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EXHIBIT 10.49
AMENDMENT NO. 1 TO LOAN DOCUMENTS
THIS AMENDMENT NO. 1 TO LOAN DOCUMENTS (this "Amendment"), is entered
into as of April 22, 1999, 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 LEISURE TIME
CRUISE CORPORATION, a Colorado corporation ("Borrower"), with its chief
executive office located at 0000 Xxxxxx Xxxx, Xxxx, Xxxx 00000, with reference
to the following facts:
A. Borrower and Foothill are parties to that certain Security Agreement
dated as of October 9, 1998 (the "Security Agreement"). All initially
capitalized terms used but not defined herein shall have the meanings set forth
in the Security Agreement.
B. As of April ___, 1999, Borrower is indebted to Foothill pursuant to
the Loan Documents in the principal amount of $____________________, without
offset or defense (the "Original Term Loan"). The Original Term Loan is
evidenced by that certain Secured Promissory Note, in the original principal
amount of $3,000,000.00, dated October 9, 1998, executed by Borrower in favor of
Foothill. The Obligations under the Loan Documents are secured by the Collateral
described in the Loan Documents.
C. Borrower has requested that Foothill provide certain financing to
affiliates of Borrower's, Leisure Express Cruise, L.L.C., (the "Leisure Express
Term Loan"), and Florida Casino Cruises, Inc., (the "Florida Casino Term Loan").
(The Leisure Express Term Loan and the Florida Casino Term Loan may hereinafter
from time to time be referred to collectively as the "New Term Loans.") To
induce Foothill to make the New Term Loans, Borrower has agreed to (i) execute a
Continuing Guaranty in favor of Foothill with respect to the New Term Loans (the
"Borrower Guaranty"), and (ii) grant a security interest in the Collateral in
favor of Foothill to secure the Borrower Guaranty (in addition to continuing to
secure the Obligations described in the Security Agreement).
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained in this Amendment and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Borrower and Foothill
hereby agree to the above Recitals and as follows:
1. AMENDMENTS TO SECURITY AGREEMENT. The Security Agreement is hereby
amended as follows:
1.1 Definitions.
1.1.1 The term "Equipment" which appears in Section 1.1 of the
Security Agreement is hereby amended to read in its entirety as follows:
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"Equipment" means all of Borrower's present and hereafter acquired
machinery, machine tools, motors, equipment, furniture, furnishings,
fixtures, vehicles (including motor vehicles and trailers), tools,
parts, dies, jigs, goods, including, without limitation, all items of
equipment and other personal property located on the Vessels, and any
interest in any of the foregoing, and all attachments, accessories,
accessions, replacements, substitutions, additions, and improvements to
any of the foregoing, wherever located. Notwithstanding the foregoing,
"Equipment" shall not include any vessels acquired by Borrower after
the Closing Date (except to the extent such after-acquired vessel(s)
constitute proceeds of the Vessels or are vessels pertaining to the
Vessels)."
1.1.2 The term "Loan Documents" as defined in the Security
Agreement is hereby amended and supplemented to include (i) this Amendment, and
(ii) the Borrower Guaranties.
1.1.3 The term "Obligations" as defined in the Security
Agreement shall be deemed to include all obligations of Borrower now or
hereafter arising under or in connection with the Borrower Guaranties.
1.1.4 The following terms are hereby added to Section 1.1 of the
Security Agreement:
""Borrower Guaranty" means that acertain Continuing Guaranty, dated
April 22, 1999, executed by Borrower in favor of Foothill which
pertains to the Florida Casino Obligations and the Leisure Express
Obligations."
""Florida Casino" means Florida Casino Cruises, Inc., a Georgia
corporation."
""Florida Express Obligations" means all of the "Obligations"
described in that certain Security Agreement, dated April 22, 1999,
executed by Florida Casino in favor of Foothill."
""Leisure Express" means Leisure Express Cruise, L.L.C., a Colorado
limited liability company."
""Leisure Express Obligations" means all of the "Obligations"
described in that certain Security Agreement, dated April 22, 1999,
executed by Leisure Express in favor of Foothill."
1.2 References to Exhibit "A" and Exhibit "E-1". The references
to Exhibit "A" and Exhibit "E-1" in the Security Agreement shall both mean
Schedule "E-1" attached to the Security Agreement.
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1.3 Section 3.2. Section 3.2 of the Security Agreement is hereby
amended to read in its entirety as follows:
"3.2 Term. This Agreement shall become effective upon the execution
and delivery hereof by Borrower and Foothill and shall continue in
full force and effect until all Obligations, all Leisure Express
Obligations, and all Florida Casino Obligations have been fully and
finally discharged."
1.4 Section 4.1. Section 4.1 of the Security Agreement is hereby
amended to read in its entirety as follows:
"4.1 Grant of Security Interest. Borrower hereby grants to Foothill
a continuing security interest in all currently existing and
hereafter acquired or arising Collateral in order to secure (i)
prompt repayment of any and all Obligations, (ii) prompt repayment
of any and all "Guaranteed Obligations" described in the Borrower
Guaranty, and (iii) prompt performance by Borrower of each of its
covenants and duties under the Loan Documents. Foothill's security
interest in the Collateral shall attach to all Collateral without
further act on the part of Foothill or Borrower."
1.5 Section 5.2. Section 5.2 of the Security Agreement is hereby
amended to add the following location for Equipment:
The vessel known as the Leisure Express, United States Official No.:
594643.
1.6 Section 6.11. The following sentence is hereby added to the
end of Section 6.11 of the Security Agreement:
"In addition, Borrower shall arrange for the immediate removal of
any gaming equipment (including but not limited to all Collateral)
located on the Leisure Express if the use or possession of such
equipment on the Leisure Express is prohibited (or becomes
prohibited due to a change in law), and such equipment shall be
relocated to a place acceptable to Foothill."
1.7 Schedule "E-2". Schedule "E-2 attached to the Security
Agreement is hereby deleted.
1.8 Section 8. The word "or" which appears at the end of Section
8.11 is hereby deleted, the period (".") at the end of Section 8.12 is hereby
replaced with a semi-colon (";") and the word "or", and the following new
Section 8.13 is hereby added to the Security Agreement:
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"If any "default" or "Event of Default" occurs under or in
connection with the loan documents evidencing, or pertaining to, the
Leisure Express Obligations and/or the Florida Casino Obligations."
2. REIMBURSEMENT FOR COSTS AND EXPENSES. Concurrently with the
execution of this Amendment by Borrower, Borrower shall pay to Foothill an
amount equal to the costs and expenses incurred by Foothill in connection with
this Amendment (including, but not limited to, attorney's fees and costs).
3. CONDITIONS TO EFFECTIVENESS OF AMENDMENT. This Amendment shall
not be effective until the following conditions precedent have been satisfied
(as determined by Foothill in Foothill's sole and absolute discretion):
3.1 Foothill shall have received a fully executed Consent of
Guarantors, in the form attached hereto as Exhibit "A";
3.2 Borrower shall have delivered to Foothill duly executed
original copies of this Amendment and the Borrower Guaranty (in form and
substance acceptable to Foothill);
3.3 Foothill shall have received a fully executed Second
Amendment to First Preferred Ship Mortgage, in the form attached hereto as
Exhibit "B";
3.4 Borrower shall have delivered to Foothill certified
resolutions of Borrower approving (i) this Amendment (and the transactions
contemplated thereby), (ii) the execution and delivery of this Amendment and the
Borrower Guaranty, and (iii) all other Loan Documents contemplated in connection
with this Amendment;
3.5 There shall have been no deterioration in the financial
condition of Borrower after October 1, 1998; and
3.6 All other documents and legal matters in connection with the
transactions contemplated hereby shall have been delivered, executed, and/or
recorded (as appropriate) and shall be in form and substance satisfactory to
Foothill and its counsel.
4. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants
that no Event of Default has occurred and is continuing under the Security
Agreement. Borrower confirms that all representations and warranties set forth
in the Security Agreement (including, but not limited to, the representations
and warranties contained in Section 5 of the Security Agreement) are true and
correct as of the date of this Amendment.
5. SECURITY AGREEMENT IN FULL FORCE; INCORPORATION OF OTHER TERMS.
The Security Agreement and all other Loan Documents executed in
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connection therewith, as amended and supplemented by this Amendment, shall
remain in full force and effect in accordance with their terms as amended and
supplemented by this Amendment. The terms and conditions of Sections 13, 15.2,
15.3, 15.4, 15.5, 15.6, and 15.7 of the Security Agreement are hereby
incorporated by reference, provided that all references to "Agreement" in such
sections shall mean "Amendment" for purposes of this Amendment. This Amendment
cannot be changed or terminated orally. This Amendment together with the
Security Agreement and the other Loan Documents (including the documents and
instruments executed in connection with this Amendment), reflects the entire
understanding of the parties with respect to the transactions contemplated
hereby and shall not be contradicted, modified, or qualified by any other
agreement, oral or written, whether before or after the date hereof.
6. CANCELLATION OF PRIOR AMENDMENT NO. 1. In contemplation of
Foothill providing to Borrower an additional capital expenditure credit facility
of up to $325,000 (the "Proposed Capital Expenditure Line of Credit"), Foothill
prepared an Amendment No. 1 to Loan Documents, a Secured Promissory Note,
Amendment to First Preferred Ship Mortgage, and related documents, which were
signed by Borrower and delivered to Foothill (the "Proposed Capital Expenditure
Line Documents"). Borrower acknowledges and agrees that (i) Borrower elected not
to proceed with the Proposed Capital Expenditure Line of Credit and Foothill has
no obligation to provide such financing to Borrower, (ii) the Proposed Capital
Expenditure Line Documents were never accepted by Foothill and never came into
effect, and, to the extent necessary, are hereby deemed to be cancelled and of
no further force and effect, and (iii) Foothill may discard and destroy all
copies of the Proposed Capital Expenditure Line Documents.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to Loan Documents to be executed and delivered to Foothill at Foothill's offices
in Los Angeles, California.
LEISURE TIME CRUISE CORPORATION,
a Colorado corporation
By: /s/
-----------------------------------
Print Name:
Title:
Accepted and effective this
22nd day of April, 1999
FOOTHILL CAPITAL CORPORATION,
a California corporation
By: /s/
--------------------------------
Print Name:
Its:
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Exhibit "A"
[FORM OF] CONSENT OF GUARANTORS
THIS CONSENT OF GUARANTORS (this "Consent") is made as of this ____
day of April, 1999, by XXXX XXXXXXX, individually, LEISURE TIME CASINOS &
RESORTS, INC., and LEISURE TIME TECHNOLOGY, INC. (collectively, the
"Guarantors"), in favor of FOOTHILL CAPITAL CORPORATION, a California
corporation ("Foothill"), with reference to the following:
A. Foothill and LEISURE TIME CRUISE CORPORATION, a Colorado corporation
("Borrower"), entered into that certain Security Agreement dated as of October
9, 1998 (the "Security Agreement"), in connection with which Foothill agreed to
provide certain financial accommodations to Borrower. To induce Foothill to
provide such financial accommodations, the Guarantors each executed a Continuing
Guaranty in favor of Foothill, both of which are dated as of October 9, 1998
(collectively, the "Guaranties").
B. Borrower has requested that Foothill modify and amend the terms of
the Security Agreement pursuant to the terms and conditions set forth in that
certain Amendment No. 1 to Loan Documents, of even date herewith ("Amendment No.
1").
C. To induce Foothill to enter into Amendment No. 1, the Guarantors
have agreed to execute and deliver this Consent to Foothill.
NOW, THEREFORE, in consideration of the foregoing recitals (all of
which are incorporated herein) and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Guarantors
hereby agree as follows:
1. Review and Approval of Loan Documents. The Guarantors have been
provided with copies of each of the Loan Documents (including, but not limited
to, Amendment No. 1), and the Guarantors acknowledge and confirm that they have
reviewed and approved the terms of the Loan Documents and Amendment No. 1.
2. Full Force and Effect; Ratification and Reaffirmation of the
Guaranties. All provisions of the Guaranties shall remain in full force and
effect and are hereby ratified and reaffirmed by the Guarantors.
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IN WITNESS WHEREOF, this Consent of Guarantors is executed as of the
day and year first above mentioned.
/s/ XXXX XXXXXXX
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XXXX XXXXXXX, individually,
LEISURE TIME CASINOS & RESORTS, INC.
By: /s/
-----------------------------------------
Print Name:
Title:
LEISURE TIME TECHNOLOGY, INC.
By: /s/
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Print Name:
Title:
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Exhibit "B"
[FORM OF] SECOND AMENDMENT TO FIRST PREFERRED SHIP MORTGAGE
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