EXHIBIT 2.2
SECOND AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (this
"Amendment"), dated as of November 1, 2001, is entered into by and among
MAJESTIC INVESTOR HOLDINGS, LLC, a Delaware limited liability company
("Purchaser"); MAJESTIC INVESTOR, LLC, a Delaware limited liability company;
XXXXXX NEVADA GAMING, LLC, a Nevada limited-liability company; XXXXXX
MISSISSIPPI GAMING, LLC, a Mississippi limited liability company; XXXXXX
COLORADO GAMING, LLC, a Colorado limited liability company; FITZGERALDS LAS
VEGAS, INC., a Nevada corporation ("FLV"); 000 XXXX XXXXXX LIMITED LIABILITY
COMPANY, a Colorado limited liability company ("FBH"); FITZGERALDS MISSISSIPPI,
INC., a Mississippi corporation ("FM" and collectively with FLV and FBH,
"Sellers" and each, a "Seller"); and FITZGERALDS GAMING CORPORATION, a Nevada
corporation ("Parent"). Capitalized terms not defined herein have the meanings
ascribed to them in the Purchase and Sale Agreement, dated as of November 22,
2000 and thereafter amended and assigned (as so amended and assigned, the
"Agreement"), by and among Purchaser, Sellers, Parent and certain Affiliates of
Parent or Sellers named on the signature pages of the Agreement.
In consideration of the mutual covenants and agreements set forth in
this Amendment, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Inconsistencies. If any inconsistencies exist between the provisions
of this Amendment and the provisions of the Agreement, then the provisions of
this Amendment shall control and supersede the inconsistent provisions of the
Agreement. Unless otherwise specifically indicated, all references to Sections
are to Sections of the Agreement and such Sections referred to shall include the
effect of the amendments hereunder.
2. Amendments. The Agreement is hereby amended as follows:
A. The phrase "Employee records, personnel files," is inserted
in Section 1.01(b)(iv) between "The" and "minute books."
B. The phrase "termination and abandonment pursuant to" is
inserted in clause (i) of Section 12.02 between "other than" and "the
provisions."
C. Sections 1.01(a)(ii)(A), 1.01(a)(ii)(B), 1.01(a)(iv),
1.01(a)(v), 2.09, 2.11(a), 2.11(b), 2.19 and 6.05 of the Disclosure
Schedule are hereby amended and restated in their entirety as set forth
in Exhibit A hereto.
D. All Contracts that are entered into, or the expiration
dates of which are extended, by any Seller in the ordinary course of
business between October 10, 2001 and the Closing Date and all
Contracts that were entered into or extended by any Seller in the
ordinary course of business prior to October 10, 2001, but which were
not presented to the Purchaser prior to the date hereof and which do
not by their terms expire before the Closing, shall be assigned to, and
assumed by, Purchaser at the Closing in accordance with the
corresponding provisions of
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Section 1.01(a), provided that (i) prior notice of such Contracts or
such extension of the expiration dates, as the case may be, was given
to Purchaser and (ii) Purchaser has approved such Contracts or such
extension, as the case may be, which approval shall be deemed granted
if Purchaser does not object within five Business Days after receiving
such prior notice. Any Contracts that are not assigned and assumed
pursuant to the preceding sentence shall be assigned to, and assumed
by, Purchaser if Purchaser and Sellers so agree.
E. Sections 1.01(a)(ii)(A), 1.01(a)(ii)(B), 1.01(a)(iv),
1.01(a)(v), 2.09, 2.11(a), 2.11(b) and 2.19 of the Disclosure Schedule,
to the extent applicable to each Contract assigned and assumed pursuant
to Section 2.E. of this Amendment, shall be deemed amended to reflect
such assignment and assumption.
F. From October 10, 2001 until the Closing, the Sections of
the Disclosure Schedules shall be deemed amended to delete any
Contracts that terminate prior to the Closing.
3. Invalid Provisions. If any provision of this Amendment is held to be
illegal, invalid or unenforceable under any present or future Law, and if the
rights or obligations of any party hereto under this Amendment will not be
materially and adversely affected thereby, (i) such provision will be fully
severable, (ii) this Amendment will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof
and (iii) the remaining provisions of this Amendment will remain in full force
and effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom.
4. Full Force and Effect. Except as expressly amended by this
Amendment, the Agreement shall continue in full force and effect in accordance
with the provisions thereof on the date hereof and the parties hereto ratify and
agree to be bound by all terms and provisions of the Agreement as amended
hereby.
5. Counterparts. This Amendment may be executed in any number of
counterparts, each of which will be deemed an original, and all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
by the duly authorized officer of each party as of the date first above written.
PURCHASER: MAJESTIC INVESTOR HOLDINGS, LLC,
a Delaware limited liability company
By: /s/ Xxx X. Xxxxxx
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
MAJESTIC INVESTOR, LLC,
a Delaware limited liability company
By: /s/ Xxx X. Xxxxxx
--------------------------------------
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Name:
---------------------------------
Title:
--------------------------------
XXXXXX NEVADA GAMING, LLC,
a Nevada limited-liability company
By: /s/ Xxx X. Xxxxxx
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
XXXXXX MISSISSIPPI GAMING, LLC,
a Mississippi limited liability company
By: /s/ Xxx X. Xxxxxx
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
XXXXXX COLORADO GAMING, LLC,
a Colorado limited liability company
By: /s/ Xxx X. Xxxxxx
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
FLV: FITZGERALDS LAS VEGAS, INC.,
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
FBH: 000 XXXX XXXXXX LIMITED LIABILITY COMPANY,
a Colorado limited liability company doing
business as "Fitzgeralds Casino Black
Hawk"
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
FM: FITZGERALDS MISSISSIPPI, INC.,
a Mississippi corporation
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
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PARENT: FITZGERALDS GAMING CORPORATION,
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
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EXHIBIT A
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Amended and Restated Sections 1.01(a)(ii)(A), 1.01(a)(ii)(B), 1.01(a)(iv),
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1.01(a)(v), 2.09, 2.11(a), 2.11(b), 2.19 and 6.05 of the Disclosure Schedule
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