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EXHIBIT 4.1
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FITZGERALDS GAMING CORPORATION
Issuer
AND
FITZGERALDS SOUTH, INC.
FITZGERALDS RENO, INC.
FITZGERALDS INCORPORATED
FITZGERALDS LAS VEGAS, INC.
FITZGERALDS FREMONT EXPERIENCE CORPORATION
FITZGERALDS MISSISSIPPI, INC. (Formerly POLK
LANDING ENTERTAINMENT CORPORATION)
FITZGERALDS BLACK HAWK, INC.
Subsidiary Guarantors
AND
▇▇▇▇▇ FARGO BANK, N.A. (Formerly
FIRST INTERSTATE BANK OF NEVADA, N.A.)
Trustee
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FIRST SUPPLEMENTAL INDENTURE
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Dated as of December 30, 1996
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$123,000,000
13% Senior Secured Notes Due 2002 With Contingent Interest
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FIRST SUPPLEMENTAL INDENTURE (hereinafter, the "FIRST SUPPLEMENTAL
INDENTURE"), dated as of December 30, 1996, among FITZGERALDS GAMING
CORPORATION, a Nevada corporation, as Issuer (the "COMPANY"), and FITZGERALDS
SOUTH, INC., a Nevada corporation, FITZGERALDS RENO, INC., a Nevada corporation,
FITZGERALDS INCORPORATED, a Nevada corporation, FITZGERALDS LAS VEGAS, INC., a
Nevada corporation, FITZGERALDS FREMONT EXPERIENCE CORPORATION, a Nevada
corporation, FITZGERALDS MISSISSIPPI, INC. (formerly named POLK LANDING
ENTERTAINMENT CORPORATION), a Mississippi corporation, and FITZGERALDS BLACK
HAWK, INC., a Nevada corporation, as Subsidiary Guarantors, and ▇▇▇▇▇ FARGO
BANK, N.A. (formerly FIRST INTERSTATE BANK OF NEVADA, N.A.), as Trustee (the
"Trustee").
A. The Company and the Subsidiary Guarantors have executed and
delivered to the Trustee an Indenture dated as of December 19, 1995 (the
"Indenture"), providing for the issuance of $123,000,000 principal amount of the
Company's 13% Senior Secured Notes due 2002 with Contingent Interest (the
"NOTES").
B. The Company and the Subsidiary Guarantors desire to amend the
Indenture in accordance with Article Nine thereof as follows, which amendments
have been authorized by the holders of all of the outstanding Notes pursuant to
Section 902 of the Indenture.
In consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company, the
Subsidiary Guarantors and the Trustee hereby amend the Indenture as follows:
1. SECTION 101 IS HEREBY AMENDED TO ADD THE FOLLOWING DEFINED
TERMS (TO APPEAR IN ALPHABETICAL ORDER WITH ALL DEFINED TERMS IN SUCH SECTION
101) TO READ IN THEIR ENTIRETIES AS FOLLOWS:
"BANKRUPTCY CODE" means Title 11 of the United States Code.
"BANKRUPTCY, INSOLVENCY OR LIQUIDATION PROCEEDING" means (i)
any case commenced by or against the Company or any Subsidiary Guarantor under
any chapter of the Bankruptcy Code, any other proceeding for the reorganization,
recapitalization or adjustment or marshaling of the assets or liabilities of the
Company or any Subsidiary Guarantor, any receivership or assignment for the
benefit of creditors relating to the Company or any Subsidiary Guarantor or any
similar case or proceeding relative to the Company or any Subsidiary Guarantor
or their respective creditors, as such, in each case whether or not voluntary,
(ii) any liquidation, dissolution, marshaling of assets or liabilities or other
winding up of or relating to the Company or any Subsidiary Guarantor, in each
case whether or not voluntary and whether or not involving bankruptcy or
insolvency, and (iii) any other
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proceeding of any type or nature in which claims against the Company or any
Subsidiary Guarantor generally are determined, proven or paid.
"DISALLOWED POST-PETITION INTEREST/EXPENSE CLAIMS" means any
claim for interest on the Priority Notes (including accretion of original issue
discount and any applicable post-default rate) accruing after the commencement
of any Bankruptcy, Insolvency or Liquidation Proceeding at the rate (including
any applicable post-default rate) set forth in the Priority Notes or the
Priority Notes Agreement or for fees, expense reimbursements, indemnification or
other similar obligations arising or accruing under the Priority Notes Agreement
after the commencement of any Bankruptcy, Insolvency or Liquidation Proceeding,
if such claim is not allowed, allowable or enforceable in such Bankruptcy,
Insolvency or Liquidation Proceeding.
"DISCHARGE OF THE PRIORITY OBLIGATIONS" means that all
Priority Note Obligations and all Senior Claims (except indemnification
obligations which are then contingent and as to which no payment is then due and
no claim or demand has then been made) have been paid in full and in cash.
"FIRST SUPPLEMENTAL INDENTURE" means the First Supplemental
Indenture dated as of December 30, 1996, among the Company, the Subsidiary
Guarantors and ▇▇▇▇▇ Fargo Bank, N.A., as Trustee.
"FITZGERALDS BLACK HAWK" means Fitzgeralds Black Hawk Casino
located in Black Hawk, Colorado.
"PRIORITY NOTE OBLIGATIONS" means the obligations of the
Company to pay principal of (and premium, if any) and interest (including
accretion of original issue discount and any applicable post-default rate) on
the Priority Notes, all guaranties thereof made by any Subsidiary Guarantors,
and all obligations of the Company or any Subsidiary Guarantor for fees, expense
reimbursement, compensation, indemnification or other similar obligations at any
time arising or accruing under the Priority Notes Agreement.
"PRIORITY NOTES" means the Company's Priority Secured Notes
due December 31, 1998 outstanding pursuant to the Priority Notes Agreement and
all other instruments evidencing the indebtedness that is evidenced by such
Priority Secured Notes, as such Priority Secured Notes and instruments from time
to time may be amended.
"PRIORITY NOTES AGREEMENT" means the Note Purchase Agreement
dated as of December 30, 1996, among the Company, the Subsidiary Guarantors and
the purchasers listed on the signature pages thereto, as such agreement from
time to time may be amended.
"PRIORITY NOTES COLLATERAL" means all Collateral upon which a
Lien securing any of the Priority Note Obligations is held by the Trustee or
Collateral Agent.
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"PRIORITY NOTES COLLATERAL DOCUMENTS" means the Global
Amendment to Collateral Documents dated as of December 30, 1996, by and among
the Company and the then Subsidiary Guarantors and Trustee, all Collateral
Documents executed and delivered after delivery of the First Supplemental
Indenture and prior to Discharge of the Priority Obligations, and each other
instrument or agreement by which any of the Priority Note Obligations becomes
secured by any Lien granted to the Trustee or Collateral Agent.
"PRIORITY NOTES DEFAULT" means the failure to pay when due any
principal of or interest on the Priority Notes or any event upon the occurrence
of which one or more of the holders of Priority Notes are permitted (under the
terms of the Priority Notes Agreement) either to accelerate the maturity of the
Priority Notes or to direct the Trustee or Collateral Agent to foreclose upon or
enforce any Lien upon any Priority Notes Collateral and specifically includes
each "Event of Default," as that term is defined in the Priority Notes Agreement
as in effect on the date of the First Supplemental Indenture.
"SENIOR CLAIMS" means the Priority Note Obligations and
Disallowed Post-Petition Interest/Expense Claims.
"SUBORDINATED CLAIMS" means the principal of (and premium, if
any) and interest, including Contingent Interest, on the Notes and all other
obligations arising under the Notes and Subsidiary Guarantee.
2. SECTION 101 IS HEREBY FURTHER AMENDED TO MODIFY THE
FOLLOWING DEFINED TERMS TO READ IN THEIR ENTIRETIES AS FOLLOWS:
"COLLATERAL" means all property and interests in property now
owned or hereafter acquired by any Note Party in or upon which a Lien is granted
for the benefit of the Beneficiaries (whether directly or by way of assignment
of a Lien granted to the Company) under any of the Collateral Documents, which
Lien shall, until Discharge of the Priority Obligations, also serve the Priority
Note Obligations.
"COLLATERAL AGENT" means (i) First Interstate, as collateral
agent for itself and the Holders and, until Discharge of the Priority
Obligations, the Holders of Priority Note Obligations under the Collateral
Documents, or (ii) the "Collateral Agent" as defined in and under any
Intercreditor Agreement.
"COLLATERAL DOCUMENTS" means, collectively, (i) the Company
Accounts Pledge Agreement, the Company Pledge Agreement, the Company Security
Agreement, the Subsidiary Pledge Agreement, the Subsidiary Security Agreement,
the FLVI Mortgage, the FRI Mortgage (if any), the PLEC Mortgage, the PLEC Ship
Mortgage, and the Disbursement Agreements, and (ii) any other Mortgages, Ship
Mortgages, Accounts Pledge Agreements and other security documents entered into
by the Company or any Restricted Subsidiary to secure their respective
obligations under the Note Documents, in each case as amended from time to time,
including amendments pursuant to any Priority Notes Collateral Document.
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"EXCLUDED ASSETS" means:
(i) the leased portions of Fitzgeralds Las Vegas, unless
and until the consent of the related lessors to pledge the leases is obtained,
(ii) except to the extent such assets are covered by Exhibit
A to the FLVI Mortgages, the assets of FRI, including Fitzgeralds Reno, but only
for so long as such assets are subject to a Lien listed on Schedule 101B (or any
Permitted Lien under clause (g) of the definition of "Permitted Lien" with
respect to such Lien);
(iii) cash, deposit accounts and other cash equivalents,
including those derived from the operation of Gaming Equipment (as defined in
the Company Security Agreement or the Subsidiary Security Agreement) and related
food and beverage service, but excluding (A) those included in the Note Proceeds
Accounts, Note Proceeds Account Collateral or Asset Sale Account Collateral, (B)
proceeds, products, rents and issues of any Collateral (other than proceeds and
products of food, beverage and gift shop inventories), and (C) without
limitation of clause (B), all rights to payment and payments for hotel room
occupancy (and related reservations, tour and junket proceeds, and deposits for
convention and party reservations);
(iv) (A) any equipment subject to Liens listed on Schedule
101B securing Existing Indebtedness and (B) any newly acquired or leased assets
financed with Permitted FF&E Financing or Non-Recourse Indebtedness to the
extent that a Lien on any such assets is expressly prohibited by the terms of
such permitted FF&E Financing or Non-Recourse Indebtedness and the lender under
such Permitted FF&E Financing or Non-Recourse Indebtedness has not consented to
a Lien on such assets;
(v) any agreement with a third party, existing on the date
on which the relevant Collateral Document is required to be executed hereunder,
that prohibits the grant of a Lien on such agreement or any of the relevant
rights thereunder without the consent of such party or under which a consent to
such grant is otherwise required, which consent has not been obtained, except to
the extent rights under any such agreement are covered by Section 9-318 of the
relevant Uniform Commercial Code (or any successor provision);
(vi) any license, permit or other Governmental Approval that,
under the terms and conditions of such Governmental Approval or under Applicable
Law, cannot be subjected to a Lien in favor of the Company or the Collateral
Agent, as applicable, without the consent of the relevant Governmental
Authority, which consent has not been obtained;
(vii) Capital Stock of any Unrestricted Subsidiary; and
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(viii) In the event that a Subsidiary Guarantor Incurs
Permitted Black Hawk Indebtedness in the form of Non-Recourse Indebtedness to
acquire Main Street pursuant to the Main Street Option Agreement, Fitzgeralds
Black Hawk and the other assets, if any, of Main Street;
provided, however, that Excluded Assets shall not include the
proceeds, products, rents, issues, income and profits (collectively, the
"PROCEEDS") of the assets referred to in clause (i), (ii), (iv), (v), (vi) or
(vii) above to the extent such Proceeds do not constitute Excluded Assets
pursuant to clause (iii) above.
"PARI PASSU INDEBTEDNESS" means Indebtedness of the Company or
any Subsidiary Guarantor that (i) is not Subordinated Indebtedness, (ii) except
in the case of Permitted Construction Indebtedness, matures not before the
Stated Maturity, (iii) except in the case of Permitted Construction
Indebtedness, has an Average Life not shorter than that applicable to the Notes,
and (iv) if such Indebtedness is secured by any assets, (A) the Notes or the
Subsidiary Guarantee of such Subsidiary Guarantor, as the case may be, are
secured by a first Priority Lien on the same assets, and (B) the Lien securing
such Indebtedness is equal and ratable with the Lien securing the Notes or the
Subsidiary Guarantee, as applicable, pursuant to an Intercreditor Agreement;
provided that such Liens shall be subject and subordinate to Liens under the
Priority Notes Collateral Documents securing Priority Note Obligations.
"PERMITTED BLACK HAWK INDEBTEDNESS" means, in the alternative,
either (x) Pari Passu Indebtedness or Subordinated Indebtedness of the Company
(and Pari Passu Indebtedness or Subordinated Indebtedness of any Subsidiary
Guarantor in the form of Guarantees of such Pari Passu Indebtedness or
Subordinated Indebtedness of the Company, as applicable) or (y) Non-Recourse
Indebtedness of any Subsidiary Guarantor, in each case in respect of the
purchase price payable by the Company to exercise its rights to acquire
membership interests in Main Street pursuant to the Main Street Option Agreement
(including Indebtedness of Main Street outstanding at the time of such
acquisition), provided that such Indebtedness does not exceed in aggregate
principal amount (including any Refinancing Indebtedness with respect to such
Indebtedness and together with any Indebtedness of Main Street outstanding at
the time of such incurrence) the lesser of (a) $65,000,000 and (b) in the case
of Pari Passu Indebtedness only, 75% of the higher of (i) such purchase price
and (ii) the Fair Market Value of the membership interests so purchased, as set
forth in an appraisal from a national or regional independent investment banking
firm with recognized experience in the gaming industry, which appraisal shall
have been delivered to the Trustee; provided, however, that the Trustee shall
have no duty to review or examine such appraisal.
"PERMITTED INTERCOMPANY LOAN" means any loan made by the
Company to any Restricted Subsidiary that (i) is evidenced by a Permitted
Intercompany Note, (ii) provides for interest payments at the same rate and at
the same times as the Notes and the principal amount of and all accrued interest
on such loan is due and payable on demand, (iii) ranks at least pari passu in
right of payment with all other Indebtedness of such Restricted Subsidiary,
except as contemplated by the Company Pledge Agreement, (iv) except as provided
herein, is secured by a Lien on substantially all assets of such Restricted
Subsidiary other than Negative Pledge
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Assets, which Lien shall be (a) of first priority or, in the case of a
Restricted Subsidiary that is a Subsidiary Guarantor, which Lien shall be
subject only to a prior Lien (or, until Discharge of the Priority Obligations,
junior Lien) on the same assets securing the Subsidiary Guarantee, and (b) equal
and ratable with any other Liens securing Indebtedness on the same assets
pursuant to an Intercreditor Agreement, and (v) together with the Permitted
Intercompany Note and any related Collateral and Liens, is pledged to the
Collateral Agent for the benefit of the Holders and, until Discharge of the
Priority Obligations, the Holders of Priority Note Obligations.
"PERMITTED LIENS" means any of the following:
(a) Liens arising by reason of any judgment, decree or order
of any court only to the extent for an amount and for a period not resulting in
an Event of Default with respect thereto and so long as such Lien is being
contested in good faith and is adequately bonded, and any appropriate legal
proceedings that may have been duly initiated for the review of such judgment,
decree or order shall not have been finally adversely terminated or the period
within which such proceedings may be initiated shall not have expired;
(b) Security for the performance of bids, tenders, trade,
contracts (other than contracts for the payment of money) or leases, surety
bonds, performance bonds and other obligations of a like nature Incurred in the
ordinary course of business or appeal bonds, and public and statutory bonds;
(c) Liens (other than Liens arising under ERISA) for taxes,
assessments or other governmental charges not yet due or which are being
contested in good faith and by appropriate proceedings by the Company if
adequate reserves with respect thereto are maintained on the books of the
Company in accordance with GAAP;
(d) Liens of carriers, warehouse men, mechanics, landlords,
material men, repairmen or other like Liens arising by operation of law in the
ordinary course of business (other than Liens arising under ERISA) and
consistent with industry practices and Liens on deposits made to obtain the
release of such Liens if (i) the underlying obligations are not overdue for a
period of more than 30 days or (ii) such Liens are being contested in good faith
and by appropriate proceedings by the Company and adequate reserves with respect
thereto are maintained on the books of the Company in accordance with GAAP;
(e) Easements, rights of way, zoning and similar restrictions
and other similar encumbrances or title defects incurred in the ordinary course
of business and consistent with industry practices that, in the aggregate, are
not substantial in amount, and that do not in any case materially detract from
the value of the property subject thereto (as such property is used by the
Company or a Subsidiary) or interfere with the ordinary conduct of the business
of the Company or any of its Subsidiaries; provided that any such Liens are not
incurred in connection with any borrowing of money or any commitment to loan any
money or to extend any credit;
(f) Pledges or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security legislation;
(g) Liens, incurred in connection with the Incurrence of
Refinancing Indebtedness in compliance with this Indenture with respect to
Indebtedness secured by Liens,
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provided (i) such Liens do not extend to any additional property or assets, (ii)
if the Liens securing the Indebtedness being refinanced, retired or amended by
such Refinancing Indebtedness was subordinated to or pari passu with the Liens
securing the Notes, the Subsidiary Guarantee or any Permitted Intercompany Loan,
as applicable, such new Liens are subordinated to or pari passu with such Liens
to the same extent, and any related subordination or intercreditor agreement is
confirmed, and (iii) such Liens are no more adverse to the interests of Holders
than the Liens replaced or extended thereby;
(h) Such Liens and items described in paragraph (e) above in
existence and outstanding on the Issue Date as are disclosed in the policies of
title insurance issued on or about the Issue Date;
(i) Liens that secure Indebtedness of any Person existing at
the time such Person becomes a Subsidiary of the Company or is merged or
consolidated into or with the Company or a Subsidiary of the Company, provided
that such Liens do not extend to or cover any other property or assets and were
not put in place in anticipation of such acquisition;
(j) Liens in favor of the Collateral Agent (including, in the
case of Liens securing Permitted Intercompany Loans, as collateral agent for the
Company) under the Collateral Documents;
(k) Liens in favor of the Company or any Subsidiary
Guarantor, which are assigned to the Trustee as Collateral;
(l) Liens of the Company or its Restricted Subsidiaries
in existence on the Issue Date and set forth on Schedule 101B;
(m) with respect to any vessel included in the Collateral,
maritime Liens for crew's wages, general average, salvage and damages arising
out of maritime torts permitted to exist pursuant to Section 4.6 of the related
Ship Mortgage;
(n) Liens that secure Pari Passu Indebtedness or Subordinated
Indebtedness, other than Non-Recourse Indebtedness, (a) permitted to be Incurred
under clauses (d), (e), (f) (if to refinance Existing Indebtedness of FRI) and
(h) of Section 1012 (or constituting Refinancing Indebtedness with respect to
such Indebtedness), which Liens may cover the assets financed with such
Indebtedness as well as other Collateral;
(o) Liens that secure Non-Recourse Indebtedness permitted to
be Incurred pursuant to clauses (d), (e) and (h) of Section 1012 (or
constituting Refinancing Indebtedness with respect to such Indebtedness), which
Liens under shall attach only to the assets of the Restricted Subsidiary
Incurring such Indebtedness;
(p) Liens that secure Permitted FF&E Financing permitted to be
Incurred under clause (c) of Section 1012, which Liens shall not attach to any
assets other than the assets financed thereby; and
(q) Liens granted to the Trustee or Collateral Agent to
secure the Priority Note Obligations.
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"RESTRICTED PAYMENT" means, with respect to any Person,
(a) the declaration or payment of any dividend or other
distribution in respect of Equity Interests of such Person (including the
Preferred Stock) or any Subsidiary of such Person (other than dividends or
distributions payable in Equity Interests (other than Disqualified Capital
Stock) of the Company, dividends or distributions payable to the Company or any
Wholly Owned Subsidiary of the Company that is a Subsidiary Guarantor, and pro
rata dividends or distributions payable to a minority stockholder of a
Subsidiary of the Company);
(b) any payment on account of the purchase, redemption or
other acquisition or retirement for value of Equity Interests of such Person or
any Subsidiary of such Person other than any such Equity Interests owned by the
Company or any Subsidiary Guarantor, and other than a redemption of the
Preferred Stock required as a result of an order of any Gaming Authority
(provided no Default or Event of Default then exists);
(c) any purchase, redemption, or other acquisition or
retirement for value of, any payment in respect of any amendment of the terms of
or any defeasance of, any Subordinated Indebtedness or Senior Indebtedness
(unless Notes are purchased, redeemed or otherwise acquired or retired for value
on a pro rata basis with such Senior Indebtedness and except for (i) any such
purchase, redemption, acquisition, retirement or payment of Priority Note
Obligations, (ii) any Refinancing of such Senior Indebtedness (other than the
Priority Notes) with Refinancing Indebtedness and (iii) the reduction of amounts
outstanding under revolving lines of credit), directly or indirectly, by such
Person or a Restricted Subsidiary of such Person prior to the scheduled
maturity, any scheduled repayment of principal, or scheduled sinking fund
payment, as the case may be, of such Indebtedness; and
(d) any Restricted Investment by such Person.
3. SECTION 201 IS HEREBY AMENDED TO ADD A NEW PARAGRAPH AT
THE END THEREOF TO READ IN ITS ENTIRETY AS FOLLOWS:
Each Note Unit Certificate and Note Certificate issued by the
Trustee after the date of the First Supplemental Indenture and prior to
Discharge of the Priority Obligations shall include the following legend:
The principal of (and premium, if any) and interest,
including Contingent Interest, on the indebtedness
represented hereby and all other obligations
hereunder and the Subsidiary Guarantee are
subordinated as set forth in the First Supplemental
Indenture dated as of December 30, 1996.
In lieu of physical presentation of the Note Unit Certificate
or Note Certificates to the Trustee for notation of such legend, the Trustee may
instruct any depository to make the
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appropriate notation of such legend with respect to Note Unit Certificates or
Note Certificates that are held in book entry form.
4. SECTION 501 IS HEREBY AMENDED TO MODIFY PARAGRAPH (e) TO
READ IN ITS ENTIRETY AS FOLLOWS:
(e) default under any indenture, loan agreement, mortgage,
bond, promissory note or other agreement or instrument (other than any Note
Document), under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any Restricted
Subsidiary, or the payment of which is Guaranteed by the Company or any
Restricted Subsidiary, whether such Indebtedness exists on the Issue Date or is
created or Incurred thereafter, and such default is either (i) caused by a
failure to pay when due principal or interest on such Indebtedness within any
grace period applicable thereto (a "PAYMENT DEFAULT") or (ii) results in or
requires the prepayment, repurchase, redemption, or defeasance of any such
Indebtedness prior to its express maturity, or requires that the Company or any
Restricted Subsidiary offer to take any of the foregoing actions (any such
event, an "ACCELERATION") and, in each case, either (i) such Indebtedness
consists of Priority Note Obligations or (ii) the principal amount of such
Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or with respect to which there has
been an Acceleration, aggregates $5,000,000 or more; or
5. SECTION 503 IS HEREBY AMENDED TO ADD A NEW PARAGRAPH AT
THE END THEREOF TO READ IN ITS ENTIRETY AS FOLLOWS:
Subject to the provisions of Article Six, prior to Discharge
of the Priority Obligations, the Trustee shall foreclose on the Collateral and
otherwise enforce its Liens on the Collateral, or direct the Collateral Agent to
foreclose upon the Collateral and enforce its Liens on the Collateral, in
accordance with any instructions given by Holders of a majority in principal
amount of Outstanding Notes, by Act of such Holders delivered to the Company and
the Trustee; provided, however, that if the Trustee receives written notice
purporting to be signed by the holders of a majority in principal amount of
outstanding Priority Notes (which notice shall state the outstanding principal
amount of the Priority Notes and the outstanding principal amount of the
Priority Notes held by the signers of such notice and shall contain an express
representation that the signers are holders of Priority Notes and are authorized
to give such notice), stating that the Priority Notes are due and payable in
full (whether at maturity, by acceleration or otherwise) and have not been paid
in full and that such holders direct the Trustee to foreclose upon or enforce
the Liens upon the Priority Notes Collateral, then the Trustee shall commence
and prosecute such foreclosure and enforcement, or direct the Collateral Agent
to do so. In commencing such foreclosure and enforcement, the Trustee may act in
accordance with instructions given by Holders of a majority in principal amount
of Outstanding Notes, by act of such Holders delivered to the Trustee and
neither the Trustee nor Collateral Agent shall have any liability whatsoever to
the holders of the Priority Notes as a result of any action in accordance with
instructions given by Holders of a majority in principal amount of the
Outstanding Notes; provided, however, that neither the Trustee nor the
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Collateral Agent shall be entitled to rely on, and shall not be bound by,
instructions from the Holders of a majority in principal amount of the
Outstanding Notes which direct the Trustee or the Collateral Agent to terminate
any foreclosure or other enforcement proceeding or which would unreasonably
delay the prosecution thereof. The Trustee or Collateral Agent shall be under no
obligation to take any action or to exercise any remedies hereunder unless the
Holders of the Outstanding Notes or the holders of the Priority Notes shall have
provided the Trustee or Collateral Agent written instructions and
indemnification to the satisfaction of the Trustee or Collateral Agent for fees,
expenses, counsel fees and any liabilities which they may incur. All proceeds of
such foreclosure and enforcement shall be applied in the order of priority set
forth in Section 506.
6. SECTION 506 IS HEREBY AMENDED TO MODIFY CLAUSE "THIRD"
THEREOF TO READ IN ITS ENTIRETY AS FOLLOWS:
THIRD: To the payment, first and on a priority basis, of all
Priority Note Obligations and Senior Claims and, second, after Discharge of the
Priority Obligations, to the payment of the amounts then due and unpaid upon the
Notes for principal (and premium, if any) and interest, in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Notes for principal (and premium, if any) and interest;
7. SECTION 512 IS HEREBY AMENDED TO ADD A NEW CLAUSE (c) TO
READ IN ITS ENTIRETY AS FOLLOWS (AND TO MOVE THE WORD "and" FROM THE END OF
CLAUSE (a) TO THE END OF CLAUSE (b)):
(c) The Trustee shall foreclose upon and enforce the Priority
Notes Collateral as provided in the last paragraph of Section 503.
8. SECTION 902 IS HEREBY AMENDED TO ADD A NEW CLAUSE (iii) AT
THE END OF PARAGRAPH (a) TO READ IN ITS ENTIRETY AS FOLLOWS (AND TO MOVE THE
WORD "and" FROM THE END OF SUBCLAUSE (F) OF CLAUSE (i) OF PARAGRAPH (a) TO THE
END OF CLAUSE (ii) OF PARAGRAPH (a)):
(iii) until Discharge of the Priority Obligations, no such
supplemental indenture shall, without the written consent of the holders of at
least 66 2/3% in principal amount of outstanding Priority Notes (pursuant to a
written agreement executed and delivered by them, and all such written
agreements shall be binding upon and may be enforced against all other holders
of Senior Claims, without any requirement that such other holders receive notice
thereof or give consent thereto), amend, qualify, negate, discharge or limit the
effect of any of the amendments to this Indenture made pursuant to the First
Supplemental Indenture (other than those set forth in paragraph (b) of Section
1702) or any Lien securing Priority Note Obligations.
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9. SECTION 1012 IS HEREBY AMENDED TO MODIFY CLAUSE (h) AND
TO ADD CLAUSE (i) TO READ IN THEIR ENTIRETIES AS FOLLOWS:
(h) The Company may Incur Pari Passu Indebtedness or
Subordinated Indebtedness (and the Subsidiary Guarantors may Incur Pari Passu
Indebtedness or Subordinated Indebtedness in the form of Guarantees of such Pari
Passu Indebtedness or Subordinated Indebtedness of the Company, as applicable)
and any Subsidiary Guarantor may Incur Non-Recourse Indebtedness, in an
aggregate amount for all such Indebtedness (including any related Refinancing
Indebtedness) at any time outstanding not to exceed $20,000,000, less the
principal amount (or, if less, the accreted value) of Priority Notes then
outstanding.
(i) The Company and the Restricted Subsidiaries may Incur the
Priority Note Obligations.
10. SECTION 1014 IS HEREBY AMENDED TO MODIFY CLAUSES (a), (e)
AND (h) AND TO ADD A NEW CLAUSE (i) TO READ IN THEIR ENTIRETIES AS FOLLOWS:
(a) restrictions imposed by the Note Documents, the Priority
Note Agreement, the Priority Notes or the Priority Notes Collateral Documents.
* * *
(e) any such contractual encumbrance imposed by or in
connection with the Incurrence of any Permitted FF&E Financing or working
capital Indebtedness permitted pursuant to clause (c) of Section 1012, provided
such encumbrance does not have the effect of restricting the payment of
dividends to the Company or any Restricted Subsidiary or the payment of
Indebtedness owed to the Company or any Subsidiary Guarantor or reducing the
amount of any such dividends or payments,
* * *
(h) subject only to the consent of the Holders of a majority
in principal amount of the Outstanding Notes, any such contractual encumbrances
imposed on Main Street in connection with the acquisition thereof with Permitted
Black Hawk Indebtedness in the form of Non-Recourse Indebtedness, and
(i) replacements of restrictions imposed pursuant to clauses
(a) through (h) that are no more restrictive than those being replaced.
11. SECTION 1016 IS HEREBY AMENDED TO MODIFY SUBCLAUSE (A) OF
PARAGRAPH (a) TO READ IN ITS ENTIRETY AS FOLLOWS:
(A) within 210 days after the date of the Asset Sale (the
"REINVESTMENT PERIOD"), the Net Cash Proceeds therefrom are either (1)
reinvested in assets or property directly related to a Related Business of the
Company or such Restricted Subsidiary (or the
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Company or such Restricted Subsidiary shall have entered into a binding
obligation to make such an investment), (2) applied to pay Priority Note
Obligations, or (3) in accordance with the procedures set forth in this Section
1016 and Section 1110, applied, pursuant to an offer (a "ASSET SALE PURCHASE
OFFER") to purchase from the Holders, to the repurchase for cash from Holders
accepting such Asset Sale Purchase Offer, of the maximum principal amount of
Notes that may be purchased out of that portion, if any, of the Net Cash
Proceeds of such Asset Sale that is not reinvested pursuant to clause (1) or
applied pursuant to clause (2) within the Reinvestment Period ("EXCESS
PROCEEDS"), at a purchase price of 100% of principal amount, plus accrued
interest to the Purchase Date (the "ASSET SALE PURCHASE PRICE"),
12. SECTION 1017 IS HEREBY AMENDED TO MODIFY PARAGRAPH (b) TO
READ IN ITS ENTIRETY AS FOLLOWS:
(b) Notwithstanding the foregoing, (i) no Liens referred to in
clauses (n) through (o) of the definition of Permitted Liens may attach to any
Excluded Assets (other than Liens granted on Fitzgeralds Black Hawk and the
other assets of Main Street in connection with the incurrence of Permitted Black
Hawk Indebtedness which is Non-Recourse Indebtedness), and (ii) no Lien referred
to in clauses (n) through (p) of the definition of Permitted Lien may attach to
any assets of FNYI or FAMI. Without limitation of the other provisions of the
Note Documents, this subsection (b) shall apply to the assets referred to in
this subsection notwithstanding any transfer thereof to any other Restricted
Subsidiary or the Company after the Issue Date.
13. SECTION 1020 IS HEREBY AMENDED TO MODIFY SUBCLAUSES (A),
(B) AND (E) OF CLAUSE (iii) OF PARAGRAPH (a) TO READ IN THEIR ENTIRETIES AS
FOLLOWS:
(A) in the case of the Company, an Accounts Pledge Agreement
securing the Secured Obligations of the Company and, until Discharge of the
Priority Obligations, the Priority Note Obligations with a first priority Lien
in the Asset Sale Account, the Net Cash Proceeds deposited therein, and all
proceeds thereof (including all Cash Equivalents in which such Net Cash Proceeds
or proceeds may from time to time be invested (collectively, the "ASSET SALE
ACCOUNT COLLATERAL");
(B) in the case of a Subsidiary Guarantor, (1) an Accounts
Pledge Agreement securing the Subsidiary Guarantee of and all Permitted
Intercompany Loans from time to time made to such Person and, until Discharge of
the Priority Obligations, the Priority Note Obligations with priority Liens in
the Asset Sale Account Collateral, and (2) an amendment to Schedule B-2 of the
Company Pledge Agreement and the related financing statements, adding the
Accounts Pledge Agreement referred to in (1) to the Collateral listed therein;
* * *
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(E) an Opinion of Counsel to the effect that (1) each Accounts
Pledge Agreement and other Collateral Document required by this Section 1020(a)
is the legal, valid and binding obligation of the Note Party thereto and creates
a perfected security interest in the Collateral thereunder, as security for the
Secured Obligations, any Permitted Intercompany Loans or Permitted Intercompany
Notes and, until Discharge of the Priority Obligations, the Priority Note
Obligations, in the order of priority set forth in Section 1202(b), and (2) the
Company has taken all steps required to be taken under Sections 1016(c) and
1202(c) and this Section 1020(a).
14. SECTION 1020 IS HEREBY FURTHER AMENDED TO MODIFY SUBCLAUSE
(A) OF CLAUSE (ii) OF PARAGRAPH (c) TO READ IN ITS ENTIRETY AS FOLLOWS:
(A) such amendments to the Subsidiary Security Agreement or
Subsidiary Pledge Agreement and such Subsidiary Mortgages, Subsidiary Ship
Mortgages, financing statements, notices of security interest, assignments or
other Collateral Documents executed by such Subsidiary, as may be reasonably
required to create first priority and second priority Liens in favor of the
Collateral Agent on behalf of the Beneficiaries and the Company, respectively,
on all Additional Collateral, securing the Secured Obligations of such
Subsidiary under the Subsidiary Guarantee (if any), the Permitted Intercompany
Loans and, until Discharge of the Priority Obligations, the Priority Note
Obligations;
15. SECTION 1020 IS HEREBY FURTHER AMENDED TO MODIFY SUBCLAUSE
(A) OF CLAUSE (ii) OF PARAGRAPH (d) TO READ IN ITS ENTIRELY AS FOLLOWS:
(A) such amendments to existing Collateral Documents and
additional Mortgages, Ship Mortgages or other Collateral Documents, executed by
the Company, as may be reasonably required to create first priority Liens in
favor of the Collateral Agent on behalf of the Beneficiaries on all Additional
Collateral, securing the Secured Obligations of the Company and, until Discharge
of the Priority Obligations, the Priority Note Obligations;
16. SECTION 1201 IS HEREBY AMENDED TO ADD A NEW PARAGRAPH
(d) TO READ IN ITS ENTIRETY AS FOLLOWS:
(d) Until Discharge of the Priority Obligations, the Trustee
shall act as Collateral Agent for the holders of Priority Note Obligations, as
well as for the Beneficiaries, and in such capacity shall (i) enter into and
accept the Priority Notes Collateral Documents, (ii) accept or enter into any
additional Collateral Documents which the Company or any Restricted Subsidiary
may be required to deliver only if such Collateral Documents state that, until
Discharge of the Priority Obligations, the Priority Note Obligations shall be
secured thereby and the Collateral Agent shall hold the Priority Notes
Collateral both for the holders of the Priority Notes and other Priority Note
Obligations and for the Beneficiaries, and (iii) hold and enforce the Liens
created by the Priority Notes Collateral Documents for the benefit of both
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the holders of the Priority Notes and other Priority Note Obligations and the
Beneficiaries, subject to the provisions of this Indenture.
17. SECTION 1202 IS HEREBY AMENDED TO MODIFY PARAGRAPHS (a),
(b) AND (d) TO READ IN THEIR ENTIRETIES AS FOLLOWS:
(a) The Company shall furnish to the Trustee:
(i) On the Issue Date, an Opinion of Counsel stating
that, in the opinion of such counsel, all recordings, filings and other
actions contemplated by such Collateral Documents necessary to make
effective or perfect the Lien have been taken, reciting such actions;
(ii) On or prior to each anniversary of the date
hereof, an Opinion of Counsel, dated as of such date, either (A)
stating that, in the opinion of such counsel, such action has been
taken with respect to the recording, registering, filing, re-recording,
re-registering and re-filing of the Collateral Documents, or financing
statements, continuation statements or other instruments of further
assurance, as is necessary to maintain the Liens of the Collateral
Documents to the extent required hereby, until the next such
anniversary, and reciting the details of such action, or (B) stating
that, in the opinion of such counsel, no such action is necessary to
maintain such Liens; and
(iii) As soon as practicable, and in any event prior
to January 31, 1997, an Opinion of Counsel stating that, in the opinion
of such counsel, all amendments and modifications to the Collateral
Documents, and all recordings, filings and other actions necessary to
make effective or perfect the Lien on the Collateral in favor of the
holders of the Priority Obligations have been taken, reciting such
amendments, modifications and actions.
(b) Notwithstanding any provision to the contrary in this
Indenture or any of the Collateral Documents, until Discharge of the Priority
Obligations, (i) all Liens held by the Trustee or Collateral Agent as security
both for Priority Note Obligations and for Secured Obligations shall secure
Priority Note Obligations in preference and priority over Secured Obligations,
(ii) all Liens held by the Trustee or Collateral Agent upon any property of any
Subsidiary Guarantor as security for Priority Note Obligations and also as
security for Permitted Intercompany Notes or Permitted Intercompany Loans and
for the Subsidiary Guarantee and other Secured Obligations shall secure, in
order of preference and priority, first, the Priority Note Obligations, second,
such Permitted Intercompany Notes and Permitted Intercompany Loans, and third,
the Subsidiary Guarantee and such other Secured Obligations, and (iii) all
proceeds received by the Collateral Agent under any policy of casualty insurance
or title insurance covering any Collateral shall be applied in the order of
priority set forth in clause (ii) herein.
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The Company, Subsidiary Guarantors, Trustee and Holders
acknowledge and agree that the purpose and intent of the foregoing provision is
that, until Discharge of the Priority Obligations:
(i) All Liens held by the Trustee or Collateral Agent
pursuant to the Collateral Documents shall secure the Priority Note Obligations,
and, to the extent a grant of such security may be required under the laws of
any jurisdiction in which any Collateral is located, the Company and the
Subsidiary Guarantors hereby grant to the Trustee, as Collateral Agent, a
security interest in and Lien upon all of the Collateral as security for the
payment when due of each and all of the Priority Note Obligations upon the terms
and conditions set forth in the Collateral Documents;
(ii) All Liens held by the Trustee or Collateral Agent as
security for Priority Note Obligations shall secure the Priority Note
Obligations in preference and priority over the Notes, the Subsidiary Guarantees
and all other Secured Obligations;
(iii) All Liens granted by any Subsidiary Guarantor pursuant
to the Collateral Documents upon any property of such Subsidiary Guarantor,
whether real, personal or mixed, as security both for Permitted Intercompany
Loans or Permitted Intercompany Notes and as security for a Subsidiary Guarantee
or other Secured Obligations shall be (and hereby are) reprioritized so that
such Liens shall be (and are hereby declared and agreed to be) first, prior and
senior Liens insofar as they secure such Permitted Intercompany Loans or
Permitted Intercompany Notes and junior Liens (subject only to the provisions of
clause (ii) above and to such first, prior and senior Liens) insofar as they
secure such Subsidiary Guarantee and other Secured Obligations; and
(iv) The Trustee or Collateral Agent shall hold and be
entitled to enforce all such Permitted Intercompany Loans and Permitted
Intercompany Notes, as secured by such reprioritized first, prior and senior
Liens, as part of the Priority Notes Collateral and as first and prior
collateral security for the Priority Note Obligations.
The Company, Subsidiary Guarantors and Trustee agree to
execute and deliver (if required, in duly attested and recordable form) any and
all amendments and supplements to the Collateral Documents that may reasonably
be requested by any holder of Priority Notes in order to further assure that the
foregoing purpose and intent are reflected in any instrument or agreement that
may be required or appropriate under the laws of any jurisdiction in which any
Collateral is located or to reflect the agreements herein set forth in a
document filed for public record or otherwise to perfect and prioritize any Lien
held by the Trustee or Collateral Agent as security for Priority Note
Obligations.
Subject to the foregoing and except as otherwise expressly
provided herein and the other Note Documents, at all times while any Notes
remain Outstanding, (i) the Secured Obligations of the Company are required to
be secured by a first priority, perfected Lien on all of the following (not
including Excluded Assets):
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(A) the Company's Equity Interests in all
present and future Restricted Subsidiaries held by the Company, substantially on
the terms set forth in and contemplated by the Company Pledge Agreement;
(B) all existing and later created Permitted
Intercompany Loan Collateral, substantially on the terms set forth in and
contemplated by the Company Pledge Agreement;
(C) the Note Proceeds Account Collateral,
substantially on the terms set forth in and contemplated by the Company Accounts
Pledge Agreement;
(D) under the circumstances described in Section
1020(a) with respect to the Company, all Asset Sale Account Collateral,
substantially on the terms set forth in and contemplated by the Company Accounts
Pledge Agreement; and
(E) substantially all of the Company's present
and future assets not referred to in (A), (B), (C) or (D), including real estate
(including leasehold properties), fixtures and personal property, substantially
on the terms set forth in and contemplated by the Company Security Agreement, a
Mortgage, a Ship Mortgage or other relevant Collateral Documents covering
Collateral of the same type.
(ii) The Subsidiary Guarantee of each Subsidiary Guarantor
shall be secured by first priority perfected Liens on all of the following (not
including Excluded Assets):
(A) all Equity Interests in other present and
future Restricted Subsidiaries held by such Subsidiary Guarantor, substantially
on the terms set forth in and contemplated by the Subsidiary Pledge Agreement;
(B) in the case of PLEC and each other
Subsidiary Guarantor that may from time to time acquire a vessel eligible for
registration with the US Coast Guard, the Fitzgeralds Tunica Gaming Vessel or
such other vessel, as the case may be, substantially on the terms set forth in
and contemplated by the PLEC Ship Mortgage or any other Subsidiary Ship
Mortgage;
(C) under the circumstances described in Section
1020(a) with respect to such Subsidiary Guarantor, all Asset Sale Account
Collateral, substantially on the terms set forth in and contemplated by an
Accounts Pledge Agreement; and
(D) substantially all present and future assets
of such Subsidiary not referred to in (A), (B) or (C), including real estate
(including leasehold properties), fixtures and personal property, in each case
substantially on the terms set forth in and contemplated by the Subsidiary
Security Agreement, a Subsidiary Mortgage or other relevant Collateral Documents
covering Collateral of the same type.
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(iii) All Permitted Intercompany Loans to present and future
Restricted Subsidiaries shall be secured by first (or, in the case of Permitted
Intercompany Loans to any Subsidiary Guarantor, second) priority perfected Liens
on substantially all assets of such Restricted Subsidiaries, other than Excluded
Assets, in each case substantially on the terms set forth in and contemplated by
the relevant Collateral Documents referred to in Section 1202(b)(ii).
Without limitation, if any assets of Fitzgeralds Las Vegas or
Fitzgeralds Reno cease to constitute Excluded Assets at any time, the Company or
the relevant Restricted Subsidiary shall take such steps are may be required to
grant the Liens contemplated by clauses (ii) and (ii) of this subsection (b) in
accordance with subsection (d) below.
Notwithstanding the foregoing, (i) neither the Company nor any
Restricted Subsidiary shall be required to ▇▇▇▇▇ ▇ ▇▇▇▇, as security for
Priority Note Obligations, upon the capital stock of any Subsidiary of the
Company which holds, or which owns a Subsidiary which holds, a Gaming License
issued by a Gaming Authority in the State of Nevada or in the State of
Mississippi, unless and until all such Gaming Authorities in such State have
approved the grant of a Lien upon such capital stock as security for Priority
Note Obligations, (ii) any provision of this Section 1202(b) or any Priority
Notes Collateral Documents pursuant to which Priority Note Obligations would
(but for this clause (ii)) become secured by any such capital stock shall become
effective only if and when such approval is granted, and (iii) such provision
shall become effective, automatically, unconditionally and irrevocably and
without necessity for any further act or deed, immediately when such approval is
granted in such State. The Company will file appropriate applications for all
such approvals no later than January 10, 1997, will diligently prosecute such
applications and will use its best efforts to obtain such approvals in
accordance with gaming laws and practice and as promptly as practicable.
* * *
(d) If, at any time after the Issue Date, pursuant to
subsection (b) of this Section 1202 or otherwise, Liens are required to be
created on (i) assets acquired after the Issue Date (including assets acquired
in connection with an Asset Sale), (ii) assets that previously constituted
Excluded Assets, (iii) assets or Capital Stock of a Person that was not
previously a Restricted Subsidiary or Significant Restricted Subsidiary or that
did not have outstanding any Permitted Affiliate Loans, or (iv) any other assets
not previously subject to a Lien securing the Secured Obligations and, until
Discharge of the Priority Obligations, the Priority Note Obligations, the
relevant Note Party shall take all necessary steps toward the creation of such
Liens within 10 days after the acquisition of such assets or the date on which
such assets first ceased to constitute Excluded Assets or such Person first
constituted a Restricted Subsidiary or Significant Restricted Subsidiary or
first incurred such Permitted Affiliate Loan, or the date on which such Liens
are first required to exist hereunder, as applicable. With respect to assets
referred to in clause (iv)(B) of the definition of "Excluded Assets" over which
a lien may be granted in favor of the Collateral Agent, if requested by the
Company and upon receipt of an Officer's Certificate from the Company certifying
that no Default or Event of Default has occurred and is continuing, the
Collateral Agent will execute
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and deliver to the lender under the Permitted FF&E Financing or Non-Recourse
Indebtedness, as the case may be, a subordination agreement, in form and
substance satisfactory to the Collateral Agent, subordinating the lien in favor
of the Collateral Agent in such assets, in order of priority, to the lien in
favor of such lender.
18. SECTION 1203 IS HEREBY AMENDED TO MODIFY THE FIRST
PARAGRAPH TO READ IN ITS ENTIRETY AS FOLLOWS:
The Company and the Collateral Agent may amend any Collateral
Document, and the Company and such of the Trustee and Collateral Agent as may be
a party thereto may amend any other Note Document (other than this Indenture and
the Notes), without notice to or the consent of any Holder or any holder of
Priority Notes.
19. SECTION 1204 IS HEREBY AMENDED TO MODIFY PARAGRAPH (a) TO
READ IN ITS ENTIRETY AS FOLLOWS:
(a) Except as otherewise provided in Section 902 or in the
other Note Documents, with the written consent of Holders of at least a majority
in principal amount of the Outstanding Notes, by Act of the Holders delivered to
the Trustee (but without notice to or the consent of any holders of Priority
Notes, except as provided in Section 902), any Note Party may enter into, when
authorized by a Board Resolution, and the Trustee and Collateral Agent may enter
into or consent to, any amendment of any Collateral Document or other Note
Document (other than this Indenture and the Notes), without further notice to
any Holder.
20. SECTION 1207 IS HEREBY AMENDED TO MODIFY PARAGRAPH (a) TO
READ IN ITS ENTIRETY AS FOLLOWS:
(a) If (i) each Obligor delivers an Officers' Certificate
certifying that all of its obligations under this Indenture have been
indefeasibly satisfied and discharged by complying with the provisions of
Article Four or Fourteen hereof or (ii) all Outstanding Notes issued under this
Indenture shall have been surrendered to the Trustee for cancellation, and if
the Trustee receives evidence reasonably satisfactory to it that there has been
a Discharge of the Priority Obligations and that all Secured Obligations have
been paid in full, the Collateral Agent shall no longer be deemed to hold the
Lien in the Collateral for the benefit of the Beneficiaries and the holders of
Priority Notes.
21. SECTION 1208 IS HEREBY AMENDED TO MODIFY CLAUSE (ii)
OF PARAGRAPH (a) TO READ IN ITS ENTIRETY AS FOLLOWS:
(ii) take all steps the Collateral Agent is entitled to take
under the relevant Collateral Documents for the protection of the Collateral or
its priority (including by discharging or paying Liens and claims the Collateral
Agent is entitled to discharge or pay from funds available to the Collateral
Agent therefor), provided the Collateral Agent has received notice of facts
indicating that such steps are required for the protection of the Collateral or
such Lien or its priority, whether in the Opinion of Counsel required by Section
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1202(a), pursuant to any requirement of the Collateral Documents to give such
notice, or otherwise.
22. SECTION 1309 IS HEREBY AMENDED TO ADD A NEW PARAGRAPH AT
THE END THEREOF TO READ IN ITS ENTIRETY AS FOLLOWS:
Notwithstanding anything contained herein to the contrary, in
the event that a Subsidiary Guarantor acquires Main Street pursuant to the Main
Street Option Agreement with Permitted Black Hawk Indebtedness in the form of
Non-Recourse Indebtedness (for which only Main Street is liable), the Subsidiary
Guarantee of Main Street shall provide that it will not become enforceable
unless and until the lender of such Permitted Black Hawk Indebtedness exercises
any remedy available to it under the agreements governing such Permitted Black
Hawk Indebtedness for the acceleration or collection of such Permitted Black
Hawk Indebtedness or for the foreclosure or any other enforcement of any Lien
governing such Permitted Black Hawk Indebtedness.
23. A NEW ARTICLE SIXTEEN IS HEREBY ADDED TO READ IN ITS
ENTIRETY AS FOLLOWS:
ARTICLE SIXTEEN
SUBORDINATION OF NOTES TO PRIORITY NOTES
SECTION 1601. SUBORDINATION.
The Company, each Subsidiary Guarantor and each Holder hereby
covenant and agree, for the benefit of each present and future holder of any
Senior Claims, that the Subordinated Claims are and shall be postponed,
subordinated and junior in right of payment to the prior payment in full of all
Senior Claims, on the terms and conditions set forth in this Article Sixteen.
SECTION 1602. PAYMENT.
Until Discharge of the Priority Obligations, the Company and
its Restricted Subsidiaries shall not make, and the Holders of the Notes will
not demand, accept, receive or retain, any payment or distribution of any kind
or character, whether in cash, property, securities or otherwise, on account or
in respect of any Subordinated Claim, PROVIDED, HOWEVER, that
(a) interest (including Contingent Interest) on the
Notes may be paid on or after the date payment thereof is due, if no
payment of principal or interest on the Priority Notes is then past
due,
(b) the Company may make and perform an Asset Sale
Purchase Offer from Excess Proceeds pursuant to Section 1016, but only
(i) to the extent the holders of the Priority Notes have declined to
accept an offer by the Company to apply
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the Net Cash Proceeds from which such Excess Proceeds were derived
first to the payment of the Priority Notes (with premium, if any) and
(ii) if no Bankruptcy, Insolvency or Liquidation Proceeding is then
pending, and
(c) the Company may make and perform a Change of
Control Purchase Offer pursuant to Section 1109, but only (i) to the
extent that the holders of the Priority Notes have declined to accept
an offer by the Company to repurchase or retire the Priority Notes in
full (with premium, if any) and (ii) if not Bankruptcy, Insolvency or
Liquidation Proceeding is then pending.
SECTION 1603. BANKRUPTCY, INSOLVENCY OR LIQUIDATION PROCEEDINGS.
(a) In the event of any Bankruptcy, Insolvency or
Liquidation Proceeding:
(i) all Senior Claims shall be paid in full in cash
before any holder of Subordinated Claims shall be entitled to receive
any payment or distribution of any kind or character, whether in cash,
property, securities or otherwise, in such Bankruptcy, Insolvency or
Liquidation Proceeding on account or in respect of any Subordinated
Claim;
(ii) the holders of Senior Claims shall be entitled
to receive any and all payments and distributions of every kind or
character, whether in cash, property, securities or otherwise
(including, without limitation, any such payment or distribution which
may become payable or deliverable by reason of the payment of any other
claim against the Company or any Subsidiary Guarantor being
subordinated to the payment of any Subordinated Claim), that may become
payable or deliverable on account or in respect of any Subordinated
Claim, for application to the payment of all Senior Claims, until the
holders of Senior Claims have received payment of all Senior Claims in
full and in cash; and
(iii) all such payments and distributions on account
or in respect of Subordinated Claims shall be delivered by the debtor,
trustee, receiver, disbursing agent or other person making such payment
or distribution in such Bankruptcy, Insolvency or Liquidation
Proceeding directly to the holders of Senior Claims. If such payment or
distribution consists of any property or securities other than cash,
(i) such payment or distribution shall not be deemed applied to the
payment of Senior Claims at any adjudicated or imputed value and (ii)
such payment or distribution and all other and future non-cash payments
and distributions on account or in respect of Subordinated Claims shall
be delivered to and held by the holders of Senior Claims, until cash
proceeds from such non-cash payments and distributions have been
received by the holders of Senior Claims in an amount sufficient (with
any other cash paid or distributed to them by or on behalf of the
Company or any Subsidiary Guarantor) to pay, in full and in cash, all
Senior Claims (including, without limitation, all Disallowed
Post-Petition Interest/Expense Claims accrued or arising through the
date on which cash proceeds in such amount are received).
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(b) If the holder of any Subordinated Claim fails to file a
proof of claim or other statement or demand in respect of such Subordinated
Claim in a Bankruptcy, Insolvency or Liquidation Proceeding prior to the 30th
day preceding any bar date or other deadline for filing a proof of claim or
other such statement or demand therein, or if any such proof of claim, statement
or demand filed by such holder prior to such day is in any respect inadequate or
insufficient (in the good faith opinion of any holder of a Senior Claim), then
each holder of a Senior Claim shall have the right, but not the obligation, to
execute and deliver (in the name of the holder of such Subordinated Claim or in
its own name but on behalf of the holder of such Subordinated Claim, as such
holder of a Senior Claim may elect) and file in such Bankruptcy, Insolvency or
Liquidation Proceeding any proof of claim, statement or demand which such holder
of a Senior Claim may determine to be required or appropriate in respect of such
Subordinated Claim.
(c) To the extent necessary or reasonably appropriate to
permit the holders of Senior Claims to exercise the right granted to them under
this Section 1603(d), each holder of Subordinated Claims hereby constitutes and
appoints each holder of a Senior Claim as its attorney-in-fact and agent, with
full power of substitution and delegation, to execute, deliver and file any such
proof of claim, statement or demand as herein provided, and the power of
attorney granted herein (being coupled with an interest) is and shall be in all
respects irrevocable.
(d) No holder of a Senior Claim shall, by executing,
delivering or filing any such proof of claim, statement or demand, become liable
or responsible in any respect for the legality, adequacy or sufficiency thereof.
(e) No holder of a Senior Claim shall have the right, as
holder of a Senior Claim or by reason of the subordination provided herein, to
vote any Subordinated Claim in any Bankruptcy, Insolvency or Liquidation
Proceeding.
SECTION 1604. TURNOVER.
If and in each instance that, notwithstanding the provisions
of Sections 1602 and 1603, the Trustee or any holder of any Subordinated Claim
receives any payment or distribution of any kind or character, whether in cash,
property, securities or otherwise (including, without limitation, any such
payment or distribution which may become payable or deliverable by reason of the
payment of any other claim against the Company or any Subsidiary Guarantor being
subordinated to the payment of any Subordinated Claim but excluding any payment
or distribution expressly permitted to be made pursuant to Section 1602), on
account or in respect of any Subordinated Claim at any time when any Senior
Claim is outstanding, then and in each such event:
(a) the Trustee or the holder of such
Subordinated Claim shall forthwith pay over, transfer and deliver such payment
or distribution to the holders of Senior
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Claims, whether or not any Bankruptcy, Insolvency or Liquidation Proceeding is
then pending, until all Senior Claims have been paid in full in cash; and
(b) the Trustee and each holder of a
Subordinated Claim shall, and hereby agrees to, hold in trust for the holders
of Senior Claims, in the identical form received (except for any necessary
endorsement to holders of Senior Claims) and as trustee of an express trust, all
payments and distributions required to be paid over, transferred and delivered
pursuant to this Section 1604.
SECTION 1605. PROCEEDS OF COLLATERAL SUBJECT TO
SUBORDINATION.
All proceeds of Collateral that may at any time be or become
payable or deliverable to any holder of any Subordinated Claim shall be
delivered directly to the holders of Senior Claims, in the same manner and on
the same terms as any other payment or distribution on account or in respect of
any Subordinated Claim.
SECTION 1606. SUBROGATION.
In any Bankruptcy, Insolvency or Liquidation Proceeding,
subject to the prior payment in full and in cash of all Senior Claims, the
holders of Subordinated Claims shall have and may enforce any and all rights of
subrogation accorded by law in respect of any payment or distribution on account
of any Subordinated Claim that is applied to the payment of any Senior Claim
pursuant to the provisions of this Article Sixteen. For such purposes:
(a) no right of subrogation shall be available to or may
be enforced by any holder of any Subordinated Claim, unless and until there has
been a Discharge of the Priority Obligations;
(b) no holder of any Senior Claim makes any
representation or warranty, or shall otherwise have any responsibility, as to
whether any such right of subrogation is accorded or available to any holder of
any Subordinated Claim or is enforceable by it in any particular circumstance;
(c) no holder of any Senior Claim shall have any duty to
any holder of any Subordinated Claim to ensure, perfect, protect, enforce or
maintain any right, remedy, lien or interest that might otherwise be accorded or
available to or enforceable by it or by any holder of any Senior Claim or
Subordinated Claim. The subordination provided herein and the rights of the
holders of Senior Claims hereunder shall remain fully enforceable on the terms
set forth herein, regardless of any act, omission or circumstance (whether or
not attributable to any holder of any Senior Claim and whether or not wrongful)
which does or might in any manner or in any respect destroy, limit, reduce,
affect or impair any right of subrogation otherwise accorded or available to or
enforceable by any holder of any Subordinated Claim. Each holder of any Senior
Claim shall remain utterly free to take or fail to take any and all actions in
respect of any Senior Claim or any person or entity liable therefor or any
collateral security therefor (including, without limitation, each and all of the
acts, omissions and matters
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described in Section 1607), without exonerating any holder of a Subordinated
Claim, even if any right of subrogation is destroyed, limited, reduced, affected
or impaired thereby;
(d) the subordination provided herein and the rights of
the holders of Senior Claims hereunder shall be fully enforceable as to all
Senior Claims that are Disallowed Post-Petition Interest/Expense Claims, even if
and even though no right of subrogation is available in respect of such
Disallowed Post-Petition Interest/Expense Claims; and
(e) for purposes of enforcing any right of subrogation on
the terms set forth in this Section 1606, no payment or distribution on account
of any Subordinated Claim applied to the payment of a Senior Claim shall, as
between the Company and the Subsidiary Guarantors and the holder of such
Subordinated Claim and to the extent of the payment or distribution so applied,
discharge the liability of the Company or any Subsidiary Guarantor for the
payment of such Senior Claim or any Lien securing such Senior Claim and, to this
end, the Company and the Subsidiary Guarantors shall remain obligated to pay
such Senior Claim in full and all Liens securing such Senior Claim shall remain
outstanding and enforceable, notwithstanding any such application. To the extent
necessary to accomplish the foregoing, the provisions of this Section 1606(e)
and all provisions added to the Indenture by the First Supplemental Amendment
and all provisions of the Priority Notes Collateral Documents shall survive and
remain enforceable after Discharge of the Priority Obligations and any discharge
of the First Supplemental Indenture.
SECTION 1607. SUBORDINATION NOT PREJUDICED, AFFECTED OR
IMPAIRED.
(a) No right of the holders of Senior Claims to enforce
subordination as provided in this Article Sixteen shall at any time in any way
be prejudiced, affected or impaired by any act or failure to act on the part of
the Company or any Subsidiary Guarantor or by any act or failure to act on the
part of any holder of Senior Claims or by any breach or default by the Company
or any Subsidiary Guarantor in the performance or observance of any promise,
covenant or obligation enforceable by any holder of Subordinated Claims,
regardless of any knowledge thereof that any holder of Senior Claims may have or
otherwise be charged with, or by any breach or default by any holder of Senior
Claims in the performance or observance of any promise, obligation or duty
enforceable by the Company or any of its Subsidiaries.
(b) Without in any way limiting the generality of the
foregoing, each holder of Senior Claims may at any time and from time to time,
without the consent of or notice to any holder of Subordinated Claims, without
incurring any responsibility or liability to any holder of Subordinated Claims
and without in any manner prejudicing, affecting or impairing the subordination
provided herein or the obligations of the holders of Subordinated Claims under
this Article Sixteen:
(i) purchase securities of, make loans and
advances to, or otherwise extend credit to or for account of the Company or any
Restricted Subsidiary, subject to Section 1012; provided, however, that, except
for the Priority Notes, no such securities, loans,
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advances or extensions of credit shall, even if permitted under Section 1012,
constitute Senior Claims;
(ii) change the manner, place or terms of payment
or extend the maturity to no later than December 31, 1999, alter, compromise,
accelerate or modify any Senior Claim or any agreement or obligation of the
Company or any Subsidiary Guarantor or any other person or entity in any manner
related thereto;
(iii) reduce the amount of any Senior Claim or the
interest thereon;
(iv) release or discharge any Senior Claim or any
guaranty thereof or any agreement or obligation of the Company or any Subsidiary
Guarantor or any other person or entity with respect thereto;
(v) take or fail to take any collateral security
for any Senior Claim (except that Senior Claims shall only be secured pursuant
to Priority Financing Collateral Documents) or take or fail to take any action
which may be necessary or appropriate to ensure that any Lien upon any property
securing any Senior Claim is duly enforceable or perfected or entitled to
priority as against any other Lien or to ensure that any proceeds of any
property subject to any Lien are applied to the payment of any Senior Claim;
(vi) release, discharge or permit the lapse of
any or all Liens at any time securing any Senior Claim; or
(vii) direct the Trustee or Collateral Agent to
exercise or enforce, in any manner, order or sequence, or fail to direct the
Trustee or Collateral Agent as to the exercise or enforcement of, any right or
remedy against the Company or any Subsidiary Guarantor or any collateral
security or any other person, entity or property in respect of any Senior Claim
or Lien securing any Senior Claim or any right under this Article Sixteen or
take or fail to take any other action as to any Priority Notes Collateral.
(c) No exercise, delay in exercising or failure to exercise
any right arising under this Article Sixteen, no act or omission of any holder
of any Senior Claim in respect of the Company or any Subsidiary Guarantor or any
other person or entity or any collateral security for any Senior Claim or any
right arising under this Article Sixteen, no change, impairment, or suspension
of any right or remedy of any holder of any Senior Claim, and no other act,
failure to act, circumstance, occurrence or event which, but for this provision,
would or could act as a release or exoneration of the obligations of the holders
of Subordinated Claims hereunder shall in any way affect, decrease, diminish or
impair any of the obligations of any holder of Subordinated Claims under this
Article Sixteen or give any holder of Subordinated Claims or any other person or
entity any recourse or defense against any holder of Senior Claims in respect of
any right arising under this Article Sixteen.
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SECTION 1608. REDEMPTION, PURCHASE, DEFEASEANCE OR EXCHANGE.
Any redemption, purchase, defeasance or exchange of any
Subordinated Claim, whether or not required or permitted under this Indenture,
shall, for the purposes of this Article Sixteen, constitute a payment or
distribution on account of such Subordinated Claim.
Section 1609. Reinstatement.
If any payment or distribution at any time made on account or
in respect of any Senior Claim is thereafter rescinded, recovered, set aside,
avoided or required to be returned, then such Senior Claim and all rights of the
holder of such Senior Claim to enforce subordination as set forth herein and all
Liens securing Priority Note Obligations shall be automatically and
unconditionally reinstated, as fully as if such payment or distribution had
never been made. To the extent necessary to accomplish the foregoing, the
provisions of this Article Sixteen and all Liens securing Priority Note
Obligations shall survive and remain enforceable after Discharge of the Priority
Obligations and discharge of the First Supplemental Indenture.
24. A NEW ARTICLE SEVENTEEN IS HEREBY ADDED TO
READ IN ITS ENTIRETY AS FOLLOWS:
ARTICLE SEVENTEEN
MODIFICATION AND DISCHARGE
OF
THE FIRST SUPPLEMENTAL INDENTURE
SECTION 1701. ENFORCEABLE BY PRIORITY HOLDERS; ACCEPTANCE;
RELIANCE.
Each and all of the amendments made to this Indenture by the
First Supplemental Indenture and each and all of the Priority Notes Collateral
Documents and the benefit of the Liens securing Priority Note Obligations
created thereby are intended to inure directly to the benefit of each present
and future holder of Priority Note Obligations or Senior Claims and may be
enforced by them in any lawful manner. Notice of acceptance thereof by any such
holder is hereby waived. Reliance thereon by each such holder shall be
conclusively presumed.
SECTION 1702. DISCHARGE OF THE FIRST SUPPLEMENTAL INDENTURE
AND PRIORITY LIENS.
(a) Subject only to Sections 1606(e) and 1609 and to paragraph
(b) of this Section 1702, the amendments made to this Indenture by the First
Supplemental Indenture and, to the extent they secure Priority Note Obligations,
all Liens securing Priority Note Obligations shall be discharged upon Discharge
of the Priority Obligations.
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(b) The following amendments made to this Indenture by the
First Supplemental Indenture shall survive Discharge of the Priority
Obligations:
(i) the addition of the defined term
"Fitzgeralds Black Hawk" to Section 101;
(ii) the amendment of the defined term "Excluded
Assets" and "Permitted Black Hawk
Indebtedness" in Section 101;
(iii) the amendment of clause (h) and addition of
clause (i) to Section 1014;
(iv) the amendment of paragraph (b) of Section
1017;
(v) the amendment of Section 1309 to add a new
paragraph thereto; and
(vi) this paragraph (b) of Section 1702.
25. FOR ALL PURPOSES OF THIS FIRST SUPPLEMENTAL INDENTURE, EXCEPT
AS OTHERWISE HEREIN EXPRESSLY PROVIDED OR UNLESS THE CONTEXT OTHERWISE REQUIRES,
THE TERMS AND EXPRESSIONS USED HEREIN SHALL HAVE THE SAME MEANINGS AS
CORRESPONDING TERMS AND EXPRESSIONS USED IN THE INDENTURE.
26. EXCEPT AS HEREBY EXPRESSLY AMENDED, THE INDENTURE AND THE
NOTES ISSUED THEREUNDER ARE IN ALL RESPECTS RATIFIED AND CONFIRMED AND ALL
TERMS, CONDITIONS AND PROVISIONS THEREOF SHALL REMAIN IN FULL FORCE AND EFFECT.
27. THIS FIRST SUPPLEMENTAL INDENTURE SHALL FORM A PART OF THE
INDENTURE FOR ALL PURPOSES, AND EVERY HOLDER OF NOTES HERETOFORE OR HEREAFTER
AUTHENTICATED AND DELIVERED SHALL BE BOUND HEREBY.
28. THIS FIRST SUPPLEMENTAL INDENTURE MAY BE EXECUTED IN ANY
NUMBER OF COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED SHALL BE DEEMED TO BE AN
ORIGINAL, AND ALL OF WHICH WHEN TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME
INSTRUMENT.
29. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
30. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE EFFECTIVE ONLY UPON
RECEIPT BY THE TRUSTEE OF (i) THE OPINION OF COUNSEL REQUIRED BY SECTION 903 OF
THE INDENTURE, (ii) AN OPINION OF COUNSEL
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STATING THAT THE INDENTURE AS AMENDED PURSUANT TO THIS FIRST SUPPLEMENTAL
INDENTURE CONFORMS TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT, AND (iii)
COPIES OF ALL OPINIONS OF COUNSEL DELIVERED TO THE HOLDERS OF THE PRIORITY NOTES
IN CONNECTION WITH THE CLOSING OF THE SALE OF THE PRIORITY NOTES WHICH OPINIONS
(OR A SEPARATE LETTER) SHALL STATE THAT THE TRUSTEE IS AUTHORIZED TO RELY
THEREON. THE TRUSTEE'S EXECUTION OF THIS FIRST SUPPLEMENTAL INDENTURE SHALL
ESTABLISH CONCLUSIVELY THAT THE TRUSTEE HAS RECEIVED THE OPINIONS REFERRED TO
ABOVE AND THAT, SUBJECT TO EXECUTION BY THE OTHER PARTIES HERETO, THE FIRST
SUPPLEMENTAL INDENTURE HAS BECOME EFFECTIVE.
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IN WITNESS WHEREOF, the parties have caused this First Supplemental
Indenture to be duly executed, and their respective seals to be affirmed, all as
of the date and year first written above.
ISSUER
Attest: FITZGERALDS GAMING CORPORATION
_________________________ By: ___________________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Executive Officer
Title:
SUBSIDIARY GUARANTORS
Attest: FITZGERALDS SOUTH, INC.
_________________________ By: ___________________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Executive Officer
Title:
Attest: FITZGERALDS RENO, INC.
_________________________ By: ___________________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Executive Officer
Title:
Attest: FITZGERALDS INCORPORATED
_________________________ By: ___________________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Executive Officer
Title:
Attest: FITZGERALDS LAS VEGAS, INC.
_________________________ By: ___________________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Executive Officer
Title:
Attest: FITZGERALDS FREMONT EXPERIENCE CORPORATION
By: ___________________________________________
_________________________ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Executive Officer
Name:
Title:
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Attest: FITZGERALDS MISSISSIPPI, INC. (Formerly
POLK LANDING ENTERTAINMENT
CORPORATION)
By: ___________________________________________
_________________________ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Executive Officer
Name:
Title:
Attest: FITZGERALDS BLACK HAWK, INC.
_________________________ By: ___________________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Executive Officer
Name:
Title:
TRUSTEE AND COLLATERAL AGENT
Attest: ▇▇▇▇▇ FARGO BANK, N.A. (Formerly FIRST
INTERSTATE BANK OF NEVADA, N.A.)
_________________________ By: ___________________________________________
Name:
Title:
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