EXHIBIT 4.2
FIRST AMENDMENT TO LOAN AGREEMENT
FIRST AGREEMENT TO LOAN AGREEMENT, dated November , 2003
between and among Vestin Mortgage, Inc. ("Lender"), Mid-State Raceway, Inc.
("Raceway") and Mid-State Development Corporation ("Development" and Raceway and
Development collectively the "Borrower").
WITNESSETH
WHEREAS, the Lender and the Borrower entered into a certain
Loan Agreement dated June 30, 2003 (the "Loan Agreement", the terms, conditions
and definitions of which are hereby incorporated herein by reference with the
same full force and effect as of set forth herein in full; and
WHEREAS, pursuant to the terms and conditions of the Loan
Agreement the Assignment of Contracts and Permits, Assignment of Leases,
Environmental Indemnity, Security Agreement (collectively the "Ancillary
Collateral Documents") were executed by the respective parties thereto on June
30, 2003; and
WHEREAS, the parties hereto desire to amend the Loan Agreement
and the Ancillary Collateral Documents to provide for the increase in the amount
of the Loan by $3,000,000.00 from $23,000,000.00 to $26,000,000.00 upon the
terms and conditions hereinbelow set forth.
NOW THEREFORE, in consideration of the premises and the terms,
covenants and conditions hereinbelow set forth, the parties hereto do hereby
agree as follows:
1. The Loan Agreement is hereby amended as follows:
(a) The term "Loan" shall be and mean
the aggregate amount of TWENTY SIX MILLION
($26,000,000.00) DOLLARS; and any and all references
in the Loan Agreement to the sum of $23,000,000.00
shall be and mean, from and after the date hereof,
the sum of $26,000,000.00;
(b) The term "Mortgage" shall include
(i) the Consolidated and Restated Mortgage,
Assignment of Leases and Rents, Security Agreement
and Fixture Filing from Raceway to Lender dated as of
the date hereof, encumbering that portion of the
Property owned by Raceway and securing all of
Borrower's obligations under the Note and the other
Loan Documents, (ii) the Mortgage, Assignment of
Leases and Rents, Security Agreement and Fixture
Filing from Raceway to Lender dated as of the
date hereof, encumbering that portion of the Property
owned by Raceway and securing all of Borrower's
obligations under the Note and the other Loan
Documents, and (iii) the Mortgage, Assignment of
Leases and Rents, Security Agreement and Fixture
Filing from Development to Lender dated as of the
date hereof, encumbering that portion of the Property
owned by Development and securing all of Borrower's
obligations under the Note and the other Loan
Documents;
(C)) The term "Note" shall include (i)
the Consolidated Secured Promissory Note dated as of
the date hereof, from Borrower to the order of Lender
in the original stated principal amount of up to
Twenty Six Million ($26,000,000.00) Dollars, as the
same may be modified or amended from time to time,
and (ii) the Secured Promissory Note dated as of the
date hereof, from Borrower to the order of Lender in
the original stated principal amount of up to Three
Million ($3,000,000.00) Dollars, as the same may be
modified or amended from time to time.
(d) The reference in subparagraph 2(C))
of the Loan Agreement to the sum of $2,700,000.00
shall be and mean, from and after the date hereof,
the sum of $5,700,000.00;
(e) The reference in subparagraph 4(a)
of the Loan Agreement to the sum of $2,700,000.00
shall be and mean, from and after the date hereof,
the sum of $5,700,000.00; and
(f) The Loan Agreement shall be amended
to include a new subparagraph designated as "4(f)"
which shall read in its entirety as follows:
"4(f) At the time of the making of the first Advance
in excess of $2,700,000.00 the Borrower shall pay to
the Lender (out of the proceeds of such Advance) an
additional Commitment and Loan Fee in the amount of
$150,000.00."
(g) Exhibit "B-2" of the Loan Agreement
shall be amended to provide that the sum of
$5,700,000.00 shall be utilized for the construction
and furnishing of the VLT Facility; expenses incurred
in connection with the "start-up" of the operation of
the VLT Facility; and for working capital.
2. In order to induce the Lender to execute and perform
this agreement ("First Amendment") the Borrower does hereby:
(a) remake as of the date hereof, each
of the representation, warranties and agreements set
forth in Paragraph 7 of the Loan Agreement
except as set forth on Exhibit "A" annexed hereto and
made a part hereof; and
(b) represent, warrant, covenant and
agreement that each of Raceway and Development: has
the full power and authority to execute, deliver and
perform this First Amendment, the Note and Mortgage;
has taken all action necessary to authorize the
execution, delivery and performance of this First
Amendment, the Note and MOrtgage; and that the
execution, delivery and performance of this First
Amendment and the Note and Mortgage , does not
violate the constitutional documents of Raceway or
Development, respectively, any agreement to which
either of them is a party or by which either of them
is bound, or any law; and upon the execution and
delivery hereof by an officer of Raceway and
Development, respectively, this First Amendment, the
Note and the Mortgage shall be valid and binding upon
each of Raceway and Development and fully enforceable
in accordance with its respective terms.
3. Each of the Ancillary Collateral Documents shall be
and be deemed to be amended to provide that from and after the
date hereof any and all references therein respectively to the
Loan Agreement, the Loan, the Note and/or the Mortgage shall
be and mean such terms as respectively defined in the Loan
Agreement as herein amended.
4. The agreement sets forth the entire agreement among
the parties hereto with respect to the subject matter herein
contained; shall be governed and construed in accordance with
the laws of the State of Nevada; cannot be altered, amended,
modified, terminated or rescinded except by a writing executed
by all of the parties hereto; and shall inure to the benefit
of and be binding upon the parties hereto and their respective
successors, transferees and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this
First Amendment as of the day and year first above written.
Mid-State Raceway, Inc.
By _______________________________
Hoolae Paoa, President
Mid-State Development Corporation
By _______________________________
Hoolae Paoa, President
Vestin Mortgage, Inc.
By _______________________________
