents”) whereby Lender loaned to
Debtor the sum of $1,250,000.00 (“Original Funding”), copies of which are
attached hereto and made a part hereof as Exhibit A; and
WHEREAS,
Debtor and Lender have agreed that Lender will provide additional funding in the
amount of $312,500 (“Additional Funding”) to Debtor on the same terms as the May
3 Documents in order to allow for the Acquisition as defined hereafter and to
provide Lender with the ongoing opportunity to acquire an equity interest in
Debtor upon the terms set forth herein; and
WHEREAS,
Debtor and Lender intend to cancel the May 3 Documents and replace them with
this Agreement and a new Amended and Restated Exchangeable Note dated June 20,
2007, which will be in the total amount of the Original Funding and the
Additional Funding, a copy of which is attached hereto and made a part hereof as
Exhibit B; and
WHEREAS,
Debtor intends to acquire all of the issued and outstanding membership interests
of CIRI Lakeside Gaming Investors, L.L.C., a Nevada limited liability company
(“CLIG”), (the “Acquisition”);
WHEREAS,
Lender desires to purchase, upon the consummation of the Acquisition, and
subject to the terms and conditions set forth herein, an equity interest in
Debtor equal to 33.334% of all such interests as are outstanding immediately
thereafter (the “Lender Equity Interest”), in exchange for a cash payment in the
amount of One Million Five Hundred and Sixty Two Thousand Five Hundred United
States Dollars (U.S. $1,562,500.00);
WHEREAS,
Lender would be debarred from acquiring any equity interest in, voting rights
with respect to or managerial control over, Debtor until such time as Lender
receives certain required licenses and approvals from gaming regulatory agencies
in the state of Nevada; and
WHEREAS,
Debtor is willing to issue and sell to Lender, and Lender is desirous of
purchasing from Debtor, a debt instrument exchangeable for such number of
membership interests of Debtor equal to 33.334% of the equity interests (the
“Membership
Interests”), but only when all of the aforementioned required licenses and
approvals have been received by Lender.
NOW,
THEREFORE, in consideration of the recitals and the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
AGREEMENT
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1.
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ISSUANCE
AND SALE OF AMENDED AND RESTATED EXCHANGEABLE NOTE;
CLOSING.
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1.1 Issuance and Sale of Amended and
Restated Exchangeable Note. Subject to the terms and
conditions, herein set forth, Debtor agrees to issue and sell to Lender, and
Lender agrees to purchase from Debtor, an Amended and Restated Exchangeable
Promissory Note issued by Debtor in the principal amount of the Original Funding
plus the Additional Funding equal to One Million Five Hundred and Sixty Two
Thousand Five Hundred United States Dollars (U.S. $1,562,500.00) and
exchangeable under certain conditions for the Lender Equity Interest, in the
form attached hereto as Exhibit B (the “Amended and Restated Exchangeable
Note”).
1.2 Closing. The
closing of the Additional Funding of the borrowing and lending transaction
contemplated by the forepart of this Article 1 (the “Closing”) is to be held at
the offices of Debtor located at 0000 Xxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx
00000 on or before June 4, 2007 (“Closing Date”). At the Closing, (i) an amount
equal to the Additional Funding included in the Amended and Restated
Exchangeable Note shall be delivered by Lender by wire transfer of immediately
available funds to an account or accounts in the name of Debtor designated by
Debtor in writing to Lender and (ii) the original of the Amended and Restated
Exchangeable Note as executed by Debtor shall be delivered to
Lender.
1A. LICENSING
OF LENDER
1A.1 Regulatory
Condition to Exchange of Amended and Restated Exchangeable
Note. Pursuant to its terms, the Amended and Restated Exchangeable Note
may not be exchanged for the Lender Equity Interest until Lender receives all
required regulatory licenses, approvals and registrations, including, without
limitation, gaming industry licenses, approvals and registrations (collectively,
the “Licenses”) from the state of Nevada (the “Gaming Regulators”) necessary to
allow Lender to acquire the Lender Equity Interest under all applicable laws,
rules and regulations.
1A.2 Responsibility
for Submission and Prosecution of Applications Payment of Third-Party
Expenses. Lender shall be solely responsible for preparing and submitting
and the applications necessary for all of the Licenses, and shall commence this
process as soon as practicable after the Closing Date. Lender shall be solely
responsible for and pay directly to the applicable third parties (including,
without limitation, licensing counsel selected by Lender pursuant to the proviso
set forth in the succeeding sentence) all third party expenses and costs
periodically incurred by Lender in connection with applying for and obtaining
the Licenses. Debtor shall exert its reasonable best efforts, and shall cause to
assist Lender in Lender’s prosecution of the applications for the Licenses, and
shall make available to Lender, at Lender’s expense, the services of Debtor’ and
Debtor’s licensing counsel to similarly assist Lender, provided that, in the
event that such counsel shall have a conflict of interest in so providing
services to Lender, Lender shall select its own licensing counsel, who must be
reasonably acceptable to Debtor.
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1A.3 Failure to Obtain
Licenses. All Licenses must be received on or before the License Default Date (as defined
infra). If all of the Licenses are not received by the License Default Date,
then the exchange feature of the Amended and Restated Exchangeable Note shall
thereupon expire, and Debtor shall extinguish the loan evidenced by the Amended
and Restated Exchangeable Note by paying to Lender on the first business
day after the License Default Date, the lesser of the amount of the Lender’s
prorate portion of the book equity of the Debtor based upon what would have been
the Lender’s Equity Interest in the Debtor had the Lender exchanged the
Exchangeable Note as of the date the payment is due or the principal amount of
One Million Five Hundred and Sixty Two Thousand Five Hundred United States
Dollars (U.S. $1,562,500.00), For purposes of this Agreement, “License Default
Date” shall mean the later of (i) the second anniversary of the Closing Date,
and (ii) such later date, if any (the “Extended Date”), as is reasonably agreed
to by the parties hereto prior to the second anniversary of the Closing Date,
subject to required good faith discussions among such parties. Notwithstanding
the foregoing, in the event that Debtor is notified prior to the License Default
Date by the Gaming Regulators that said application of Lender will not be
granted, (i) Debtor shall immediately provide the same notice to Lender, and
(ii) unless Lender is able to reverse the subject determination of the Gaming
Regulators prior thereto, the License Default Date shall instead be the earlier
of (x) the second anniversary of the Closing Date, or the Extended Date, as
applicable, and (y) such earlier date, if any, as is mandated by the Gaming
Regulators for the repayment by Debtor of the Amended and Restated Exchangeable
Note.
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2.
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LENDER’S
CONDITIONS OF CLOSING.
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Lender’s
obligation to consummate the transactions contemplated hereby is subject to the
satisfaction or waiver, on or before the Closing Date, of the conditions
precedent contained in this Section 2.
2.1 Representations
and Warranties. The representations and warranties of Debtor contained in
Section 4 hereof shall be true and correct on and as of the Closing
Date.
2.2 Purchase and Exchange
of Amended and Restated Exchangeable Note Permitted by Applicable Law; Required
Regulatory Approvals Obtained. The purchase of and
payment for the Amended and Restated Exchangeable Note, and the exchange of
amounts owed thereunder for the Lender Equity Interest, shall not, as of the
Closing Date, be prohibited by any applicable law or governmental rule or
regulation (other than, with respect to the exchange, compliance with applicable
gaming licensing requirements by Lender), and all gaming and other regulatory
approvals thereof required to be obtained on or prior to the Closing Date shall
have been obtained.
2.3 Compliance with
Securities Laws. The issuance, sale and delivery of the Amended and
Restated Exchangeable Note, and the exchange of the amounts owed under the
Amended and Restated Exchangeable Note for the Lender Equity Interest, shall, as
of the Closing Date, be in compliance with all applicable requirements of
federal and state securities laws.
2.4 No Adverse Action
or Decision. There shall be no legal action, suit, investigation or
proceeding pending, or to the actual knowledge of Debtor, threatened, against or
affecting Debtor, or any of its properties or rights before any court,
arbitrator or administrative or governmental body, which (a) seeks to restrain,
enjoin or prevent the consummation of the transactions contemplated by this
Agreement, or (h) questions the validity or legality of any such transaction or
seeks to recover damages or to obtain other relief in connection with any such
transaction.
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3.
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DEBTOR’S
CONDITIONS OF CLOSING.
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The
obligation of Debtor to consummate the transactions contemplated hereby is
subject to the satisfaction or waiver, on or before the Closing Date, of the
conditions precedent contained in this Section 3.
3.1 Representations
and Warranties. The representations and warranties of Lender
contained in Section 5 hereof shall be true and correct on and as of the Closing
Date.
3.2 Issuance, Sale
and Exchange of Amended and Restated Exchangeable Note
Permitted by Applicable Law; Required Regulatory Approvals
Obtained. The issuance and sale of and payment for the
Amended and Restated Exchangeable Note, and the exchange of amounts owed
thereunder for the Lender Equity Interest, shall not, as of the Closing Date, be
prohibited by any applicable law or governmental rule or regulation (other than,
with respect to the exchange, compliance with applicable gaming licensing
requirements by Lender), and all gaming and other regulatory approvals thereof
required to be obtained on or prior to the Closing Date shall have been
obtained.
3.3 Compliance with
Securities Laws. The issuance, sale and delivery of the
Amended and Restated Exchangeable Note, and the exchange of the amounts owed
under the Amended and Restated Exchangeable Note for the Lender Equity Interest,
shall, as of the Closing Date, be in compliance with all applicable requirements
of federal and state securities laws.
3.4 No Adverse Action
or Decision. There shall be no legal action, suit,
investigation or proceeding pending, or to Lender’s actual knowledge,
threatened, against or affecting Lender before any court, arbitrator or
administrative or governmental body that (a) seeks to restrain, enjoin or
prevent the consummation of the transactions contemplated by this Agreement, or
(b) questions the validity or legality of any such transaction or seeks to
recover damages or to obtain other relief in connection with any such
transaction.
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4.
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REPRESENTATIONS
AND WARRANTIES OF DEBTOR.
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Debtor
hereby represents and warrants to Lender, as of the date of this Agreement and
as of the Closing Date, that:
4.1 Organization and
Standing, Authorization; Charter Documents. Debtor is a
limited liability company duly organized and existing in good standing under the
laws of the State of Nevada and has the requisite power to own its own
properties and to carry on its business as now being conducted. Debtor has full
power and authority to enter into and perform this Agreement, and this
Agreement, when executed and delivered by the parties hereto, will constitute
the valid and legally binding obligation of Debtor, enforceable against Debtor
in accordance with its terms, except as such enforceability may be limited (i)
by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally the enforcement of, creditors’
rights and remedies or (ii) by other equitable principles of general
application.
4.2 Compliance with
Laws. Debtor is not in violation of any applicable statute,
rule, regulation, order or restriction of any domestic or foreign government or
any instrumentality or agency thereof in respect of the conduct of its business
or the ownership of its properties, which violation would have a Material
Adverse Effect on Debtor. For purposes of this Agreement, “Material
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Adverse
Effect” means any adverse effect on the business, operations, properties,
prospects or financial condition of any entity with respect to which such term
is used and which is material to such entity and other entities controlling or
controlled by such entity, taken as a whole.
4.3 Compliance with
Other Instruments. Debtor is not in violation of any provision
of its Articles of Organization or of any material provision of any other
contract material to the business of Debtor.
4.4 Litigation. There
is no action, suit, proceeding or investigation pending against Debtor that
might result, either individually or in the aggregate, in a Material Adverse
Effect on Debtor.
4.5 No Adverse Action
or Decision. There is no action, suit, investigation or
proceeding pending or threatened against or affecting Debtor or any of its
properties or rights, or any of its affiliates, officers or directors, before
any court, arbitrator or administrative or governmental body, which (a) seeks to
restrain, enjoin or prevent the consummation of the transactions contemplated by
this Agreement, or (b) questions the validity or legality of any such
transaction or seeks to recover damages or to obtain other relief in connection
with any such transaction.
4.6 Capitalization. As
of the closing of the Acquisition, (i) Debtor shall own 100% of the issued and
outstanding membership interests of CLGI, free and clear of any pledge,
hypothecation, assignment, lien, charge, claim, security interest, option,
priority, restriction or any preferential arrangement, other than as adverted to
in this Agreement or the Amended and Restated Exchangeable Note. There shall be
outstanding no preemptive rights or options, warrants or any other rights to
acquire from the issuer thereof or any other person any membership interests in
Debtor or any other equity interests in Debtor, other than (x) the Amended and
Restated Exchangeable Promissory Note and Amended and Restated Loan Agreement
between Debtor and Xxxxxxx Xxxxxx, Xx. (“Xxxxxx”) and the Amended and Restated
Exchangeable Promissory Note and Amended and Restated Loan Agreement between
Debtor and Xxxxxx Xxxxxx (“Rittvo”) (collectively, the “Szapor/Rittvo Notes”)
pursuant to which Szapor and Rittvo would each have the right to acquire up to a
maximum of that number of issued and outstanding membership interests of the
Debtor equal, upon transmutation of the Szapor/Rittvo Notes, to 16.665% to each
of Szapor and Rittvo of the total number of all of the issued and outstanding
membership interests of Debtor on a fully-diluted basis, and (y) as otherwise
adverted to in this Agreement or the Amended and Restated Exchangeable Note. If
the Amended and Restated Exchangeable Note were fully exchanged in accordance
with its terms into the Lender Equity Interest, such equity interest would
represent 33.334% of the fully-diluted equity interests of Debtor, and there are
no agreements or understandings, pursuant to which Debtor would issue any such
equity interests, or securities or instruments convertible into or exchangeable
for such equity interest, that would cause the Amended and Restated Exchangeable
Note to be exchangeable into less than 33.334% of the equity interests of Debtor
on a fully-diluted basis.
4.7 No
Conflicts. The execution, delivery and performance of this
Agreement by Debtor and the consummation by Debtor of the transactions
contemplated hereby do not and will not (i) result in a violation of Debtor’s
organizational documents or (ii) conflict with, or constitute a default (or an
event which, with notice or lapse of time or both, would become a default)
under, or give
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to
others any right of termination, amendment, acceleration or cancellation of any
agreement, indenture or instrument to which Debtor is a party, or result in a
violation of any federal, state, local or foreign law, rule, regulation, order,
judgment or decree (including federal and state securities laws and regulations)
applicable to Debtor or by which any property or asset of Debtor is bound or
affected (except for such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not, individually or in the
aggregate, have a Material Adverse Effect on Debtor); provided that, for the
purposes of such representations as to federal, state, local, or foreign law,
rule or regulation, no representation is made herein with respect to any of the
same applicable solely to Lender and not to Debtor. Other than with respect to
certain consents or approvals to be obtained from one or more Gaming Regulators,
Debtor is not required under applicable federal, state or local law, rule or
regulation in the United States to obtain any consent, approval, authorization
or order of, or make any filing or registration with, any court or government
agency in order for it to execute, deliver or perform any of its obligations
under this Agreement in accordance with the terms hereof, provided that, for
purposes of the representation made in this sentence, Debtor is assuming and
relying upon the accuracy of the relevant representations and agreements of
Lender contained herein.
4.8 No Material
Adverse Change. Since May 3, 2007 no Material Adverse Effect
has occurred or exists with respect to Debtor.
4.9 No Undisclosed
Liabilities. Debtor has not since May 3, 2007 incurred any liabilities or
obligations not disclosed to Lender, other than those incurred in the ordinary
course of Debtor’s business or which, individually or in the aggregate, do not
or would not have a Material Adverse Effect on Debtor.
4.10 No Undisclosed
Events or Circumstances. No event or circumstance has occurred
since May 3, 2007 or currently exists with respect to Debtor or its business,
properties, prospects, operations or financial condition, which, under
applicable law, rule or regulation, required public disclosure or announcement
by Debtor but which has not been so publicly announced or
disclosed.
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5.
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REPRESENTATIONS
AND WARRANTIES OF LENDER.
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Lender
hereby represents and warrants to Debtor, as of the date of this Agreement and
as of the Closing Date, that:
5.1 Authorization. Lender
has full power and authority to enter into this Agreement, and this Agreement,
when executed and delivered by all other parties hereto, will constitute the
valid and legally binding obligation of Lender, enforceable against Lender in
accordance with its terms, except as such enforceability may be limited (i) by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally the enforcement of, creditors’
rights and remedies or (ii) by other equitable principles of general
application.
5.2 Accredited
Investor. Lender is an “accredited investor,” as that term is
defined in the statute and rules and regulations of the federal Securities
Act.
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5.3 Purchase Entirely for Own
Account. Lender understands that this Agreement is
entered into by Debtor with Lender in reliance upon Lender’s representation to
Debtor, made by Lender’s execution of this Agreement, that the Amended and
Restated Exchangeable Note, and the Lender Equity Interest, if acquired in
exchange therefore, will be acquired by Lender for investment for Lender’s own
account, and not as a nominee or agent of any other person.
5.4 Restricted Nature
of Lender Equity Interest. Lender understands that Lender’s
acquisition of the Lender Equity Interest in exchange for the Amended and
Restated Exchangeable Note, if effected, will not be registered under the
Securities Act, and that the Lender Equity Interest, if acquired by Lender, will
be restricted from transfer pursuant to the organization documents of Debtor and
under applicable federal and state securities laws and gaming laws.
5.5 Receipt of
Information. Lender has had an opportunity to ask questions
and receive answers from Debtor regarding Debtor, the terms and conditions of
the sale of the Amended and Restated Exchangeable Note and the business,
properties, prospects and financial condition of Debtor, and to obtain
additional information (to the extent Debtor possessed such information or could
acquire it without unreasonable effort or expense) necessary to verify the
accuracy of any information concerning such matters furnished to Lender by
Debtor or to which Lender had access.
5.6 Investment
Experience. Lender is experienced in evaluating and investing
in securities of companies similar to Debtor, and acknowledges that Lender is
able to bear indefinitely the economic risk of an investment in the Amended and
Restated Exchangeable Note and the Lender Equity Interest, and that Lender has
such knowledge and experience in financial and business matters that he is
capable of evaluating the merits and risks of such an investment.
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6.
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ADDITIONAL
COVENANTS AND AGREEMENTS.
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6.1 Charter
Documents. Debtor hereby covenants that it shall take no
action to amend the organization documents and operating agreement of Debtor
during the period commencing with the date hereof and ending on the Closing
Date.
6.2 Covenants. During
the period commencing with the Closing Date and ending on the earlier of (i) the
date that the principal amount of the Amended and Restated Exchangeable Note and
all other amounts owing thereunder have been paid in full, and (ii) the date
that the Exchangeable Note and all amounts owing thereunder are automatically
transmuted into the right to receive the Lender Equity Interest in accordance
with the provisions of Section 3(a) thereof:
(a) Debtor
shall (i) deliver to Lender unaudited (or audited, if otherwise available)
quarterly balance sheets and income statements of Debtor not more than
forty-five (45) days after the close of each applicable fiscal quarter, and (ii)
permit Lender and any person Lender may designate to review all books and
records, reports, accounts and other financial documents of Debtor and to copy
the same and to make excerpts therefrom, all at such reasonable times and as
often as Lender may reasonably request, so long as such review and copying does
not unreasonably interfere with the business of Debtor; and
(b) Debtor
shall not, directly or indirectly, without the prior written consent of Lender,
subject in the case of each such covenant, however, to the obtaining of all
required pre-approvals thereof, if any, from the Gaming Regulators and subject
to the terms of the Agreement:
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(i) make any
distributions on, or repurchase any membership interests, or loan any funds or
extend any credit to, or guarantee any indebtedness of, any officer, director,
employee, or member of Debtor, or any other person;
(ii) issue or
sell any additional authorized but unissued membership interests or of any other
class of equity of Debtor, or any options or other rights to acquire any such
interests;
(iii) to sell
all or a material portion of its assets, or merge or consolidate with any other
entity, except with respect to a merger of Debtor into an entity controlled by
Debtor, or a merger whose sole purpose is a redomiciliation of Debtor, or
consummated in connection with effecting the Acquisition;
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7.
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TERMINATION.
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7.1 Termination.
This Agreement may be terminated prior to the Closing:
(a)
by mutual written consent of Lender and Debtor;
(b)
by Lender or Debtor:
(i) if the
Closing shall not have occurred on or before June 20, 2007, unless the failure
to consummate the-transactions contemplated by this Agreement on or before such
date is the result of a material breach of this Agreement by the party seeking
to terminate this Agreement; or
(ii) if any
permanent injunction or other order of a court or other competent authority
preventing the consummation of the transactions contemplated by this Agreement
shall have become final and nonappealable;
(c)
by Lender, if Debtor breaches any of its
representations or warranties herein or fails to perform in any material respect
any of its covenants, agreements or obligations under this Agreement;
and
(d)
by Debtor, if Lender breaches any of its representations or
warranties herein or fails to perform in any material respect any of its
covenants, agreements or obligations under this Agreement.
7.2 Effect of
Termination. In the event of such termination of this
Agreement by Debtor or Lender, this Agreement shall forthwith become void and
have no effect, without any liability or obligation on the part of Debtor or
Lender (other than Lender’s obligation to pay third party licensing expenses
pursuant to Section 1A.2 hereof, which shall survive termination of this
Agreement), provided that, in the event that (i) Debtor or Lender refuses to
consummate the transactions contemplated by this
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Agreement,
or (ii) a default under, or breach of any covenant or representation of, this
Agreement on the part of a party shall have occurred that results in the failure
to consummate the transactions contemplated hereby, the non breaching party
hereto shall be entitled to seek and obtain specific performance or to seek and
obtain pecuniary damages from the party refusing to consummate or defaulting,
plus its court costs and reasonable attorneys’ fees in connection with the
pursuit of its remedies hereunder.
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8.
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MISCELLANEOUS.
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8.1 Expenses. Each of Debtor and Lender
shall pay its own expenses incident to preparing, negotiating, entering into and
carrying out the terms of this Agreement and the Amended and Restated
Exchangeable Note entered into pursuant hereto.
8.2 Entire
Agreement. This Agreement and the
Amended and Restated Exchangeable Note referred to herein constitute the entire
agreement among the parties with respect to the subject matter hereof and
thereof, and no party shall be liable or bound to any other party in any manner
by any warranties, representations or covenants, except as specifically set
forth herein or therein.
8.3 Survival of
Warranties. The warranties,
representations and covenants of Debtor and Lender contained in or made pursuant
to this Agreement shall, subject to the provisions of Section 7.2 of this
Agreement, survive the execution and delivery of this Agreement.
8.4 Successors and
Assigns. Except as otherwise
provided herein, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and permitted assigns
of the parties. No party hereto shall have the power to assign its rights or
delegate its obligations under this Agreement without the prior written consent
of the other party hereto. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective estates, heirs, legatees, executors, administrators, personal
representatives, successors and permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
8.5 Governing
Law. This Agreement shall be
governed by and construed under the laws of the State of Nevada as applied to
agreements among Nevada residents entered into and performed entirely within the
State of Nevada, without regard to its conflicts of law
principles.
8.6 Counterparts. This Agreement may be
executed in two (2) or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
8.7 Interpretation. The titles and subtitles
used in this Agreement are used for convenience of reference only and are not to
be considered in construing or interpreting this Agreement. The use in this
Agreement of the masculine, feminine or neuter gender, or the singular or plural
number, shall not limit the scope of any provision of this
Agreement.
8.8 Notices. Unless otherwise provided
herein, all notices and other communications required or permitted under this
Agreement shall be in writing and shall be mailed by United States first-class
mail, postage
prepaid; sent by facsimile with machine confirmation thereof; or delivered
personally by hand or by a nationally recognized courier, addressed to the party
to be notified at the address or facsimile number indicated for such person on
the signature page hereof, or at such other address or facsimile number as such
party may designate by ten (10) days’ advance written notice to the other party
hereto given in conformity with the provisions
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of
this Section 8.8. All such notices and other written communications shall be
effective on the date of such mailing, machine- confirmed facsimile transmission
or delivery.
8.9 Finder’s
Fees. Each party represents that it neither is, nor will be,
obligated for any finder’s fee or commission in connection with the transactions
contemplated by this Agreement. Lender agrees to indemnify and to hold harmless
Debtor from any liability for any commission or compensation in the nature of a
finder’s fee (and the cost and expenses of defending against such liability) for
which Lender is determined to be responsible. Debtor agrees to indemnify and
hold harmless Lender from any liability for any commission or compensation in
the nature of a finder’s fee (and the costs and expenses of defending against
such liability) for which Debtor is determined to be responsible.
8.10 Attorneys’
Fees. If any action at law or in equity is necessary to
enforce interpret the terms of this Agreement, or any agreement or instrument
ancillary hereto, the prevailing party shall be entitled to reasonable
attorneys’ fees, costs and disbursements in addition to any other relief to
which such party may be entitled in such action.
8.11 Amendments and
Waivers. Any term or provision of this Agreement may be
amended and the observance of any term or provision of this Agreement may be
waived (either generally or in a particular instance, and either retroactively
or prospectively), only with the written consent of the other party hereto. Any
amendment or waiver affected in accordance with this paragraph shall be binding
upon the successors and permitted assigns of the parties hereto.
8.12 Severability. If
one or more provisions of this Agreement are held to be unenforceable under
applicable law, such provisions shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provisions were so
excluded and shall otherwise be enforceable in accordance with its
terms.
8.13 Third-Party
Beneficiary Rights. It is the express intent of the parties
hereto that no third-party beneficiary rights be created or deemed to exist in
favor of any person not a party to Agreement, except as and to the extent
otherwise expressly agreed in writing by the parties hereto.
8.14 Recitals
Incorporation. The recitals set forth
above are hereby incorporated into this Agreement as material parts thereof and
not simply as mere recitals.
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9.
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CANCELLATION OF MAY 3
DOCUMENTS.
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Upon
the execution of this Agreement and the Amended and Restated Exchangeable Note,
the Debtor and Lender agree that the May 3 Documents are cancelled and shall be
of no further force or effect and neither Debtor or Lender shall have any
claims, rights or actions relating to or emitting from said May 3 Documents.
Upon execution of this Agreement, Lender shall return to Debtor, marked as
cancelled, the Exchangeable Promissory Note dated May 3, 2007 in the amount of
$1,250,000.
[SIGNATURES
ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Loan Agreement as of the date first above written.
DEBTOR:
CASINO XXXXX XXXX HOLDING, LLC
a Nevada limited liability company
By: /s/
Xxxxx X.
Xxxxxx
Xxxxx X. Xxxxxx
Its: CEO and Manager
Date: June 20, 2007
LENDER:
PLAINFIELD GAMING INC.
a Delaware Corporation
By: /s/_Thomas X.
Fritsch________
Name: Xxxxxx X. Xxxxxxx
Its: Authorized Individual
Date: 6/20/07
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