EXHIBIT 10.23
AMENDMENT NUMBER 2 TO LOAN AND SECURITY AGREEMENT
THIS AMENDENT NUMBER 2 TO LOAN AND SECURITY AGREEMENT (this
"Amendment"), is entered into as of November 29, 2002, by and among, on the one
hand FOOTHILL CAPITAL CORPORATION, a California corporation ("Lender") and, on
the other hand MIKOHN GAMING CORPORATION, a Nevada corporation (Borrower"), and
the other Obligors identified on the signature pages hereof.
WITNESSETH
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WHERAS, Borrower, the other Obligors and Lender are parties
to that certain Loan and Security Agreement, dated as of February 14, 2002
(as amended, restated, supplemented, or modified from time to time, the "Loan
Agreement");
WHEREAS, Borrower has requested that the Loan Agreement be
amended further to reflect Borrower's operations since the Closing Date; and
WHEREAS, subject to the satisfaction of the conditions set
forth herein, Lender is willing to so consent to the amendment of the Loan
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree to amend the
Loan Agreement as follows:
1. DEFINITIONS. Capitalized terms used herein and not otherwise defined
herein shall have the meaning ascribed to them in the Loan Agreement, as amended
hereby.
2. AMENDMENTS TO LOAN AGREEMENT.
(a) Section 1.1 of the Loan Agreement is hereby amended by adding the
following defined terms in proper alphabetical order or amending and restating
the following definitions in their entirety, as the case may be:
"Consolidated EBITDA" means, with respect to any Person, for any
period, the Consolidated Net Income of such person for such period adjusted to
add thereto (to the extent deducted from net revenues in determining
Consolidated Net Income), without duplication, the sum of
(1) Consolidated income tax expense;
(2) Consolidated depreciation and amortization expense;
(3) Consolidated Interest Expense;
(4) all other non-cash charges attributable to the grant,
exercise or repurchase of options for or shares of Qualified Capital Stock to or
from employees of such Person and its Consolidated Subsidiaries;
(5) with respect to Borrower, all other non-cash charges,
as demonstrated to Lender's satisfaction, of no greater than $3,700,000, taken
during the fiscal quarter of Borrower ending June 30, 2002; and
(6) with respect to Borrower, a one time restructuring
charge, as demonstrated to Lender's satisfaction, of no greater than
$27,000,000, taken during the fiscal quarter of Borrower ending September 30,
2002; less
the amount of all cash payments made by such Person or any of its
Subsidiaries during such period to the extent such payments relate to non-cash
charges that were added back in determining Consolidated EBITDA for such period
or any prior period, provided, that consolidated income tax expense and
depreciation and amortization of a Subsidiary that is less than a Wholly Owned
Subsidiary shall only be added to the extent of the equity interest if Borrower
in such Subsidiary.
3. REAFFIRMATION AND CONSENT. Each Guarantor hereby (a) represents and
warrants to Lender that the execution, delivery, and performance of this
Amendment are within its powers, have been duly authorized by all necessary
action, and are not in contravention of any law, rule, or regulation, or any
order, judgment, decree, writ, injunction, or award of any arbitrator, court,
or governmental authority, or of the terms of its charter or bylaws, or of any
contract or undertaking to which it is a party or by which any of its
properties may be bound or affected; (b) consents to the transactions
contemplated by this Amendment; (c) acknowledges and reaffirms its obligations
owing to Lender under any Loan Documents to which it is a party; and (d) agrees
that each of the Loan Documents to which it is a party is and shall remain in
full force and effect. Although each Guarantor has been informed of the matters
set forth herein and has acknowledged and agreed to same, it understands that
Lender has no obligations to inform it of such matters in the future or to seek
its acknowledgement or agreement to future amendments, and nothing herein shall
create such a duty.
4. CONDITIONS PRECEDENT TO THIS AMENDENT. The satisfaction of each of the
following shall constitute conditions precedent to the effectiveness of this
Amendment and each and every provision hereof:
(a) The representations and warranties in the Loan Agreement and the
other Loan Documents shall be true and correct in all respects on and as of the
date hereof, as though made on such date (except to the extent that such
representations and warranties relate soley to an earlier date);
(b) Borrower shall have paid Lender an amendment fee of $5,000;
(c) No Default or Event of Default shall have occurred and be
continuing on the date hereof or as of the date of the effectiveness of this
Amendment; and
(d) No injunction, writ, restraining order, or other order of any
nature prohibiting, directly or indirectly, the consummation of the transactions
contemplated herein shall have been issued and remain in force by any Government
Authority against the Obligor or Lender.
5. CONSTRUCTION. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEVADA APPLICABLE TO CONTRACTS MADE AND
TO BE PERFORMED IN THE STATE OF NEVADA.
6. ENTIRE AMENDMENT; EFFECT OF AMENDMENT. This Amendment, and terms and
provisions hereof constitute the entire agreement among the parties pertaining
to the subject matter hereof and supersedes any and all prior or contemporaneous
amendments relating to the subject matter hereof. Except for the amendments to
the Loan Agreement expressly set forth in Section 2 hereof, the Loan Agreement
and other Loan Documents shall remain unchanged and in full force and effect. To
the extent any terms or provisions of this Amendment conflict with those of the
Loan Agreement or other Loan Documents, the terms and provisions of this
Amendment shall control. This Amendment is a Loan Document.
7. COUNTERPARTS; TELEFACSIMILE EXECUTION. This Amendment may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument and any of the parties hereto may execute this Amendment by
signing any such document. Delivery of an executed counterpart of this Amendment
by telefacsimile shall be equally as effective as delivery of an original
executed counterpart of this Amendment. Any party delivering an executed
counterpart of this amendment by telefacsimile also shall deliver an original
executed counterpart of this Amendment, but failure to deliver an original
executed counterpart shall not affect the validity, enforceability, and binding
effect of this Amendment.
8. MISCELLANEOUS.
(a) Upon the effectiveness of this Amendment, each reference in the
Loan Agreement to "this Agreement," "hereunder," "herein," "hereof" or words of
like import referring to the Loan Agreement shall mean and refer to the Loan
Agreement as amended by this Amendment.
(b) Upon the effectiveness of this Amendment, each reference in the
Loan Documents to the "Loan Agreement," "thereunder," "therein," "thereof' or
words of like import referring to the Loan Agreement shall mean and refer to the
Loan Agreement as amended by this Amendment.
[Signature pages follow]
IN WITNESS WHEREOF, the parties have caused this Amendment
to be executed and delivered as of the date first written above.
MIKOHN GAMING CORPORATION
A Nevada corporation, as Borrower
By: _________________________
Title: _________________________
GAMES OF NEVADA, INC.
A Nevada corporation, as a Guarantor
By: _________________________
Title: _________________________
MGC, INC.
A Nevada corporation, as a Guarantor
By: _________________________
Title: _________________________
MIKOHN INTERNATIONAL, INC.
A Nevada corporation, as a Guarantor
By: _________________________
Title: _________________________
MIKOHN NEVADA
A Nevada corporation, as a Guarantor
By: _________________________
Title: _________________________
PROGRESSIVE GAMES, INC.
A Delaware corporation, as a Guarantor
By: _________________________
Title: _________________________
FOOTHILL CAPITAL CORPORATION
A California corporation, as Lender
By: _________________________
Title: _________________________
