Exhibit 10.4



 



EXHIBIT 10.4


AMENDMENT NO.1 TO

AMENDED AND RESTATED AGREEMENT

REGARDING PRE-NEGOTIATED RESTRUCTURING



     This Amendment No.1 (this “Amendment”), dated as of March 20, 2003, is
among the undersigned parties.


     WHEREAS, Fitzgeralds Gaming Corporation and certain of its subsidiaries
are debtors-in-possession (the “Debtors”) in the administratively consolidated
bankruptcy cases styled In re Fitzgeralds Gaming Corp., Bankr. D. Nev. No.
00-33467-GWZ;


     WHEREAS, on or about November 27, 2002, the Debtors, certain of their
executives and certain of the Debtors’ bondholder creditors entered into an
Amended and Restated Agreement Regarding Pre-Negotiated Restructuring (the
“Amended Restructuring Agreement”) which Amended Restructuring Agreement was
approved by the Bankruptcy Court on November 27, 2002;


     WHEREAS, certain disputes regarding the Amended Restructuring Agreement
have arisen among the Debtors, the Executives and certain of the Consenting
Noteholders;


     WHEREAS, on or about March 6, 2003, the Debtors, the Informal Committee,
the Executives and Consenting Noteholders holding (or beneficially owning) in
aggregate more than 50% of the outstanding principal amounts of Notes held by
Consenting Noteholders at the time of this Agreement entered into a Settlement
Agreement (the “Term Sheet Agreement”) that resolved their disputes by, inter
alia, proposing terms for an amendment to the Amended Restructuring Agreement;


     WHEREAS, the parties accordingly desire to amend the Amended Restructuring
Agreement to contemplate a revised plan of reorganization (the “Amended Plan”),
including a debt-for-equity swap in favor of the Noteholders;


     NOW THEREFORE, the undersigned agree as follows:


     1.     Definitions and General.



		
	 	     1.1. Definitions; Reference to Restructuring Agreement. The Amended
Restructuring Agreement as amended hereby is referred to herein as the
Amended Restructuring Agreement. Capitalized terms defined in the
Amended Restructuring Agreement and not otherwise defined herein are used
herein with the meanings so defined.
	 
	 	     1.2. Effect of Amendment. The amendments effected hereby are
prospective only, effective as of the date hereof, and have no
retroactive effect. As for the Debtors, the amendments shall be approved
by the Bankruptcy Court in conjunction with the confirmation of the
Amended Plan. No rights of any person under the Amended Restructuring
Agreement are abrogated, abridged or waived hereby except as expressly
stated herein. If there is a breach of the Amended Restructuring
Agreement or this Amendment, or the Plan is not confirmed on or before
April 21, 2003, then all parties



 






 







		
	 	shall revert to their positions ex ante
the signing of the Term Sheet Agreement, and the amendments to the
Restructuring Agreement effected hereby shall be null and void and of no
force or effect thereafter, except that parties shall retain their rights
to remedy any actionable breaches that occurred during the intervening
period.



     2.     Amendments to Amended Restructuring Agreement.



		
	 	     2.1. Amendments to Definitions.




		
	 	     2.1.1. Liquidation Date. The definition of the term
“Liquidation Date” is amended to read in its entirety as follows:




	 	 	 
	 	 	
“Liquidation Date” means the earlier to occur of (i)
120 days after the Confirmation Date and (ii) the
Effective Date.”




		
	 	     2.1.2. Plan. The definition of the term “Plan” is amended to
read in its entirety as follows:




	 	 	 
	 	 	
“Plan” means the Amended Plan in the form attached
hereto as Exhibit “10”, with amendments in form and
substance reasonably acceptable to the Required
Consenting Noteholders and Debtors and the Executives.”




		
	 	     2.1.3. Required Consenting Noteholders. A new definition is
added to read in its entirety as follows:




	 	 	 
	 	 	
“Required Consenting Noteholders” means Consenting
Noteholders who in the aggregate own Notes that in the
aggregate constitute more than 50% of the outstanding
principal amount of the Notes.”




		
	 	     2.1.4. ReTRAC Project. A new definition is added to read in
its entirety as follows:




	 	 	 
	 	 	
“ReTRAC Project” means a special assessment district,
approved in October 1998 by the Reno City Council, to
finance a portion of the costs to lower the elevation
of the railroad tracks that run through downtown Reno,
Nevada, to sub-grade. Preliminary plans for the ReTRAC
Project provide for the construction of a temporary
rail bypass that will be used to divert rail traffic
around the main railway during construction. The
southern boundary of the bypass will extend out into
the middle of Commercial Row, the street adjacent to
the Casino/Hotel entrance, valet parking area and
hotel-loading zone.”




		
	 	     2.1.5. Settlement Term Sheet Agreement. A new definition is
added to read in its entirety as follows:



-2-






 







	 	 	 
	 	 	
“Settlement Term Sheet Agreement” means the Settlement
Agreement Terms dated as of March 6, 2003, among the
Debtors, the Informal Committee, the Contrarian Funds
and the Executives.”




		
	 	     2.2. Amendment to Section 2.1. Section 2.1 of the Amended
Restructuring Agreement is hereby amended to add the following:




	 	 	 
	 	 	
“Following the 363 Sale of Fitzgeralds Las Vegas, Fitzgeralds
Tunica and Fitzgeralds Blackhawk, holders of more than 66.67%
in face amount of the Notes have expressed their belief that
in order to maximize value for Noteholders, a debt-for-equity
swap is preferred over continued attempts to sell Fitzgeralds
Reno. The Debtors in coordination and cooperation with the
Informal Committee and the Executives will seek to effect
such a reorganization through confirmation of the Amended
Plan.”




		
	 	     2.3. Amendment to Section 3.1(a). Section 3.1(a) of the Amended
Restructuring Agreement is hereby amended to add the following:




	 
	The Debtors shall make no further marketing efforts regarding
the Operating Companies unless an auction requested in
accordance with Section 3.1(c) proceeds.”




		
	 	     2.4. Deletion of Section 3.1(b). Section 3.1(b) of the Amended
Restructuring Agreement will be of no further force and effect.
	 
	 	     2.5. Deletion of Sections 3.6, 3.7 and 3.8. Sections 3.6, 3.7 and
3.8 of the Amended Restructuring Agreement will be of no further force
and effect.
	 
	 	     2.6. Deletion of Sections 4.2, 4.3 and 4.4. Sections 4.2, 4.3 and
4.4 of the Amended Restructuring Agreement will be of no further force
and effect.
	 
	 	     2.7. Amendment to Section 5.2(a). Section 5.2(a) of the Amended
Restructuring Agreement is hereby amended to add the following:




	 	 	 
	 	 	
“It is agreed amongst the parties hereto that the Deemed
Sales Price of Fitzgeralds Reno (inclusive of working capital
of $100,000 which shall include cash of $1.5 million) is $10
million. In addition, the parties hereto agree that the
Deemed Sales Price of Fitzgeralds Reno (i.e. $10 million)
shall be effective and considered a component of
Distributable Cash as of the Liquidation Date. In respect of
the foregoing, it is agreed amongst the parties hereto that
on the Effective Date the Debtors shall pay the Senior
Management the discounted present value as of June 30, 2001,
calculated at 12.25%, of $850,000.”
	 	 	 
	 	 	
“Within 10 Business Days prior to the Liquidation Date, the
Debtors and the Informal Committee shall agree on an estimate
of the remaining Distributable Cash (which shall exclude
$1,500,000 of cash on hand) held



-3-






 




	 	 	 
	 	 	
in, or to be derived from,
the Debtors’ estates with such amount being estimated net of
the Disputed Claim Amounts (as defined below) and the
Holdback Amount (as defined below). On the Liquidation Date,
Senior Management will receive cash payments in respect of
all outstanding amounts owing to them in respect of the Cash
Distribution Incentive as calculated using the estimated
amount of remaining Distributable Cash.”
	 	 	 
	 	 	
“On the Liquidation Date, Senior Management will receive a
cash payment of $25,000.00. The Debtors shall not settle any
condemnation proceeding or any related dispute regarding the
ReTRAC Project without consent of the Informal Committee.
	 	 	 
	 	 	
“In connection with the estimation of the remaining
Distributable Cash as referenced above, the Debtors and the
Informal Committee shall also agree on: (i) a list of
remaining disputed claims; and (ii) the maximum amount of
estate liability for each such disputed claim (the “Disputed
Claim Amount”). On the Liquidation Date, the Debtors shall
place into an escrow account (the “Residual Cash Escrow”) an
amount equal to 8.5% of the Disputed Claim Amount (the
“Holdback Amount”). Payments shall be made from the Residual
Cash Escrow to Senior Management within 25 days after the end
of each calendar month in an amount equal to that portion of
the Holdback Amount which is owing to Senior Management
equaling to 8.5% of the difference (if any) between: (x) the
Disputed Claim Amount with respect each such claim; and (y)
the amount at which each such disputed claim was resolved.”
	 	 	 
	 	 	
“The Consenting Noteholders executing this Agreement agree to
support and vote in favor of the Amended Plan even if the
Bankruptcy Court does not agree to the classification and
treatment of Allowed General Unsecured Claims as proposed in
the Amended Plan. As such, the amounts payable to Senior
Management pursuant to this Section 5.2(b) shall be reduced
by the lesser of (i) $75,000 and (ii) 10% of the aggregate
amounts in excess of $1,200,000 distributed from the Estates
to Jerry Turk and Holiday Inn, in the event the Amended Plan
is not confirmed with a payment cap of 20% for the holders of
Allowed Unsecured Claims exceeding $25,000.00.”




		
	 	     2.8. Amendment to Section 5.2(b). Section 5.2(b) of the Amended
Restructuring Agreement is hereby amended so as to include the following
additional language as the final paragraph thereof.




	 	 	 
	 	 	
“Notwithstanding any provision contained in this Section to
the contrary, with respect to any present value calculation
made for purposes of calculating the Cash Distribution
Incentive, Distributable Cash available
after the Liquidation Date shall be deemed to have been
available for distribution on the Liquidation Date.”



-4-






 




		
	 	     2.9. Deletion of Section 5.3. Section 5.3 of the Amended
Restructuring Agreement will be of no further force and effect.
	 
	 	     2.10. Amendment to Section 5.4. Section 5.4 of the Amended
Restructuring Agreement is hereby amended to replace the 4th sentence up
to the semi-colon so it reads as follows:




	 	 	 
	 	 	
“The Retention Payment shall be paid on the Liquidation Date”




		
	 	     2.11. Amendment to Section 5.5(b). Section 5.5(b) of the Amended
Restructuring Agreement is hereby amended to add at the end of such
section a new paragraph to read in its entirety as follows:




	 	 	 
	 	 	
“Each Executive also agrees to execute, on the Liquidation
Date, a non-compete agreement, in the form of Exhibit “12”
attached hereto limited to the geographic area described in
Section 5.5(b)(2)(b), in favor of reorganized FRI and
reorganized FGC under the Plan.”




		
	 	     2.12. Amendment to Section 5.6. Section 5.6 of the Amended
Restructuring Agreement is hereby amended to read in its entirety as
follows:




	 	 	 
	 	 	
“Senior Management Employment Agreements and Compensation.
	 	 	 
	 	 	
(a) The Debtors shall not assume the existing employment
agreements with Senior Management pursuant to Bankruptcy Code
Section 365. However, each Executive will, until the
Liquidation Date, continue to receive all compensation and
benefits at the levels and under the terms provided in their
respective employment agreements; provided, however, for the
period from November 1, 2002 through October 31, 2003, Phil
Griffith’s annual base salary shall be reduced by the amount
of $170,000 (the “Annual Reduction”). The Annual Reduction
shall be allocated as follows: (i) $30,000 for the period
from November 1, 2002 through January 31, 2003; (ii) $40,000
for the period from February 1, 2003 through April 30, 2003;
(iii) $50,000 for the period from May 1, 2003 through July
31, 2003; and (iv) $50,000 for the period from August 1, 2003
through October 31, 2003. In the event Mr. Griffith’s
employment is terminated, the applicable reduction amount in
effect for the three month period during which employment is
terminated shall be pro rated based upon the actual number of
days lapsed during such three month period prior to the
termination date divided by the total number of days which
constitute such three month period. No Executive shall
receive any compensation other than COBRA benefits as
provided by law for the Executive Health Insurance Program
(paid for by such Executive at the premium rate per month of
the established COBRA rates in place from time to time at the
Company depending upon the applicable dependent
coverage. No Executive shall be required to perform any
services for the



-5-






 




	 	 	 
	 	 	
Debtors after the Liquidation Date. There
shall not be any bonus payments to the Executives except as
contemplated by Section 5.2.
	 	 	 
	 	 	
"(b) Not later than March 31, 2003, the Debtors shall file a
motion for approval to pay Philip Griffith a “gross-up” for
taxes payable in respect of amounts being paid to him in lieu
of the Debtors providing him with a split-dollar life
insurance policy with a death benefit of $10,000,000. Such
motion shall not seek authority to pay gross ups for a period
longer than September 2002 through the Effective Date. The
Informal Committee and the Consenting Noteholders may oppose
such motion. The Debtors shall seek to have such motion
heard on April 21, 2003 or as soon thereafter as they may be
heard; the Consenting Noteholders and Mr. Griffith agree that
such notice is sufficient.
	 	 	 
	 	 	
"(c) On the Confirmation Date, the Debtors shall pay 50% of
the legal fees of the Executives incurred after January 31,
2003 in connection with the Amended Restructuring Agreement,
the amendment thereof and confirmation of the Amended Plan;
provided, however, that in no event shall such payments by
the Debtors exceed $12,500 in the aggregate.”




		
	 	     2.13. Deletion of Section 5.7. Section 5.7 of the Amended
Restructuring Agreement will be of no further force and effect.
	 
	 	     2.14. Deletion of Section 5.9. Section 5.9 of the Amended
Restructuring Agreement will be of no further force and effect.
	 
	 	     2.15. Deletion of Article VI. Article VI of the Amended
Restructuring Agreement will be of no further force and effect.
	 
	 	     2.16. Amendment to Section 9.1. Section 9.1 of the Amended
Restructuring Agreement is hereby amended to add at the end of such
section a new paragraph to read in its entirety as follows:




	 	 	 
	 	 	
“Plan Process. The Debtors shall file the Amended Plan and
Disclosure Statement not later than March 19, 2003. The
Debtors and the Executives shall use their best efforts, and
the Consenting Noteholders shall use their commercially
reasonable efforts (without requiring any out-of-pocket
expenditures or the giving of any indemnity) to cause the
Confirmation Date to occur not later than April 21, 2003, and
the Effective Date as expeditiously as possible thereafter.”




		
	 	     2.17. Amendment to Section 9.2(e). Section 9.2(e) of the Amended
Restructuring Agreement is hereby amended to add at the end of such
section a new paragraph to read in its entirety as follows:




	 	 	 
	 	 	
“Senior Management shall make any and all commercially
reasonable efforts while they are employed by the Debtors to
remain licensed under
applicable gaming laws and regulations and to operate and
manage the



-6-






 




	 	 	 
	 	 	
business of the Debtors. Any and all costs
incurred in this respect shall be borne by the Debtors.”




		
	 	     2.18. Amendment to Section 9.4. Section 9.4 of the Amended
Restructuring Agreement is hereby amended by adding a new sentence at the
end of such section to read in its entirety as follows:




	 	 	 
	 	 	
“After confirmation of the Amended Plan, the Informal
Committee shall discharge its financial advisor.”




		
	 	     2.19. Amendment to Section 9.5. Section 9.5 of the Amended
Restructuring Agreement is hereby amended by adding a new sentence at the
end of such section to read in its entirety as follows:




	 	 	 
	 	 	
“After confirmation of the Amended Plan, the Debtors shall
discharge their financial advisor.”




		
	 	     2.20. New Exhibit 10; Agreed Amended Plan. A new Exhibit 10 is
added to the Amended Restructuring Agreement, in the form attached to
Amendment No. 1 as Exhibit “A”.
	 
	 	     2.21. New Exhibit 11; Agreed Disclosure Statement. A new Exhibit 11
is added to the Amended Restructuring Agreement, in the form attached to
Amendment No. 1 as Exhibit “B”.
	 
	 	     2.22. New Exhibit 12; Non-Compete Agreement. A new Exhibit 12 is
added to the Amended Restructuring Agreement, in the form as attached to
Amendment No. 1 as Exhibit “C”.



     3.     Miscellaneous Operative Provisions.



		
	 	     3.1. Auction. The auction previously requested by Consenting
Noteholders pursuant to Section 3.1(c) of the Amended Restructuring
Agreement is hereby held in abeyance by agreement of the parties until
the Confirmation Date. Provided the Amended Plan is confirmed by April
21, 2003, the auction shall be cancelled and the notice of auction deemed
withdrawn. It is agreed that the time elapsed between the giving of
notice of such auction through March 6, 2003 shall count toward the time
limit for the Debtors to conduct an auction should the parties be placed
in their ex ante positions as a result of a failure to confirm the
Amended Plan. Subject to confirmation of the Amended Plan and the
Effective Date, Section 3.1(c) of the Amended Restructuring Agreement
will be of no further force and effect.




		
	 	     3.2. Standstill. No party to the Amended Restructuring Agreement
shall exercise any remedy under the Amended Restructuring Agreement after
the date hereof; provided, however, that any party may exercise remedies
for breach of the Amended Restructuring Agreement, or exercise its rights
to terminate that agreement, after April 21, 2003 unless the Amended Plan
has been confirmed. All cure periods under the
Amended Restructuring Agreement are hereby tolled from March 6, 2003
through April



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	 	21, 2003, and from April 21, 2003 through the Effective
Date if the Confirmation Date occurs on or prior to April 21, 2003. Upon
the Effective Date of the Plan, all existing claims of breach and
defaults or Events of Default under the Amended Restructuring Agreement
shall be deemed cured.



     4.     Miscellaneous.



		
	 	     4.1. Governing Law. This Amendment shall be governed by the
substantive law of The State of Nevada.
	 
	 	     4.2. Entire Agreement. This Amendment, together with the Amended
Restructuring Agreement, constitutes the entire agreement among the
parties regarding the subject matter hereof, and supercedes all prior and
contemporaneous agreements and negotiations including the Settlement Term
Sheet Agreement, which is of no further force or effect; provided,
however, that the covenants of the parties under this Amendment and the
Amended Restructuring Agreement shall not in any way be interpreted to
limit the rights of any Consenting Noteholder under the Commitment
Agreement of even date herewith.
	 
	 	     4.3. Settlement. This Amendment is a settlement of disputes
concerning the Amended Restructuring Agreement, and is intended to be
subject to Federal Rule of Evidence 408 and similar state-law provisions.
	 
	 	     4.4. No Third Party Beneficiaries. This Amendment shall not confer
any rights or remedies upon any person other than the Debtors, Executives
and Consenting Noteholders and their respective successors and permitted
assigns, and any predecessor holders of Notes that, as of the date
hereof, are held by any of the parties identified as the “Contrarian
Funds” on the signature pages hereto, and nothing herein express or
implied shall give or be construed to give to any Person, other than the
parties hereto and such successors, assigns and predecessors, any legal
or equitable rights, remedies or claims hereunder.
	 
	 	     4.5. Jurisdiction. The parties consent to the exclusive
jurisdiction of the Bankruptcy Court to resolve all disputes regarding
this Amendment, and waive any right to trial by jury with respect to such
disputes.
	 
	 	     4.6. Execution of Document. This Amendment may be executed in
counterpart, and by facsimile signatures.
	 
	 	     4.7. Successors and Assigns. This Amendment is binding on the
parties’ successors and assigns.



[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]



-8-






 





     IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by
the duly authorized officer of each party and is effective on the date stated
in the Preamble hereto.



	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	FITZGERALDS GAMING CORPORATION
	 	 	 	 	 	 	 
	 	 	
By:
	 	/s/ Philip D. Griffith	 	 
	 	 	 	 	
	 	 
	 	 	
Its	 	 	 	 
	 	 	 	 	
	 	 
	 	 	 	 	 	 	 
	 	 	FITZGERALDS, INC. 
	 	 	 	 	 	 	 
	 	 	
By:
	 	/s/ Philip D. Griffith	 	 
	 	 	 	 	
	 	 
	 	 	
Its	 	 	 	 
	 	 	 	 	
	 	 
	 	 	 	 	 	 	 
	 	 	FITZGERALDS BLACK HAWK, INC.
	 	 	 	 	 	 	 
	 	 	
By:
	 	/s/ Philip D. Griffith	 	 
	 	 	 	 	
	 	 
	 	 	
Its	 	 	 	 
	 	 	 	 	
	 	 
	 	 	 	 	 	 	 
	 	 	FITZGERALDS BLACK HAWK II, INC.
	 	 	 	 	 	 	 
	 	 	
By:
	 	/s/ Philip D. Griffith	 	 
	 	 	 	 	
	 	 
	 	 	
Its	 	 	 	 
	 	 	 	 	
	 	 
	 	 	 	 	 	 	 
	 	 	FITZGERALDS LAS VEGAS, INC.
	 	 	 	 	 	 	 
	 	 	
By:
	 	/s/ Philip D. Griffith	 	 
	 	 	 	 	
	 	 
	 	 	
Its	 	 	 	 
	 	 	 	 	
	 	 
	 	 	 	 	 	 	 
	 	 	FITZGERALDS MISSISSIPPI, INC. 
	 	 	 	 	 	 	 
	 	 	
By:
	 	/s/ Philip D. Griffith	 	 
	 	 	 	 	
	 	 
	 	 	
Its	 	 	 	 
	 	 	 	 	
	 	 



-9-






 




	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	FITZGERALDS RENO, INC.
	 	 	 	 	 	 	 
	 	 	
By:
	 	/s/ Philip D. Griffith	 	 
	 	 	 	 	
	 	 
	 	 	
Its	 	 	 	 
	 	 	 	 	
	 	 
	 	 	 	 	 	 	 
	 	 	FITZGERALDS SOUTH, INC.
	 	 	 	 	 	 	 
	 	 	
By:
	 	/s/ Philip D. Griffith	 	 
	 	 	 	 	
	 	 
	 	 	
Its	 	 	 	 
	 	 	 	 	
	 	 
	 	 	 	 	 	 	 
	 	 	101 MAIN STREET, Limited Liability Company
	 	 	 	 	 	 	 
	 	 	
By:
	 	/s/ Philip D. Griffith	 	 
	 	 	 	 	
	 	 
	 	 	
Its	 	 	 	 
	 	 	 	 	
	 	 
	 	 	 	 	 	 	 
	 	 	FITZGERALDS FREMONT EXPERIENCE CORPORATION
	 	 	 	 	 	 	 
	 	 	
By:
	 	/s/ Philip D. Griffith	 	 
	 	 	 	 	
	 	 
	 	 	
Its	 	 	 	 
	 	 	 	 	
	 	 




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Principal Amt.
	 	 	 	 	 	 	 	 	of Notes
	 	 	 	 	 	 	 	 	 	
	 
	Dated:	 	 	 	CONTRARIAN CAPITAL MANAGEMENT, L.L.C.	 	 	$	 
	 	 	


	 	 	 	 	 	 	
	 
	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:
	 	/s/ authorized signatory	 	 	 	 
	 	 	 	 	 	 	
	 	 	 	 
	 	 	 	 	Its	 	 	 	 	 	 
	 	 	 	 	 	 	
	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Dated:	 	 	 	CONTRARIAN CAPITAL ADVISORS, L.L.C.	 	 	$	 
	 	 	


	 	 	 	 	 	 	
	 
	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:
	 	/s/ authorized signatory	 	 	 	 
	 	 	 	 	 	 	
	 	 	 	 
	 	 	 	 	Its	 	 	 	 	 	 
	 	 	 	 	 	 	
	 	 	 	 



-10-






 




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Principal Amt.
	 	 	 	 	 	 	 	 	of Notes
	 	 	 	 	 	 	 	 	 	
	 
	Dated:	 	 	 	CONTRARIAN CAPITAL FUND I, L.P.	 	 	$	 
	 	 	


	 	 	 	 	 	 	
	 
	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:
	 	/s/ authorized signatory	 	 	 	 
	 	 	 	 	 	 	
	 	 	 	 
	 	 	 	 	Its	 	 	 	 	 	 
	 	 	 	 	 	 	
	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Dated:	 	 	 	CONTRARIAN CAPITAL FUND II, L.P.	 	 	$	 
	 	 	


	 	 	 	 	 	 	
	 
	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:
	 	/s/ authorized signatory	 	 	 	 
	 	 	 	 	 	 	
	 	 	 	 
	 	 	 	 	Its	 	 	 	 	 	 
	 	 	 	 	 	 	
	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Dated:	 	 	 	CONTRARIAN CAPITAL TRADE CLAIMS, L.P.	 	 	$	 
	 	 	


	 	 	 	 	 	 	
	 
	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By:
	 	/s/ authorized signatory	 	 	 	 
	 	 	 	 	 	 	
	 	 	 	 
	 	 	 	 	Its	 	 	 	 	 	 
	 	 	 	 	 	 	
	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Dated:	 	 	 	CREDIT SUISSE FIRST BOSTON INTERNATIONAL	 	 	$       25,000,000	 
	 	 	


	 	 	 	 	 	 	
	 
	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By	 	 	 	 	 	 
	 	 	 	 	 	 	
	 	 	 	 
	 	 	 	 	Its	 	 	 	 	 	 
	 	 	 	 	 	 	
	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	SENIOR MANAGEMENT	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Stock:	 	

	 	/s/ Philip D. Griffith


Philip D. Griffith	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Stock:	 	

	 	/s/ Michael E. McPherson


Michael E. McPherson	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Stock:	 	

	 	/s/ Max L. Page


Max L. Page	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	Stock:	 	

	 	/s/ Paul H. Manske


Paul H. Manske	 	 	 	 



-11-






 



NON-COMPETITION AND NON-SOLICITATION AGREEMENT



     This NON-COMPETITION AGREEMENT (the “Agreement”) is made as of
     , 2003 between Fitzgeralds Gaming Corporation, a Delaware
corporation (the “Company”), and [Name of Executive] (the “Executive”).


     WHEREAS, the Executive has been a member of senior management of
Fitzgeralds Gaming Corporation, a Nevada Corporation (“FGC”), and certain of
its Subsidiaries.


     WHEREAS, FGC is a debtor-in-possession in a bankruptcy case filed in the
United States Bankruptcy Court for the District of Nevada in a matter entitled
In re Fitzgeralds Gaming Corporation, Case No. BK-N-00-33467-GWZ (Joint
Administration with BK-N-00-33468 (Fitzgeralds South, Inc.), BK-N-00-33469
(Fitzgeralds Reno, Inc.), BK-N-00-33470 (Fitzgeralds, Inc.), BK-N-00-33471
(Fitzgeralds Las Vegas, Inc.), BK-N-00-33472 (Fitzgeralds Mississippi, Inc.),
BK-N-00-33473 (Fitzgeralds Black Hawk, Inc.), BK-N-00-33474 (Fitzgeralds Black
Hawk II, Inc.), BK-N-00-33475 (101 Main Street LLC), BK-N-00-33476 (Fitzgeralds
Fremont Experience Corp.)) (the “Chapter 11 Case”).


     WHEREAS, on March 19, 2003, FGC filed its Second Amended Plan of
Reorganization as Modified (the “Plan”).


     WHEREAS, the Debtors, Senior Management and the Consenting Noteholders
entered into a Restructuring Agreement (the “Restructuring Agreement”), dated
as of December 1, 2000, as amended, which provides for, inter alia, certain
payments to be made to the Executive in consideration of such Executive’s
agreement to enter into one or more non-competition agreements with any buyer
of the assets or stock of an Operating Company (as defined in the Restructuring
Agreement).


     WHEREAS, pursuant to the Plan, FGC will be reorganized and, upon the
effectiveness of the Plan, FGC will be merged with and into the Company, with
the Company surviving such merger.


     WHEREAS, the Company, as the successor-in-interest to FGC constitutes a
buyer of the stock of FGC.


     WHEREAS, the Executive possesses an intimate knowledge of the business and
affairs of FGC and FRI and their policies, methods, personnel and operations.


     WHEREAS, the Executive acknowledges and agrees that the consideration for
the obligations of the Executive set forth in this Agreement consists of the
payments or other consideration paid or payable to him pursuant to the
Restructuring Agreement and the transactions contemplated thereby. The
Executive further acknowledges and agrees that the restrictions on his
activities set forth herein are reasonable.


     NOW, THEREFORE, the parties agree as follows:


 






 


     1.     DEFINITIONS. Unless otherwise defined herein, initially capitalized
terms used in this Agreement shall have the meanings ascribed to them in the
Restructuring Agreement.


     2.     NON-COMPETITION


               2.1. Restriction on Competitive Activities. The Executive agrees
that for a period of eighteen months following the Liquidation Date, the
Executive shall not, either for himself or for any other Person
controlled by him, engage in any commercial activities in the gaming
industry and shall not, directly or indirectly, own, manage, operate,
control or participate in any manner in the ownership, management,
operation or control of, or be connected as an officer, employee,
partner, director, principal, consultant, agent or otherwise with, or
have any financial interest in, or aid or assist anyone else in the
conduct of, any business, venture or activity which is the same as or
similar to, or otherwise competes with, any business, venture or activity
which is being conducted or is proposed to be conducted by the Company or
by any group, division or Subsidiary of the Company on or prior to the
Liquidation Date in any area that is within a 75 mile radius of the
hotel-casino in Reno, Nevada owned by FGC or its successors in interest,
but excluding the geographic area within one-half mile of the shoreline
of Lake Tahoe. Ownership of less than five percent of the publicly held
voting stock of any corporation shall not, in and of itself, constitute a
violation of this Section 2.1.



               2.2. Restriction on Taking Employees or Customers. Provided the
balance of $500,000.00 of the Executive Payment is paid to Senior
Management on the Liquidation Date, the Executive agrees that for a
period of twelve months following the Liquidation Date, the Executive
shall not, directly or indirectly, (i) recruit or otherwise seek to
induce any employees of the Company or FRI to terminate their employment
or violate any agreement with, or duty to, the Company or FRI, and (ii)
solicit or encourage any customer or supplier of the Company or FRI to
terminate or materially diminish its relationship with the Company or FRI
to conduct with himself or any other Person any business, venture or
activity which such customer or supplier has conducted at any time with
the Company or FRI or any of their respective predecessors.



     3.     NOTICES. Any notice required to be given pursuant to this Agreement
shall be given in writing. Any notice, consent, approval, demand, delivery or
other communication in connection with this Agreement shall be deemed to be
given if given in writing (including by facsimile) addressed as provided below
(or to the addressee at such other address as the addressee shall have
specified by notice actually received by the addressor), and if either (a)
actually delivered in fully legible form to such address or (b) in the case of
a letter, five days shall have elapsed after the same shall have been deposited
in the United States mails, with first class postage prepaid and registered or
certified:


     If to the Executive:



		
	 	     [Address]
	 
	 	     Telephone:
	 	     Facsimile:



     with copies to:


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	 	     [Address]
	 
	 	     Attention:
	 	     Facsimile:



     If to the Company:



		
	 	     [Address]
	 
	 	     Attention:
	 	     Facsimile:



     with a copy to:



		
	 	     Ropes & Gray
	 	     One International Place
	 	     Boston, MA 02110
	 	     Attention: Don DeAmicis, Esq.
	 	     Telephone: (617) 951-7000
	 	     Facsimile: (617) 951 7050



     4.     MISCELLANEOUS. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is approved by the
Board of Directors of the Company and agreed to in writing signed by the
Executive and such officer as may be specifically authorized by the Board of
Directors of the Company in connection with such approval. No waiver by the
Company at any time of compliance with or of any breach by the Executive of any
condition or provision of this Agreement shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time. The validity, interpretation, construction and performance of this
Agreement and the legal relations created thereby shall be governed by the laws
(other than the conflict of law rules) of the State of Nevada and all actions
or proceedings regarding this Agreement shall be brought in the State of
Nevada. The Executive acknowledges and agrees that, if he were to breach any
of the provisions of this Agreement, the harm to the Company and its Affiliates
would be irreparable, and that because the Company’s legal remedies may be
inadequate in the event of such a breach or threatened breach of, or other
failure to perform, any of the covenants and agreements set forth herein by the
Executive, the Company shall, in addition to obtaining any other remedy or
relief available to it (including without limitation damages at law), have the
right to obtain preliminary and permanent injunctive or other equitable relief
against any such breach or threatened breach without having to post bond.


     5.     VALIDITY. In the event that any provision hereof would, under
applicable law, be invalid or unenforceable, such provision shall, to the
extent permitted under applicable law, be construed by modifying or limiting it
so as to be valid and enforceable to the maximum extent possible under
applicable law. The provisions of this Agreement are severable, and in the
event that any provision hereof should be held invalid or unenforceable in any
respect, it shall not invalidate, render unenforceable or otherwise affect any
other provision hereof. The executive


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further agrees that, in the event that
any provision of this Agreement shall be determined by any court of competent
jurisdiction to be unenforceable by reason of its being extended over too great
a time, too large a geographic area or too great a range of activities, such
provision shall be deemed to be modified to permit its enforcement to the
maximum extent permitted by law.


     6.     COUNTERPARTS. This Agreement may be executed in any one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.


     7.     ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto, and supersedes any and all prior and
contemporaneous communications, agreements and understandings, written or oral,
with respect to the subject matter hereof; provided, however, that if a
conflict exists between any provision of this Agreement and the Restructuring
Agreement, the terms of the Restructuring Agreement shall prevail; provided
further, however that this Agreement shall not terminate or supersede any
additional obligations the Executive may have pursuant to any other agreement
or under applicable law with respect to confidentiality, non-solicitation of
employee, assignment of rights to intellectual property or the like, all of
which shall remain in full force and effect in accordance with their terms
except as otherwise provided in the Restructuring Agreement or Plan.


     8.     ASSIGNMENT. This Agreement shall inure to the benefit of and be
binding upon (i) the Executive, his personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees and (ii) the Company and its successors (including, without
limitation, by means of reorganization, merger, consolidation or liquidation)
and permitted assigns. The Company may assign this Agreement to any Subsidiary
or to any successor of the Company by reorganization, merger, consolidation or
liquidation and any transferee of all or substantially all of the business or
assets of the Company. The obligations of the Executive herein are personal,
and the Executive may not assign this Agreement.


     9.     EFFECTIVENESS. This Agreement shall only become effective upon the
Liquidation Date.


     IN WITNESS WHEREOF, the parties hereto have hereunto set their hands under
seal, as of the date first above written.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	Fitzgeralds Gaming Corporation, A Delaware Corporation

	 	 	 	 	 	 	 
	 	 	
By	 	 	 	 
	 	 	 	 	
	 	 
	 	 	 	 	Name:	 	 
	 	 	 	 	Title:	 	 
	 	 	 	 	 	 	 
	 	 	 	 	
	 	 
	 	 	 	 	[Name of Executive]	 	 




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