EXHIBIT 10.18
FIRST AMENDMENT
TO LOAN AND SECURITY AGREEMENT
This FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment")
effective as of the 22nd day of September, 2003, by and among XXXXX FARGO
FOOTHILL, INC., a California corporation ("Lender"), THE OLD XXXXXXXXXX XXXXX,
L.L.C., a Louisiana limited liability company ("Parent"), THE OLD XXXXXXXXXX
XXXXX CAPITAL CORP., a Delaware corporation ("OED Capital"; Parent and OED
Capital are referred to hereinafter each individually, as a "Borrower," and
individually and collectively, jointly and severally, as "Borrowers").
W I T N E S S E T H:
WHEREAS, Borrowers and Lender are parties to that certain Loan and
Security Agreement dated as of June 24, 2003 (as amended, restated, supplemented
or otherwise modified from time to time, the "Loan Agreement");
WHEREAS, Borrowers have requested that certain terms and conditions of
the Loan Agreement be amended and Lender has agreed to the requested amendments
on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration paid by each party to the other, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree that all
capitalized terms not otherwise defined herein shall have the meanings ascribed
to such terms in the Loan Agreement and further agree as follows:
1. AMENDMENTS TO SECTION 1.
(a) Section 1.1 of the Loan Agreement, Definitions, is hereby modified
and amended by inserting in alphabetical order therein the following new
definitions:
""FF&E Loan Agreement" means that certain Loan and Security Agreement,
dated as of September 22, 2003, by and among Borrowers, the lenders
identified on the signature pages thereof, and Xxxxx Fargo Foothill,
Inc., as the arranger and administrative agent for the lenders party
thereto, as amended, restated, supplemented or otherwise modified from
time to time."
""Syndication Date" means the date of the effectiveness of one or more
assignments by Lender pursuant to Section 14.1 hereof or Section 14.1
of the FF&E Loan Agreement of any ratable part of the Obligations
(hereunder or as defined in the FF&E Loan Agreement) in an aggregate
amount of not less than $10,000,000; provided, however, that for
purposes of determining the Syndication Date, not more than $5,000,000
of such assignments of the Obligations hereunder shall be credited
toward the minimum $10,000,000 aggregate amount of all such
assignments."
(b) Section 1.1 of the Loan Agreement, Definitions, is hereby modified
and amended by deleting therefrom the definitions of "Maximum Revolver Amount",
"Miscellaneous Indebtedness" and "Permitted Gaming Equipment Purchase Money
Indebtedness" and subsections (h) and (m) from the definition of "Permitted
Lien", in each case in their entirety, and inserting in lieu thereof,
respectively, the following:
""Maximum Revolver Amount" means at any time (such time, the "Time of
Determination") (a) prior to the Phase I Completion Date, $6,520,000,
(b) from and after the Phase I Completion Date but prior to the Second
Anniversary Date, (i) prior to the Syndication Date, $9,000,000 and
(ii) from and after the Syndication Date, $15,000,000 and (c) from and
after the Second Anniversary Date, the greater of (i) (A) prior to the
Syndication Date, $9,000,000 and (B) from and after the Syndication
Date, $10,000,000, or (ii) the aggregate principal amount of all
Advances and Letter of Credit Usage outstanding hereunder on the Second
Anniversary Date less any repayments, refinancings or retirings of such
borrowings made on or after the Second Anniversary Date through the
Time of Determination."
""Miscellaneous Indebtedness" means Indebtedness (other than the
Obligations, Permitted Gaming Equipment Purchase Money Indebtedness and
Obligations (as defined in the FF&E Loan Agreement) under the FF&E Loan
Agreement, but including Capitalized Lease Obligations), in an
aggregate amount outstanding at any one time not in excess of
$7,500,000."
""Permitted Gaming Equipment Purchase Money Indebtedness" means
Purchase Money Indebtedness incurred from time to time to acquire
Gaming Equipment in the ordinary course of business in an aggregate
amount outstanding at any time not in excess of the sum of (a)
$9,000,000 plus (b) the aggregate principal amount of the Advances (as
defined in the FF&E Loan Agreement) which have been repaid."
"(h) Liens securing Miscellaneous Indebtedness; provided that such
Liens attach solely to the property which is financed by such
Miscellaneous Indebtedness;
(m) Liens securing (i) Obligations (as defined in the FF&E Loan
Agreement) under the FF&E Loan Agreement and (ii) Permitted Gaming
Equipment Purchase Money Indebtedness so long as such Lien attaches
only to the asset purchased or acquired and the proceeds thereof; and"
2. AMENDMENT TO SECTION 2. Section 2.12(a)(ii) of the Loan Agreement,
Letters of Credit, is hereby modified and amended by deleting such subsection in
its entirety and inserting in lieu thereof the following:
"(ii) the Letter of Credit Usage would exceed $5,200,000, or"
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3. AMENDMENTS TO SECTION 7.
(a) Section 7.1(c) of the Loan Agreement, Indebtedness, is hereby
modified and amended by deleting such subsection in its entirety and inserting
in lieu thereof the following:
"(c) (i) Indebtedness under the FF&E Loan Agreement and related loan
documents, and (ii) Permitted Gaming Equipment Purchase Money
Indebtedness;"
(b) Section 7.8(a) of the Loan Agreement, Prepayments and Amendments,
is hereby modified and amended by deleting such subsection in its entirety and
inserting in lieu thereof the following:
"(a) Except in connection with a refinancing permitted by Section
7.1(f), prepay, redeem, defease, purchase, or otherwise acquire any
Indebtedness of any Borrower, other than the Obligations, Miscellaneous
Indebtedness or Obligations (as defined in the FF&E Loan Agreement)
under the FF&E Loan Agreement in accordance with this Agreement, and"
4. AMENDMENT TO SECTION 8. Section 8.12 of the Loan Agreement, Events
of Default, is hereby modified and amended by deleting therefrom such section in
its entirety and inserting in lieu thereof the following:
"8.12 If an "Event of Default" occurs under, and as defined in, the
FF&E Loan Agreement and such "Event of Default" is not waived in
accordance with the terms of the FF&E Loan Agreement."
5. NO OTHER AMENDMENTS. Except as otherwise expressed herein, the
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of Lender under the Loan Agreement or any
of the other Loan Documents, nor constitute a waiver of any provision of the
Loan Agreement or any of the other Loan Documents. Except for the amendment set
forth above, the text of the Loan Agreement and all other Loan Documents shall
remain unchanged and in full force and effect and each Borrower hereby ratifies
and confirms its obligations thereunder. This Amendment shall not constitute a
modification of the Loan Agreement or a course of dealing with Lender at
variance with the Loan Agreement such as to require further notice by Lender to
require strict compliance with the terms of the Loan Agreement and the other
Loan Documents in the future, except as expressly set forth herein. Each
Borrower acknowledges and expressly agrees that Lender reserves the right to,
and does in fact, require strict compliance with all terms and provisions of the
Loan Agreement and the other Loan Documents. No Borrower has any knowledge of
any challenge to Lender's claims arising under the Loan Documents or the
effectiveness of the Loan Documents.
6. Conditions Precedent to Effectiveness. This Amendment shall be
effective as of the date first written above (the "Effective Date") upon
Lender's receipt of (a) a counterpart hereof duly executed by each Borrower and
by Lender and (b) evidence that all conditions precedent to the effectiveness of
the FF&E Loan Agreement have been satisfied.
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7. REPRESENTATIONS AND WARRANTIES OF BORROWERS. Each Borrower
represents and warrants as follows:
(a) such Borrower is a limited liability company or
corporation, as the case may be, organized, validly existing and in
good standing under the laws of its state of formation or
incorporation;
(b) The execution, delivery and performance by such Borrower
of this Amendment are within such Borrower's company powers, have been
duly authorized by all necessary company action and do not contravene
(i) such Borrower's articles or certificate of formation, or (ii) any
law or contractual restriction binding on or affecting such Borrower;
(c) No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
is required for the due execution, delivery and performance by such
Borrower of this Amendment or any of the Loan Documents, as amended
hereby, to which such Borrower is or will be a party;
(d) This Amendment and each of the other Loan Documents to
which such Borrower is a party, constitute legal, valid and binding
obligations of such Borrower, enforceable against such Borrower in
accordance with their respective terms; and
(e) No Default or Event of Default is existing.
8. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same agreement. In proving this
Amendment in any judicial proceedings, it shall not be necessary to produce or
account for more than one such counterpart signed by the party against whom such
enforcement is sought. Any signatures delivered by a party by facsimile
transmission shall be deemed an original signature hereto.
9. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. Upon the
effectiveness of this Amendment, on and after the date hereof each reference in
the Loan Agreement to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Loan Agreement, and each reference in the other Loan
Documents to "the Loan Agreement" "thereunder", "thereof" or words of like
import referring to the Loan Agreement, shall mean and be a reference to the
Loan Agreement as amended hereby.
10. COSTS, EXPENSES AND TAXES. Each Borrower agrees to pay on demand
all reasonable costs and expenses in connection with the preparation, execution,
and delivery of this Amendment and the other instruments and documents to be
delivered hereunder, including, without limitation, the fees and expenses of
counsel for Lender with respect thereto.
11. GOVERNING LAW. This Amendment shall be deemed to be made pursuant
to the laws of the State of New York, without regard to the conflict of laws
principles thereof other than Section 5-1401 and Section 5-1402 of the New York
General Obligations Law.
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12. LOAN DOCUMENT. This Amendment shall be deemed to be a Loan Document
for all purposes.
[THE REMAINDER OF THE PAGE IS INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment or
caused it to be executed under seal by their duly authorized officers, as of the
day and year first written above.
BORROWERS:
THE OLD-XXXXXXXXXX XXXXX, L.L.C.
By: /S/ XXXXXXX XXXXXXX
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Its: Chief Financial Officer
THE OLD XXXXXXXXXX XXXXX CAPITAL
CORP., a Delaware corporation
By: /S/ XXXXXXX XXXXXXX
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Its: Chief Financial Officer
LENDER:
XXXXX FARGO FOOTHILL, INC.
By: /S/ XXXXXX XXXXX
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Its: S.V.P.
