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EXHIBIT 10(n)(ii)
AMENDMENT NUMBER ONE TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER ONE TO LOAN AND SECURITY AGREEMENT (this "FIRST
AMENDMENT") is entered into as of December 9, 1999, by and between FOOTHILL
CAPITAL CORPORATION, a California corporation ("Foothill"), with a place of
business located at 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000-0000, and FITZGERALDS GAMING CORPORATION, a Nevada corporation
("Borrower"), with its chief executive office located at 000 Xxxxxxx Xxxxxx, Xxx
Xxxxx, Xxxxxx, 00000 and constitutes an amendment to that certain Loan and
Security Agreement, dated as of October 29, 1998 (as amended, restated,
supplemented, or otherwise modified from time to time, the "LOAN AGREEMENT"), by
and among Foothill and Borrower (hereinafter, collectively, the "PARTIES").
Capitalized terns used herein and not defined herein shall have the meanings
ascribed to them in the Loan Agreement, as amended hereby.
WITNESSETH
WHEREAS, the Parties desire to amend the Loan Agreement, in accordance with
the amendment provisions of Section 15.6 thereof, as set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree to amend the
Loan Agreement, effective immediately, as follows:
A. AMENDMENTS TO LOAN AGREEMENT.
1. Section 1.1 of the Loan Agreement hereby is amended by inserting each
of the following definitions in their entirety:
"Chilled Water Service Agreement" means that certain Chilled
Water Service Agreement dated as of December 10, 1999, by and between FLVI and
E.three.
"E-three" means e.three Custom Energy Solutions, LLC, a Nevada
limited liability company.
"First Amendment" means that certain Amendment Number One to
Loan and Security Agreement dated as of December 9, 1999, by and among, Foothill
and Borrower.
2. Section 1.1 of the Loan Agreement hereby is amended by amending and
restating in its entirety, the following definition:
"Loan Documents" means this Agreement, the First Amendment, the
Letters of Credit, the Mortgages, the Environmental Indemnity, the Guaranty,
the Guarantor Security Agreement, the Guarantor Stock Pledge Agreement, the
Stock Pledge Agreement, the Copyright Security Agreement, the Trademark Security
Agreement, the Tunica Ship Mortgage, the
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Intercreditor Agreement, the Obligor Subordination Agreement, any note or notes
executed by any Obligor and payable to Foothill, and any other agreement entered
into, now or in the future, in connection with this Agreement.
3. Section 2.1(b) of the Loan Agreement hereby is amended and restated
in its entirety as follows:
(b) Anything to the contrary in Section 2.1(a) above
notwithstanding, Foothill may, in its reasonable (from the perspective
of a secured lender) credit judgment, create and maintain reserves
against the Maximum Revolving Amount if any Obligor fails to pay any
monies (whether taxes, assessments, insurance premiums, or, in the case
of leased or licensed properties or assets, rents, license payments, or
other amounts under such leases or licenses, or otherwise) due to third
Persons (including, without limitation, any and all monies due by FLVI
to E.Three or any other Person under the Chilled Water Service
Agreement) or if Foothill determines that there has occurred a Material
Adverse Change.
4. Section 6.2 of the Loan Agreement hereby is amended and restated in
its entirety to read as follows:
6.2 REPORTING. Provide Foothill with the following documents at
the following times in form satisfactory to Foothill: (a) copies of each
report in respect of any Obligor's business issued by a Gaming Authority
or made by an Obligor to a Gaming Authority within 15 days of their
respective issuance or filing date; (b) copies of all operating and
capital budgets, and all other budgets, summaries of sources and uses of
funds, projections, and financial information prepared by or on behalf
of any Obligor (including in respect of any Casino or Facility) promptly
upon the preparation and delivery to or by the chief financial officer
of any Obligor; and (c) written evidence, in form and substance
satisfactory to Foothill in its sole and absolute discretion, that FLVI
shall have paid any and all amounts owed by FLVI to E.three or any other
Person under the Chilled Water Service Agreement within 5 Business Days
after any such payment is due.
5. Section 6.6 of the Loan Agreement hereby is amended and restated in
its entirety to read as follows:
6.6 CHILLED WATER. Borrower shall cause FLVI to pay, as and when
such payments are due, all amounts owed to E.three or any other Person
under the Chilled Water Services Agreement.
B. CONDITIONS PRECEDENT TO FIRST AMENDMENT.
The satisfaction of each of the following, unless waived or
deferred by Foothill in its sole discretion, shall constitute conditions
precedent to the effectiveness of this First Amendment and each and every
provision hereof:
1. Borrower shall have executed and delivered to Foothill the First
Amendment.
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2. Each of the Guarantors shall have executed and delivered to Foothill
a Reaffirmation and Consent, in the form attached hereto as Exhibit A.
3. The representations and warranties in this First Amendment, the Loan
Agreement as amended by this First Amendment, 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 solely to an earlier date).
4. 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
governmental authority against the Borrower or Foothill.
5. After giving effect hereto, other than as previously disclosed to
Foothill in writing, no Event of Default or event which with the giving of
notice or passage of time would constitute an Event of Default shall have
occurred and be continuing on the date hereof, nor shall result from the
consummation of the transactions contemplated herein.
6. All other documents and legal matters in connection with the
transactions contemplated by this First Amendment shall have been delivered or
executed or recorded and shall be in form and substance satisfactory to Foothill
and its counsel.
C. ACKNOWLEDGEMENT OF BORROWER.
Borrower acknowledges and agrees that any and all costs,
expenses and fees (including without limitation, attorneys fees) incurred by
Foothill in connection with this First Amendment shall constitute Foothill
Expenses.
D. REPRESENTATIONS AND WARRANTIES.
Borrower hereby represents and warrants to Foothill that (a) the
execution, delivery, and performance of this First Amendment, are within its
corporate powers, have been duly authorized by all necessary corporate 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, and (b) the Loan Agreement, as amended by this First
Amendment, constitutes Borrower's legal, valid, and binding obligation,
enforceable against Borrower in accordance with its terms.
E. FURTHER ASSURANCES.
Borrower agrees to execute and deliver all financing statements,
agreements, documents, and instruments, in form and substance satisfactory to
Foothill, and take all actions as Foothill may reasonably request from time to
time, to perfect and maintain the perfection and priority of Foothill's security
interests in the Collateral, and to fully consummate the transactions
contemplated under the Loan Agreement and this First Amendment.
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F. EFFECT ON LOAN DOCUMENTS.
The Loan Agreement, as amended hereby, and the other Loan
Documents shall be and remain in full force and effect in accordance with their
respective terms and each hereby is ratified and confirmed in all respects.
Except as expressly set forth herein, the execution, delivery, and performance
of this First Amendment shall not operate as a waiver of or as an amendment of
any right, power, or remedy of Foothill under the Loan Agreement, as in effect
prior to the date hereof. This First Amendment shall be deemed a part of and
hereby is incorporated into the Loan Agreement.
G. MISCELLANEOUS.
1. This First Amendment shall be governed by and construed in accordance
with the laws of the State of California without giving effect to its
conflicts-of-laws principles (other than any provisions thereof validating the
choice of the laws of the State of California as the governing law).
2. This First Amendment, and the 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 as expressly amended hereby, 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 First Amendment conflict with those
of the Loan Agreement or other Loan Documents, the terms and provisions of this
First Amendment shall control. This First Amendment shall be deemed part of and
is hereby incorporated into the Loan Agreement.
3. This First 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 First Amendment by signing any such
counterpart. Delivery of an executed counterpart of this First Amendment by
telefacsimile shall be equally as effective as delivery of an original executed
counterpart of this First Amendment. Any party delivering an executed
counterpart of this First Amendment by telefacsimile also shall deliver an
original executed counterpart of this First Amendment, but the failure to
deliver an original executed counterpart shall not affect the validity,
enforceability, and binding effect of this First Amendment.
4. This First Amendment cannot be altered, amended, changed or modified
in any respect or particular unless each such alteration, amendment, change or
modification shall have been agreed to by each of the Parties and reduced to
writing in its entirety and signed and delivered by each Party.
5. Upon the effectiveness of this First 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 First Amendment.
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6. Upon the effectiveness of this First 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 First Amendment.
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IN WITNESS WHEREOF, the Parties have caused this First Amendment to be
executed and delivered as of the date first written above.
FOOTHILL CAPITAL CORPORATION,
a California corporation
By /s/ XXXXXXX X. XXXXXX
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Title: Vice President/Account Executive
FITZGERALDS GAMING CORPORATION,
a Nevada corporation
By /s/ Xxxxxxx X. XxXxxxxxx
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Name: Xxxxxxx X. XxXxxxxxx
Title: Executive Vice President
and Chief Financial Officer
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EXHIBIT A
REAFFIRMATION AND CONSENT
All capitalized terms used herein but not otherwise defined
herein shall have the meanings ascribed to them in that certain Amendment Number
One Loan and Security Agreement, dated as of December 9, 1999 (the "FIRST
AMENDMENT"). The undersigned hereby (a) represents and warrants to Foothill that
the execution, delivery, and performance of this Reaffirmation and Consent are
within its corporate or organizational powers, have been duly authorized by all
necessary corporate or other organizational 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 amendment of the Loan Agreement by the First Amendment; (c)
acknowledges and reaffirms its obligations owing to Foothill under the Guaranty
and each of the other Loan Documents to which it is party; and (d) agrees that
its Guaranty and the other Loan Documents to which it is a party are and shall
remain in full force and effect. Although the undersigned has been informed of
the matters set forth herein and has acknowledged and agreed to same, it
understands that Agent has no obligation to inform the undersigned of such
matters in the future or to seek its acknowledgement or agreement to future
amendments, and nothing herein shall create such a duty.
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IN WITNESS WHEREOF, the undersigned has executed and delivered
this Reaffirmation and Consent as of the date first written above.
FITZGERALDS SOUTH, INC., a Nevada corporation
FITZGERALDS MISSISSIPPI, INC., a Mississippi
corporation
FITZGERALDS LAS VEGAS, INC., a Nevada
corporation
FITZGERALDS FREMONT EXPERIENCE
CORPORATION, a Nevada corporation
FITZGERALDS RENO, INC., a Nevada corporation
FITZGERALDS INCORPORATED, a Nevada
corporation
FITZGERALDS BLACK HAWK, INC., a Nevada
corporation
FITZGERALDS BLACK HAWK II, INC., a Colorado
corporation
000 XXXX XXXXXX LIMITED LIABILITY
COMPANY, a Colorado limited liability company
By: /s/ XXXXXXX X. XXXXXXXXX
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Name: Xxxxxxx X. XxXxxxxxx
Title: Executive Vice President, Chief Financial
Officer, Treasurer, and Secretary of each of
the above-listed companies
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