EXHIBIT 10.02
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FOURTH AMENDMENT TO
CREDIT AGREEMENT
Dated as of July _, 2000
(amending the Credit Agreement,
dated as of
February 26, 1998)
among
ALADDIN GAMING, LLC,
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
THE BANK OF NOVA SCOTIA,
as the Administrative Agent for the Lenders,
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL
CORPORATION, as the Syndication
Agent for the Lenders.
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FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Fourth Amendment to
Credit Agreement") is dated as of July _, 2000, by and among ALADDIN GAMING,
LLC, a Nevada limited-liability company (the "Borrower") the various financial
institutions as are or may become parties hereto (collectively, "Lenders") THE
BANK OF NOVA SCOTIA, as administrative agent (together with any successor
thereto in such capacity, the "Administrative Agent") the Lenders, and ▇▇▇▇▇▇▇
▇▇▇▇▇ CAPITAL CORPORATION, as syndication agent (together with any successor
thereto in such capacity, the "Syndication Agent") for the Lenders.
In consideration of the mutual agreements herein contained and other
good and valuable consideration, receipt of which is hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Administrative Agent, the
Syndication Agent and the Documentation Agent have heretofore entered into (w)
that certain Credit Agreement (the "CA") dated as of February 26, 1998, (x) that
certain First Amendment to Credit Agreement (the "First Amendment to Credit
Agreement") dated as of January 29, 1999, (y) that certain Second Amendment to
Credit Agreement (the "Second Amendment to Credit Agreement") dated as of April
5, 1999, effective as of March 10, 1999 and (z) that certain Third Amendment to
Credit Agreement (the "Third Amendment to Credit Agreement") dated as of June 2,
2000 (the CA, as amended by the First Amendment to Credit Agreement, the Second
Amendment to Credit Agreement and the Third Amendment to Credit Agreement shall
be referred to herein as the ("Credit Agreement") and
WHEREAS, the Borrower has requested the Lenders to enter into certain
amendments of the Credit Agreement; and
WHEREAS, each of the parties hereto is willing, on the terms and
subject to the conditions hereinafter set forth, to so amend the Credit
Agreement.
NOW, THEREFORE, in consideration of the agreements contained herein,
the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
SECTION I.1. Certain Defined Terms. The following terms (whether or
not italicized) when used in this Fourth Amendment to Credit Agreement,
including its preamble and recitals, shall, except where the context otherwise
requires, have the following meanings:
"Effective Date" is defined in SECTION 4.1.
"First Amendment to Credit Agreement" is defined in the FIRST
RECITAL.
"Fourth Amendment to Credit Agreement" is defined in the PREAMBLE.
"GECC Facilities Agreement" shall mean that certain Facilities
Agreement between General Electric Capital Corporation ("GECC") itself and as
agent for certain participants, and the Borrower dated as of June 26, 1998, as
amended by that certain First Amendment to Facilities Agreement between GECC,
for itself and as agent for certain participants, GMAC Commercial Mortgage
Corporation ("GMAC CMC") and the Borrower dated as of September 2, 1998, that
certain Agreement of Amendment among GECC, for itself and as agent for certain
participants, and the Borrower dated as of June 2, 2000, that certain Agreement
of Amendment No. 3 between GECC, for itself and as agent for certain
participants, GMAC CMC and the Borrower dated as of July __, 2000 ("Amendment
No. 3") as the same may from time to time be further amended, supplemented,
amended and restated or otherwise modified in accordance with the terms of the
Credit Agreement, as amended by the Fourth Amendment to Credit Agreement, and
the GECC Intercreditor Agreement.
"GECC Intercreditor Agreement" shall mean that certain Intercreditor
Agreement by and among the Administrative Agent, GECC and the Borrower dated as
of June 30, 1998 and as thereafter from time to time amended, supplemented,
amended and restated or otherwise modified in accordance with the terms thereof.
"Second Amendment to Credit Agreement" is defined in the FIRST
RECITAL.
"Third Amendment to Credit Agreement" is defined in the FIRST
RECITAL.
SECTION I.2. OTHER DEFINED TERMS; CONSTRUCTION. For purposes of this
Fourth Amendment to Credit Agreement, capitalized terms used but not defined
herein shall have the meanings assigned to them in the Credit Agreement, as
amended by this Fourth Amendment to Credit Agreement, and the rules of
construction set forth in ARTICLE I of the CA shall apply to this Fourth
Amendment to Credit Agreement.
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ARTICLE II
ACKNOWLEDGMENTS BY THE BORROWER
SECTION II.1. BALANCING THE MAIN PROJECT BUDGET. The Borrower
acknowledges that as of the date of this Fourth Amendment to Credit Agreement,
the amount required in order for the Main Project Budget to be In Balance is
$50,000,000 (collectively, the "IN BALANCE AMOUNT").
SECTION II.2. LETTER OF CREDIT. On or about April 3, 2000, London
Clubs, one of the Completion Guarantors, delivered a letter of credit to the
Administrative Agent in the amount of $47,261,830 in order to bring the Main
Project Budget In Balance. On or about June 30, 2000, the Borrower and London
Clubs requested the Administrative Agent to waive the requirement that the Main
Project Budget be In Balance and make an Advance of $45,698,305.94 by drawing
such amount under such letter of credit and depositing the proceeds thereof into
the Guaranty Deposit Account for disbursement by the Disbursement Agent. Such
requirement was waived by the Administrative Agent pursuant to CLAUSE (a) of
SECTION 5.2.1 of the CA and such Advance was approved by the Administrative
Agent as set forth in the Advance Request and Certificate dated as of June 30,
2000 and advanced on or about June 30, 2000 by the Disbursement Agent pursuant
thereto.
SECTION II.3. RESERVATION OF RIGHTS. The Borrower agrees that neither
this Fourth Amendment to Credit Agreement nor the making of any Advance by the
Disbursement Agent and the Administrative Agents consent thereto either before
or after the date hereof shall constitute (w) an approval of all or any portion
of any Advance Request, (x) a waiver or forbearance by the Disbursement Agent or
the Administrative Agent under any of the Loan Documents, (y) the acceptance by
the Disbursement Agent or the Administrative Agent of any course of conduct by
the Borrower, the Completion Guarantors or any other Person or (z) an agreement
by the Administrative Agent to amend any of the Loan Documents without the
approval from the Required Lenders and a corresponding amendment of the GECC
Facilities Agreement. The Borrower further agrees that the Administrative Agent
and the Disbursement Agent reserve all rights, remedies and options under the
Loan Documents to require the Borrower to satisfy in all respects the conditions
relating to each Advance and perform all of its obligations under the Loan
Documents which are then due and owing or are susceptible of performance, as the
case may be.
ARTICLE III
AMENDMENTS
SECTION III.1. AMENDMENTS. The parties hereto hereby agree as
follows:
(a) The FIFTH RECITAL in the CA shall be deemed to be
deleted in its entirety and the following recital shall be substituted in its
place:
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WHEREAS, the Borrower expects to fund the costs to construct the
Hotel/Casino Component and pay for the Equipment Component and the Borrower's
expenses, if any, with respect to the Energy Project Component, which are
expected pursuant to the Main Project Budget to cost $916,469,139 in the
aggregate, by
(a) obtaining from Holdings in consideration for common
membership interests of the Borrower (x) the Site which has a net
equity value (the "Land Equity") of $67,000,000, based on an
appraised value of $135,000,000 (after giving effect to the release
of the portion of the Site required for the Mall Project and the
Music Project) and the discharge of all Indebtedness secured thereby
of $68,000,000, (y) the benefit of pre-development Main Project Costs
of at least $7,000,000 and (z) a portion of the London Clubs
Contribution in the amount of $42,000,000;
(b) obtaining from Holdings in consideration for Series A
Preferred Membership Interests of the Borrower, the amount of
$115,047,100, representing the proceeds received by Holdings, Capital
and Enterprises from the issuance of the Discount Notes and Warrants
in an aggregate amount of $107,047,100 pursuant to the Discount Note
Purchase Agreement and a portion of the London Clubs Contribution in
the amount of $8,000,000;
(c) obtaining from the Sponsors additional contributions
pursuant to the Completion Guaranty in the aggregate amount of
$145,459,968;
(d) obtaining from GECC pursuant to the Approved Equipment
Funding Commitment a $60,000,000 capitalized lease and $20,000,000 in
purchase money loans covering the Gaming Equipment and the Specified
Equipment;
(e) obtaining Commitments from the Lenders in an aggregate
amount of $453,750,000, all as further described in the following
recital;
(f) obtaining from The Pepsi-Cola Company or an Affiliate
thereof ("Pepsi") an agreement (the "Pepsi Agreement") pursuant to
which Pepsi will provide beverages exclusively at the Main Project
during the term of the Pepsi Agreement in exchange for payments in an
aggregate amount of $2,754,643;
(g) obtaining $1,500,000 from the counterparty to the
initial Rate Protection Agreement which was delivered by the Borrower
on the Closing Date in accordance with SECTION 5.1.9 of the CA with
respect to a restructuring of such initial Rate Protection Agreement;
(h) obtaining from Global Cash Access, Inc. or an Affiliate
thereof ("Global Cash") an agreement (the "Global Agreement")
pursuant to which Global Cash will
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provide credit card services during the term of the Global Agreement
in exchange for payments in an aggregate amount of $1,000,000; and
(i) obtaining $957,428 from advance deposits and rental
income.
(b) The SIXTH RECITAL in the CA shall be deemed to be
deleted in its entirety and the following recital shall be substituted in its
place:
WHEREAS, the Borrower desires to obtain
(a) Term A Loan Commitments from the Term A Lenders
pursuant to which the Borrower may, from time to time on and after
the Effective Date and prior to the Term A Loan Commitment
Termination Date, obtain
(i) from the Issuer, Letters of Credit in a
maximum aggregate Stated Amount at any time outstanding not
to exceed $20,000,000, and
(ii) from the Term A Lenders, Borrowings of the
Term A Loans,
all SUBJECT, HOWEVER, to the limitation that the sum at any time of
(x) the aggregate original principal amount of all Term A Loans PLUS
(y) the aggregate Stated Amount of outstanding Letters of Credit
shall not exceed $129,750,000;
(b) Term B Loan Commitments from the Term B Lenders
pursuant to which a single Borrowing of Term B Loans in a maximum
original principal amount of $114,000,000 shall be made by the
Borrower on the Closing Date; and
(c) Term C Loan Commitments from the Term C Lenders
pursuant to a single Borrowing of Term C Loans in a maximum original
principal amount of $160,000,000 shall be made by the Borrower on the
Closing Date; and
(d) Term D Loan Commitments from the Term D Lenders
pursuant to which the Borrower may, from time to time on and after
July __, 2000 and prior to the Term D Loan Commitment Termination
Date, obtain from the Term D Lenders, Borrowings of the Term D Loans
in a maximum principal amount of $50,000,000 which amount shall be
reduced by the aggregate amount of Main Project Costs which the
Design/Builder, Fluor, any other Contractor and/or the Completion
Guarantor have agreed or confirmed in writing, to the satisfaction of
the Administrative Agent in its sole discretion, that they are
responsible for paying from their own funds (including, without
limitation, the Dollar value of Change Orders which have been or will
be performed by the Design/Builder or any other Contractor at no cost
to the Borrower but which will be paid by one or more of the
Completion Guarantors pursuant to an agreement which has been
approved by the Administrative Agent in its sole discretion); and
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(c) The following definition shall be added to the CA after
the definition of AMH Pledge Agreement:
"Amendment to Agreements" means on any date, the Amendment to
Agreements, as originally in effect on the Effective Date of Fourth Amendment to
Credit Agreement, between the Borrower and the Administrative Agent, for the
benefit of the Lenders, as thereafter from time to time amended, supplemented,
amended and restated or otherwise modified in accordance with the terms of the
Credit Agreement.
(d) The definition of APPLICABLE BASE RATE MARGIN as set
forth in the CA shall be deemed to be deleted in tis entirety and the
following definition shall be substituted in its place:
"Applicable Base Rate Margin" means, (v) relative to any Term B Loan,
Term C Loan or Term D Loan, the proceeds of which on any date are being held in
the Bank Proceeds Account, 1.00% PER ANNUM, (w) relative to any Term B Loan, the
proceeds of which on any date have been advanced to the Borrower from the Bank
Proceeds Account, 2.50% PER ANNUM, (x) relative to any Term C Loan, the proceeds
of which on any date have been advanced to the Borrower from the Bank Proceeds
Account, 3.00% PER ANNUM; (y) relative to any Term D Loan, the proceeds of which
on any date have been advanced from the Bank Proceeds Account, 3.50% PER ANNUM;
and (z) relative to any Term A Loan, (1) on any date prior to the date which is
six months after the Conversion Date, 2.00% PER ANNUM and (2) on any date from
and after the date which is six months after the Conversion Date, the PER ANNUM
percentage set forth below opposite the Total Debt to EBITDA Ratio set forth in
the Current Compliance Certificate:
Total Debt to EBITDA Ratio Applicable Base Rate Margin
-------------------------------------------------- ---------------------------------
(Greater or equal to) 4.0:1 1.75%
(Greater or equal to) 3.5:1 and (Less than) 4.0:1 1.50%
(Greater or equal to) 3.0:1 and (Less than) 3.5:1 1.00%
(Greater or equal to) 2.5:1 and (Less than) 3.0:1 0.75%
(Greater or equal to) 2.5:1 0.50%
(e) The definition of APPLICABLE LIBO RATE MARGIN as set
forth in the CA shall be deemed to be deleted in its entirety and the
following definition shall be substituted in its place:
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"Applicable LIBO Rate Margin" means, (v) relative to any Term B Loan,
Term C Loan or Term D Loan, the proceeds of which on any date are being held in
the Bank Proceeds Account, 2.00% PER ANNUM, (w) relative to any Term B Loan, the
proceeds of which on any date have been advanced to the Borrower from the Bank
Proceeds Account, 3.50% PER ANNUM, (x) relative to any Term C Loan, the proceeds
of which on any date have been advanced to the Borrower from the Bank Proceeds
Account, 4.00% PER ANNUM; (y) relative to any Term D Loan, the proceeds of which
on any date have been advanced from the Bank Proceeds Account, 4.50% PER ANNUM;
and (z) relative to any Term A Loan, (1) on any date prior to the date which is
six months after the Conversion Date, 3.00% PER ANNUM and (2) on any date from
and after the date which is six months after the Conversion Date, the PER ANNUM
percentage set forth below opposite the Total Debt to EBITDA Ratio set forth in
the Current Compliance Certificate:
Total Debt to EBITDA Ratio Applicable LIBO Rate Margin
--------------------------------------------------- ------------------------------
(Greater or equal to) 4.0:1 2.75%
(Greater or equal to) 3.5:1 and (Less than) 4.0:1 2.50%
(Greater or equal to) 3.0:1 and (Less than) 3.5:1 2.00%
(Greater or equal to) 2.5:1 and (Less than) 3.0:1 1.75%
(Greater or equal to) 2.5:1 1.50%
(f) The definition of BANK CREDIT FACILITY as set forth
in the CA shall be deemed to be deleted in its entirety and the following
definition shall be substituted in its place:
"Bank Credit Facility" means the Term A Loan Commitment, the Term B
Loan Commitment, the Term C Loan Commitment and the Term D Loan Commitment.
(g) The definition of CHANGE ORDER as set forth in the
CA shall be deemed to be deleted in its entirety and the following definition
shall be substituted in its place:
"Change Order" means, at any time, (i) with respect to the
Design/Build Contract, an adjustment made to the Guaranteed Maximum Price or the
Design/Build Contract Time with respect to changes in the Work which increase or
decrease the time of performance or the actual cost to the Design/Builder of the
Work to be performed by the Design/Builder under the Design/Build Contract and
(ii) with respect to the other Contracts, an adjustment made to the cost or time
to complete the Work which increase or decrease the time of performance or the
actual cost of the Work to be performed by the Contractors under the Contract.
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(h) The definition of COMMITMENT as set forth in the CA
shall be deemed to be deleted in its entirety and
the following definition shall be substituted in its place:
"Commitment" means, as the context may require, a Term A Loan
Commitment, a Term B Loan Commitment, a Term C Loan Commitment, a Term D Loan
Commitment or a Letter of Credit Commitment made by a Lender hereunder.
(i) The definition of COMMITMENT AMOUNT as set forth in
the CA shall be deemed to be deleted in its entirety and the following
definition shall be substituted in its place:
"Commitment Amount" means, as the context may require, the Term A
Loan Commitment Amount, the Term B Loan Commitment Amount, the Term C Loan
Commitment Amount, the Term D Loan Commitment Amount or the Letter of Credit
Commitment Amount.
(j) The definition of COMMITMENT TERMINATION DATE as set
forth in the CA shall be deemed to be deleted in its entirety and the
following definition shall be substituted in its place:
"Commitment Termination Date" means, as the context may require, the
Term A Loan Commitment Termination Date, the Term B Loan and Term C Loan
Commitment Termination Date or the Term D Loan Commitment Termination Date.
(k) The following definition shall be added to the CA after
the definition of Completion Guaranty:
"Completion Guaranty Joinder" means the Joinder Agreement dated as of
July __, 2000 between ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇, his wife, and the
Administrative Agent, for the benefit of the Lenders as thereafter from time to
time amended, supplemented, amended and restated or otherwise modified in
accordance with the terms of the Credit Agreement.
(l) ITEM (x) in CLAUSE (a) of the definition of FORCE
MAJEURE as set forth in the CA shall be deleted in
its entirety and the following ITEM (x) shall be substituted in its place:
(x) late performance by the Design Builder, the Architect of Record
or any other Contractor,
(m) The definition of INDIRECT COST as set forth in the
CA shall be deemed to be deleted in its entirety and the following definition
shall be substituted in its place:
"Indirect Cost" means any Main Project Cost which is not a Direct
Cost, including appraisal fees, the Term A Loan Commitment Fee, the Term B and
Term C Loan Commitment Fee, the Term D Loan Commitment Fee, the fees set forth
in the Fee Letters, interest on the
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Loans prior to the Conversion Date, brokers' commissions, fees of the
Independent Consultants, insurance during construction, surety bond premiums,
cost of surveys, Impositions during construction, title examination and title
insurance premiums, recording expenses in connection with the Deed of Trust
and other Security Documents (and any amendments or modifications thereof or
supplements thereto) and fees and disbursements of the attorneys for the
Administrative Agent.
(n) The following ITEM (iv) shall be added to CLAUSE (a) of
the definition of INTEREST PERIOD as set forth in the CA:
(iv) in the case of Term D Loans made or
maintained as LIBO Rate Loans, occurring on more than four
different dates;"
(o) The following definition shall be added to the CA after
the definition of Keep-Well Agreement:
"Keep-Well Joinder" means the Joinder Agreement dated as of July __,
2000 between the Trust and the Administrative Agent, for the benefit of the
Lenders, as thereafter from time to time amended, supplemented, amended and
restated or otherwise modified in accordance with the terms of the Credit
Agreement.
(p) The definition of LOAN as set forth in the CA shall
be deemed to be deleted in its entirety and the following definition shall be
substituted in its place:
"Loan" means a Term A Loan, a Term B Loan, a Term C Loan or a Term D
Loan of any type.
(q) The Ratification and Reaffirmation, the Term D Loan
Fee Letter, the Term D Note, the Keep Well Joinder, the Completion Guaranty
Joinder and the Amendment to Agreement shall be added to the definitions of
Loan Documents in the CA.
(r) The definition of MAIN PROJECT BUDGET as set forth
in the CA shall be deemed to be deleted in its entirety and the following
definition shall be substituted in its place:
"Main Project Budget" means a budget in substantially the form of
EXHIBIT X-2 (as amended from time to time in accordance with SECTION 7.2.18)
annexed to the Fourth Amendment to Credit Agreement.
(s) The definition of NOTE as set forth in the CA shall
be deemed to be deleted in its entirety and the following definition shall be
substituted in its place:
"Note" means a Term A Note, a Term B Note, a Term C Note, a Term D
Note or a Registered Note.
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(t) The references to ("Owner Representatives") in
the definitions of "Available Funds", "Construction Benchmark Schedule",
"Opening Condition" and "Realized Savings" and in SECTION 6.26.2, SECTION
7.1.16, SECTION 7.1.17 and SECTION 7.2.18 shall be deleted in their entirety and
any requirements in the Loan Documents regarding deliveries, certifications,
opinions, determinations, inspections, analyses to be made by the Owner
Representative or other duties to be performed by it under the Loan Documents
may be (i) made or performed by any other Person approved by the Administrative
Agent or (ii) waived by the Administrative Agent, in each case in its sole
discretion.
(u) The definition of PERCENTAGE as set forth in the
CA shall be deemed to be deleted in its entirety and the following definition
shall be substituted in its place:
"Percentage" means, relative to any Lender, the applicable percentage
relating to Term A Loans, Term B Loans, Term C Loans, as the case may be, as set
forth opposite its signature to the CA under the applicable column heading or as
set forth in a Lender Assignment Agreement under the applicable column heading
and relating to Term D Loans as set forth on ANNEX I to the Fourth Amendment to
Credit Agreement or as set forth in a Lender Assignment Agreement, in each case
as such percentage may be adjusted from time to time pursuant to Lender
Assignment Agreement(s) executed by such Lender and its Assignee Lender(s) and
delivered pursuant to SECTION 10.11.1. A Lender shall not have any Commitment to
make Term A Loans, Term B Loans, Term C Loans or Term D Loans, as the case may
be, if its percentage under the applicable column heading is zero percent (0%).
(v) The definition of PROJECT PARTY as set forth in the
CA shall be deemed to be deleted in its entirety and the following definition
shall be substituted in its place:
"Project Party" means the Borrower, AHL, Sommer Enterprises, Capital,
Holdings, London Clubs, LCNI, the Design/Builder, Fluor or any other Person
which is a party to a Material Main Project Document.
(w) The following definition shall be added to the CA after
the definition of RATE PROTECTION AGREEMENT:
"Ratification and Reaffirmation" means that certain Ratification and
Reaffirmation dated as of July __, 2000, by each of the parties signatory
thereto, as the same may from time to time be further amended, supplemented,
amended and restated or otherwise modified in accordance with the terms of this
Agreement."
(x) ITEM (x) in the PROVISO in the definition of
REQUIRED LENDERS as set forth in the CA shall be deleted in its entirety and
the following ITEM (x) shall be substituted in its place:
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(x) amendments affecting only one class of Lenders (with a class for
each of the Term A Lenders, the Term B Lenders, the Term C Lenders and the Term
D Lenders) will require the approval of the Non-Defaulting Lenders holding 66
2/3% or more of the principal amount of the Loans, Letters of Credit or, if
applicable, Commitments for such class:
(y) The following definition shall be added to the CA after
the definition of SCOTIABANK:
"Scotiabank Collateral Account Agreement" means, on any date, the
Scotiabank Collateral Account Agreement, as originally in effect on the Closing
Date, among the Borrower, the Disbursement Agent and the Depositary and as
thereafter from time to time amended, supplemented, amended and restated or
otherwise modified in accordance with the terms hereof.
(z) The definition of SCOTIABANK FEE LETTER as set forth
in the CA shall be deemed to be deleted in its entirety and the following
definition shall be substituted in its place:
"Scotiabank Fee Letter" means the confidential letter agreement,
dated December 4, 1997, among the Borrower, the Sponsors and Scotiabank and the
confidential letter agreement, dated July __, 2000 (the "Term D Loan Fee
Letter") among the Borrower, the Sponsors and Scotiabank.
(aa) The definition of STATED MATURITY DATE as set forth
in the CA shall be deemed to be deleted in its entirety and the following
definition shall be substituted in its place:
"Stated Maturity Date" means
(a) with respect to all Term A Loans, the date which is the
seventh anniversary of the Closing Date;
(b) with respect to all Term B Loans, the date which is
eight and one-half years after the Closing Date;
(c) with respect to all Term C Loans, the tenth anniversary
of the Closing Date; and
(d) with respect to all Term D Loans, the date which is ten
and one-half years after the Closing Date.
(bb) The following definitions shall be added to the
CA after the definition of TERM C NOTE:
"Term D Lender" means any Lender which has made a Term D Loan
Commitment or holds a Term D Loan.
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"Term D Loan" is defined in SECTION 2.1.6.
"Term D Loan Commitment" means the aggregate principal amount of Term
D Loans which the Term D Lenders are obligated to make pursuant to SECTION
2.1.6. The Term D Loan Commitment shall not exceed $50,000,000 which amount
shall be reduced by the aggregate amount of Main Project Costs which the
Design/Builder, Fluor, any other Contractor and/or the Completion Guarantor have
agreed or confirmed in writing, to the satisfaction of the Administrative Agent
in its sole discretion, that they are responsible for paying from their own
funds (including, without limitation, the Dollar value of Change Orders which
have been or will be performed by the Design/Builder or any other Contractor at
no cost to the Borrower but which will be paid by one or more of the Completion
Guarantors pursuant to an agreement which has been approved by the
Administrative Agent in its sole discretion).
"Term D Loan Commitment Amount" means, on any date, relative to any
Term D Lender, the portion of the Term D Loan Commitment of such Term D Lender
reduced by the principal amount of any Term D Loans made by such Term D Lender
as of such date. The portion of the Term D Loan Commitment of each Term D Lender
is set forth on ANNEX I to the Fourth Amendment to Credit Agreement or as set
forth in a Lender Assignment Agreement.
"Term D Loan Commitment Fee" is defined in SECTION 3.3.1.
"Term D Loan Commitment Termination Date" means the earlier of
(a) the Term A Loan Commitment Termination Date (if the
Term A Loans have not been made on or prior to such date);
(b) the date which is six months after the Conversion Date;
and
(c) the date on which any Event of Default occurs.
Upon the occurrence of any event described in CLAUSE (a), (b) or (c), the Term D
Loan Commitments shall terminate automatically and without any further action.
"Term D Note" means, on any date, a promissory note of the Borrower
payable to any Term D Lender, in the form of EXHIBIT A-5 annexed to the Fourth
Amendment of Credit Agreement (as such promissory note may thereafter from time
to time be amended, supplemented, amended and restated, endorsed or otherwise
modified), evidencing the aggregate Indebtedness of the Borrower to such Term D
Lender resulting from outstanding Term D Loans, and also means all other
promissory notes accepted from time to time in substitution or replacement
therefor or renewal thereof.
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(cc) The definition of WORK as set forth in the CA shall
be deemed to be deleted in its entirety and the following definition shall be
substituted in its place:
"Work" shall include the "Work" as defined in SECTION 1.7 of the
Design/Build Contract and the obligations to be performed by the Contractors
under the Contracts.
(dd) SECTION 2.1.4 as set forth in the CA shall be deemed
to be deleted in its entirety and the following Section shall be substituted in
its place:
SECTION 2.1.4 LENDERS NOT PERMITTED OR REQUIRED TO MAKE LOANS. No
Lender shall be permitted or required to make any Loan if, after giving effect
thereto, the aggregate outstanding principal amount of
(a) all Term A Loans
(i) of all Lenders with a Term A Loan Commitment,
together with the aggregate amount of all Letter of Credit
Outstandings, would exceed the then existing aggregate
amount of the Term A Loan Commitment Amounts, or
(ii) of such Lender with a Term A Loan
Commitment, together with such Lender's Percentage of the
aggregate amount of all Letter of Credit Outstandings,
would exceed such Lender's then existing Term A Loan
Commitment Amount of such Lender; or
(b) all Term B Loans or all Term C Loans (as the case
may be)
(i) of all Lenders made on the Closing Date would
exceed the aggregate amount of the Term B Loan Commitment
Amounts (in the case of Term B Loans) or the aggregate
amount of the Term C Loan Commitment Amounts (in the case
of Term C Loans), or
(ii) of such Lender with a Term B Loan Commitment
or with a Term C Loan Commitment, as applicable, made on
the Closing Date would exceed such Lender's then existing
Term B Loan Commitment Amount (in the case of Term B Loans)
or then existing Term C Loan Commitment Amount (in the case
of Term C Loans); or
(c) all Term D Loans of all Lenders with a portion of the
Term D Loan Commitment would exceed the then existing aggregate
amount of the Term D Loan Commitment.
(ee) The following Section shall be added to the Credit
Agreement as SECTION 2.1.6:
14
SECTION 2.1.6 TERM D LOAN COMMITMENT. From time to time on any
Business Day occurring from and after the date on which the proceeds of all
Term B Loans, Term C Loans and the Term A Loans have been disbursed from the
Bank Proceeds Account but prior to the Term D Loan Commitment Termination
Date, each Lender that has a portion of the Term D Loan Commitment will make
a loan (relative to such Lender, its "Term D Loan") to the Borrower equal to
such Lender's Percentage of the aggregate amount of each Borrowing of the
Term D Loans requested by the Borrower to be made on such day. The Commitment
of each such Lender described in this SECTION 2.1.6 is herein referred to as
its "Term D Loan Commitment." On the terms and subject to the conditions
hereof, the Borrower may from time to time borrow and prepay the Term D Loans
but no amount paid or prepaid with respect to the Term D Loans may be
reborrowed.
(ff) The following Section shall be added to the Credit
Agreement as SECTION 2.3.5:
SECTION 2.3.5 TERM D LOANS. On the terms and subject to the
conditions of this Agreement and the Disbursement Agreement prior to the Term
D Loan Commitment Termination Date, the Borrower may from time to time
irrevocably request that Term D Loans be made by the Lenders. Term D Loans
may be part of an Advance from time to time to Fund Project Costs in
accordance with the Loan Documents or, at the option of a Term D Lender, may
be made in a single Borrowing directly into the Bank Proceeds Account (for
purposes of the Disbursement Agreement, any Term D Loan advanced to the Bank
Proceeds Account shall be deposited into the Term B Sub-Account and disbursed
therefrom as a Term B Loan in accordance with the Disbursement Agreement and
the Fourth Amendment to Credit Agreement). Any such request for Term D Loans
shall be made in accordance with SECTION 2.3.1 and Section 2.4 of the
Disbursement Agreement. Notwithstanding the date on which the Term D Loans
are made by the Lenders or any provisions of the UCC, any applicable law or
decision, each Lender agrees that all Liens and security interests created
under any Loan Document in favor of the Lenders shall inure to the benefit of
such Lender as if such Lender had made such loan on the Closing Date and such
Liens and security interests shall be treated by such Lenders, on the one
hand, and such Lenders making the Term D Loans, on the other hand, as having
equal priority.
(gg) CLAUSE (a), CLAUSE (b) and CLAUSE (c) of SECTION 3.1.1
as set forth in the CA shall be deemed to be deleted in its entirety and the
following clauses shall be substituted in their place:
(a)(i) From time to time on any Business Day, the Borrower
may make a voluntary prepayment, in whole, of the
outstanding principal amount of any Term A Loan, PROVIDED,
HOWEVER, that
15
(A) All such voluntary prepayments
shall require at least one but no more than five
Business Days' prior written notice to the
Administrative Agent; and
(B) All such voluntary partial
prepayments shall be, in the case of LIBO Rate
Loans, in an aggregate minimum amount of
$4,000,000 and an integral multiple of $1,000,000
and, in the case of Base Rate Loans, in an
aggregate minimum amount of $4,000,000 and an
integral multiple of $1,000,000.
(ii) From time to time on any Business Day after
the second anniversary of the Effective Date, the Borrower
may make a voluntary prepayment, in whole or in part, of
the outstanding principal amount of any Term B Loan, Term C
Loan or Term D Loan; PROVIDED, HOWEVER, that
(A) any such prepayment of such Loans
shall be made PRO RATA among such Loans of the
same type and, if applicable, having the same
Interest Period of all Lenders that have made
such Loans (with the amounts so allocated being
applied to the remaining amortization payments
for such Loans in such amounts as the Borrower
shall determine);
(B) all such voluntary prepayments
shall require at least one but no more than five
Business Days' prior written notice to the
Administrative Agent;
(C) all such voluntary partial
prepayments shall be, in the case of LIBO Rate
Loans, in an aggregate minimum amount of
$4,000,000 and an integral multiple of $1,000,000
and, in the case of Base Rate Loans, in an
aggregate minimum amount of $4,000,000 and an
integral multiple of $1,000,000; and
(D) shall be accompanied by a premium
equal to the product of (1) the percentage set
forth opposite the 12-month period ending on the
anniversary of the Effective Date in which such
prepayment is made MULTIPLIED BY (2) the amount
then prepaid:
Third Anniversary: 3.00%
Fourth Anniversary: 2.00%
Fifth Anniversary: 1.00%
Each Anniversary Thereafter: 0.0%
16
(b) From and after the Conversion Date, the principal
amount of the Term A Loans, the Term B Loans, the Term C Loans and
the Term D Loans shall be amortized (the "Scheduled Amortization") on
the dates and in the amounts set forth on SCHEDULE II annexed to the
Fourth Amendment to Credit Agreement.
(c) From and after the Conversion Date, the Borrower shall
make mandatory prepayments of principal (the "Mandatory Prepayments")
of all Loans in addition to the Scheduled Amortization on the dates
and in the amounts set forth in SCHEDULE III annexed to the Fourth
Amendment to Credit Agreement; PROVIDED, HOWEVER, on any date on
which a Mandatory Prepayment is to be made, any Term B Lender, any
Term C Lender or any Term D Lender may elect not to receive its
portion of such Mandatory Prepayment in which case 50% of the portion
of the Mandatory Prepayment which was to have been made to such
Lender shall be paid PRO RATA to (x) the Term B Lenders, the Term C
Lenders and the Term D Lenders which have elected to receive their
portions of such Mandatory Prepayment and (y) the Term A Lenders
which have made a Term A Loan (up to the outstanding amount of the
Term A Loans), and upon the payment of such 50% portion of such
Mandatory Prepayment, the Borrower shall be deemed to have satisfied
its obligations to make such Mandatory Prepayment. Except as set
forth in the proviso of the immediately preceding sentence, Mandatory
Prepayments will be applied ratably among the Term A Loan, the Term B
Loan, the Term C Loan and the Term D Loan."
(hh) ITEM SIXTH as set forth in CLAUSE (b) of SECTION
3.1.2 of the CA and the balance of the sentence appearing after ITEM SIXTH
shall be deemed to be deleted in its entirety and the following shall be
substituted in its place:
SIXTH, ratably among the aggregate outstanding principal
balance of the Loans and, after all amounts evidenced and
secured by the Loan Documents have been indefeasibly paid
in full and the Borrowers have performed their obligations
under the Loan Documents, the balance, if any, shall be
delivered to the Borrower."
(ii) The following sentence shall be added at the end of
SECTION 3.3.1:
From and after July __, 2000 and until the Conversion
Date, a non-refundable fee (the "Term D Loan Commitment
Fee") in the amount of one-half percent PER ANNUM of the
aggregate amount of the then existing Term D Loan
Commitment Amounts shall accrue on the daily average of the
aggregate amount of the then existing Term D Loan
Commitment Amount. The Term D Loan Commitment Fee shall be
payable in arrears to the Term D Lenders on each Quarterly
Payment Date in proportion to such Term D
17
Lenders' respective then existing Term D Loan Commitment
Amount.
(jj) The first sentence of SECTION 5.2.4 as set forth in
the CA shall be deemed to be deleted in its entirety and the following sentence
shall be substituted in its place:
Subject to SECTION 2.3.2 with respect to Term A Loans, SECTION 2.3.3
with respect to Term B Loans and Term C Loans and SECTION 2.3.5 with
respect to Term D Loans, the Administrative Agent shall have received
a Borrowing Request for the Loan being requested or a Letter of
Credit Issuance Request if a Letter of Credit is being requested or
extended.
(kk) The following Section shall be added to the Credit
Agreement as SECTION 5.2.7:
SECTION 5.2.7 CONDITIONS FOR ADVANCES OF TERM D LOANS UNDER THE
DISBURSEMENT AGREEMENT AND THE MAKING OF TERM D Loans. Not in limitation but
in furtherance of the other conditions in this ARTICLE V, the following
conditions shall be satisfied prior to the making of any Advance of a Term D
Loan under the Disbursement Agreement or any Term D Loan, as the case may be,
(a) all conditions to the making of any Advance as set
forth in the Disbursement Agreement shall be satisfied by the
Borrower or otherwise waived in writing by the Administrative Agent
in its sole discretion;
(b) except as set forth in the proviso to this CLAUSE (b),
the proceeds of the Term B Loan and Term C Loan shall be fully
disbursed from the Term B Sub-Account and the Term C Sub-Account,
respectively, and the Term A Loans shall be fully advanced prior to
the making of the Term D Loan; PROVIDED, HOWEVER, all fees payable
under the Term D Loan Fee Letter on or before the Effective Date (as
defined in the Fourth Amendment to Credit Agreement) shall be paid
from the Term D Loan;
(c) if such Lender was not already a Lender prior to the
making of such Loan, the Administrative Agent shall have received
from such Lender a joinder to this Agreement, which joinder shall be
in form and substance reasonably satisfactory to the Administrative
Agent.
(ll) CLAUSE (c) of SECTION 7.1.19 of the CA shall be
deleted in its entirety and the following clause (c) shall be substituted in
its place:
(c) Take all actions and do all things as may be
reasonably necessary under NRS Chapter 278 and the applicable
provisions of the ▇▇▇▇▇ County Code, to cause the Music Project
Parcel to become a separate legal parcel as promptly as practicable.
The
18
Borrower shall, upon creation of the Music Project Parcel as a
separate legal parcel, deliver a notice to such effect to the
Administrative Agent. Promptly thereafter, at the Borrower's sole
cost and expense, in substantially concurrent transactions:
(i) the Borrower and Aladdin Music shall
terminate the Music Project Ground Lease; and
(ii) substantially concurrently with the
foregoing, and as a condition precedent thereto, the
Borrower shall deliver to the Administrative Agent: (A) a
legal opinion from counsel reasonably acceptable to the
Administrative Agent to the effect that (1) the Music
Project Parcel and the Main Project Parcel have been
legally created as separate legal parcels under NRS Chapter
278 and the applicable provisions of the ▇▇▇▇▇ County Code
and (2) the Deed of Trust remains enforceable in accordance
with its terms and continues to be effective with respect
to the Music Project Parcel and the Main Project Parcel to
create the security interests described therein against the
Music Project Parcel and the Main Project Parcel, together
with such other legal opinions as the Administrative Agent
may reasonably request, each in form and substance
reasonably satisfactory to the Administrative Agent, (B)
endorsements, or commitments by the Title Insurer to issue
endorsements, to the Title Policies, in each case, in form
and substance satisfactory to the Administrative Agent,
insuring the continuing perfection and priority of the
respective Liens on the Main Project Security and (C) any
amendments to the Reciprocal Easement Agreement, the Site
Work Agreement and the Common Parking Area Use Agreement
necessary to allow continued performance by the parties
thereto of their obligations thereunder.
Notwithstanding anything to the contrary set forth herein, in
exchange for the "Release Price" (defined below) and satisfaction of the
conditions listed below, the Administrative Agent shall deliver on behalf of the
Lenders a release of the Music Project Parcel from the Deed of Trust and the
Music Parcel Project shall be reconveyed on behalf of the Lenders by the
Administrative Agent to the Borrower or its designee. The obligation of the
Lenders to deliver the release and reconveyance shall be subject to the delivery
by the Borrower of (A) a legal opinion from counsel reasonably acceptable to the
Administrative Agent to the effect that the Deed of Trust remains enforceable in
accordance with its terms and continues to be effective with respect to the Main
Project Parcel to create the security interests described therein against the
Main Project Parcel, together with such other legal opinions as the
Administrative Agent may reasonably request, each in form and substance
satisfactory to the Administrative Agent, (B) endorsements, or commitments by
the Title Insurer to issue endorsements, to the Title Policies, in each case, in
form and substance satisfactory to the Administrative Agent, insuring the
continuing perfection and priority of the respective Liens on the Main Project
Security and (C) any amendments which have been approved by the Administrative
Agent to the Reciprocal Easement Agreement, the Site Work Agreement and the
Common Parking Area Use Agreement necessary to allow continued performance by
the parties thereto of their obligations thereunder.
19
The "Release Price" shall be a cash payment equal to 100% of the contract
sales price (which shall be no less than the fair market value of the Music
Parcel Project at the time the Borrower enters into the contract of sale
therefor) paid by a BONA FIDE third party purchaser of the Music Project
Parcel which is not an Affiliate any of any of the Aladdin Parties or the
London Clubs Parties REDUCED BY BONA FIDE closing costs which have been
approved by the Administrative Agent in its sole discretion. The Release
Price received by the Lenders shall be applied in accordance with SECTION
3.1.2.
(mm) Notwithstanding anything to the contrary set forth
in the introductory language of SECTION 7.2.4 of the CA, for purposes of
CLAUSE (a), CLAUSE (b), CLAUSE (d) and CLAUSE (e) of said Section, FQ1 shall
commence with the close of the Fiscal Quarter in which December 31, 2000
occurs and the references in each of said clauses to the Conversion Date
shall be deleted and deemed to be December 31, 2000. The introductory
language in SECTION 7.2.4 of the CA shall continue to apply to CLAUSE (C) of
said Section.
(nn) The words "or under any other Contract" shall be
added to the end of ITEM (III) of CLAUSE (a) of SECTION 7.2.17 of the CA
before the semi-colon.
ARTICLE IV
CONDITIONS PRECEDENT AND COVENANT
SECTION IV.1. CONDITIONS TO EFFECTIVENESS. This Fourth Amendment
to Credit Agreement shall be and become effective on the date (the "Effective
Date") on which each of the following conditions precedent shall have been
satisfied.
(a) DELIVERIES. The Administrative Agent shall have
received counterparts of (i) the Ratification and Reaffirmation
executed by Authorized Representatives of each of the parties
thereto; (ii) this Fourth Amendment to Credit Agreement executed by
Authorized Representatives of the Borrower, the Administrative Agent
and the Syndication Agent; (iii) all documentation required by the
Lenders to evidence and secure the Term D Loans; (iv) written
verification that a portion of the payments to be made by Pepsi to
the Borrower under the Pepsi Contract in an amount of no less than
$1,200,000 has been received by the Borrower and deposited into the
Guaranty Deposit Account together with a written commitment from
Pepsi to make the balance of such payments under the Pepsi Contract
on or before July 28, 2000 such that an aggregate amount of no less
than $2,754,643 shall have been funded under the Pepsi Contract on or
before July 28, 2000; (v) a certificate from the Architect that the
design of the Main Project and the Parking Garage is complete
(subject to such variations approved by the Administrative Agent in
its sole discretion) such design has been approved by all
Governmental Authorities having jurisdiction over the Main Project
and that all temporary certificates of occupancy for zones listed on
SCHEDULE IV hereto have been
20
issued by the due date for such temporary certificate of occupancy
listed on said schedule; (vi) a certified copy of each of the
Contracts listed on SCHEDULE V hereto together with a continuation
agreement from the Contractor thereunder in form and content
satisfactory to the Administrative Agent in its sole discretion;
(vii) written confirmation that (x) the GECC Facility has been
funded in an aggregate amount of at least $42,257,379.96 covering
the Specified Property and the Gaming Equipment listed on SCHEDULE
VI annexed hereto, (y) that the proceeds thereof have been
received by the proper Person and (z) to the extent that the
Borrower has received any proceeds, the Borrower has deposited
such proceeds into the Guaranty Deposit Account; (viii) written
confirmation from GECC that it will fund $37,742,620.04 from the
GECC Facility on or before September 30, 2000 for the Specified
Property and Gaming Equipment listed on SCHEDULE VII annexed
hereto, subject to and in accordance with the terms of the GECC
Facility Agreement (of which no less than $30,000,000 shall be
funded on or before August 30, 2000 with the balance being funded
on or before September 30, 2000) such that the aggregate amount
funded from the GECC Facility on or before September 30, 2000
shall be no less than the aggregate amount of $80,000,000; (ix) an
effective amendment to the GECC Facilities Agreement which
conforms the GECC Facilities Agreement to the Credit Agreement, as
amended by the Fourth Amendment to Credit Agreement, and includes
the consent of GECC to the execution and delivery hereof; (x) a
general release substantially in the form of the release set forth
in SECTION 5.7 of this Fourth Amendment to Credit Agreement in
favor of the Lenders and the Agents from each of the Aladdin
Parties, the London Clubs Parties and all other Persons as
required by the Administrative Agent through the Effective Date of
this Fourth Amendment of Credit Agreement; and (xi) delivery of
such other items required by the Administrative Agent or any of
the Lenders.
(b) INCUMBENCY, ETC. The Administrative Agent shall have
received (with copies for each Lender) a certificate, dated as of the
date of the Fourth Amendment to Credit Agreement, of an Authorized
Representative of
(i) the Borrower certifying
(x) as to the incumbency and signatures of the
Person or Persons authorized to execute and
deliver this Fourth Amendment to Credit Agreement
and any instruments or agreements required
hereunder,
(y) as to an attached copy of one or more
resolutions or other authorizations of the
manager of the Borrower certified by the
Authorized Representative of such manager as
being in full force and effect on the date
hereof, authorizing the execution, delivery and
performance of this Fourth Amendment to Credit
Agreement, the Term D Notes and any instruments
or agreements required hereunder, and
21
(z) that the Organizational Documents of the
Borrower have not been modified since the date on
which they were last delivered to the
Administrative Agent,
(i) of each signatory to the Ratification and
Reaffirmation certifying
(x) as to the incumbency and signatures of the
Person or Persons authorized to execute and
deliver the Ratification and Reaffirmation on
behalf of such signatory;
(y) as to an attached copy of one or more
resolutions or other authorizations of (A) the
Board of Directors certified by the Authorized
Representative of such signatory, or (B) the
manager of such signatory certified by the
Authorized Representative of such manager, as
applicable, each as being in full force and
effect on the date hereof, authorizing the
execution, delivery and performance of the
Ratification and Reaffirmation, and
(z) that the Organizational Documents of such
signatory have not been modified since the date
on which they were last delivered to the
Administrative Agent,
upon which certificate the Administrative Agent, the Syndication
Agent, the Documentation Agent and each Consenting Lender
(collectively, the "Financing Parties" may conclusively rely until it
shall have received a further certificate of an Authorized
Representative of the Borrower canceling or amending such prior
certificate.
(c) FEES. All reasonable fees and costs and expenses of
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ and other professionals employed by the
Administrative Agent and all other reasonable expenses of the
Administrative Agent in connection with the negotiation, execution
and delivery of this Fourth Amendment to Credit Agreement and the
transactions contemplated herein shall have been paid in full.
(d) SATISFACTORY LEGAL FORM. Each Financing Party and its
counsel shall have received all information, approvals, opinions,
documents or instruments as each Financing Party or its counsel may
have reasonably requested, and all documents executed or submitted
pursuant hereto by or on behalf of the Borrower shall be satisfactory
in form and substance to each Financing Party and its counsel.
(e) DEFAULT. After giving effect to this Fourth Amendment
to Credit Agreement the following statements shall be true and
correct: (i) to the best knowledge of the Borrower, no act or
condition exists which, with the giving of notice or passage of
22
time would constitute a "Default" or "Event of Default" (as
defined in the Credit Agreement, the GECC Facilities Agreement and
the Discount Note Indenture) has occurred and is continuing as of
the date hereof and (ii) no material adverse change in (A) the
financial condition, business, property, prospects or ability of
the Borrower to perform in all material respects its obligations
under any Operative Document or any of the documents evidencing
and securing the FF&E Financing to which it is a party or (B) the
financial condition, business, property, prospects and ability of
the Design/Builder, Fluor or the Contractors to perform in all
material respects their respective obligations under any Operative
Document to which it is a party has occurred since the Closing
Date.
(f) CONSENTS AND APPROVALS. All approvals and consents
required to be taken, given or obtained, as the case may be, by or
from any Governmental Instrumentality or another Person, or by or
from any trustee (including, without limitation, GECC and the
Discount Note Indenture Trustee) or holder of any indebtedness or
obligation of the Borrower, that are necessary or, in the reasonable
opinion of the Administrative Agent, advisable in connection with the
execution, delivery and performance of this Fourth Amendment to
Credit Agreement by all parties hereto, shall have been taken, given
or obtained, as the case may be, shall be in full force and effect
and the time for appeal with respect to any thereof shall have
expired (or, if an appeal shall have been taken, the same shall have
been dismissed) and shall not be subject to any pending proceedings
or appeals (administrative, judicial or otherwise) and shall be in
form and substance satisfactory to the Administrative Agent.
(g) DELIVERY OF FOURTH AMENDMENT TO CREDIT AGREEMENT, ETC.
The Borrower shall have delivered this Fourth Amendment to Credit
Agreement, the Term D Notes, and all documents required by Amendment
No. 3 and the Discount Note Indenture to all Persons entitled under
the Operative Documents to receive delivery hereof and thereof, as
the case may be, and arranged for or caused the recording and/or
filing thereof, as required.
(h) OPINIONS. The Administrative Agent shall have received
such opinions of counsel as it deems necessary, dated as of the date
of the Fourth Amendment to Credit Agreement and addressed to the
Administrative Agent, the Lenders and, if applicable, the
Disbursement Agent, which shall be in form and substance satisfactory
to the Administrative Agent.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
In order to induce each Financing Party to enter into this Fourth
Amendment to Credit Agreement, the Borrower hereby reaffirms, as of the date of
this Fourth Amendment to Credit
23
Agreement, its representations and warranties contained in Article VI of the
Credit Agreement and the Disbursement Agreement and additionally represents
and warrants unto each Financing Party as set forth in this ARTICLE V.
SECTION V.1. MATTERS PERTAINING TO THE GECC FACILITIES AGREEMENT AND
THE DISCOUNT NOTE INDENTURE.
(a) The Borrower has performed all of its obligations under
the GECC Facilities Agreement and the Discount Note Indenture.
(b) After giving effect to this Fourth Amendment to Credit
Agreement and the performance by the Borrower of its obligation to
keep the Main Project Budget In Balance, no "Default" or "Event of
Default" exists under the GECC Facilities Agreement (without giving
effect to the GECC Intercreditor Agreement) or the Discount Note
Indenture.
SECTION V.2. DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The
execution, delivery and performance by the Borrower of this Fourth Amendment to
Credit Agreement, the Term D Notes, the amendments to the other Loan Documents
and each other document executed or to be executed by it in connection with this
Fourth Amendment to Credit Agreement are within the Borrower's powers, have been
duly authorized by all necessary action, and do not
(a contravene the Borrower's Organizational Documents;
(b contravene any contractual restriction binding on or
affecting any of the Aladdin Parties and/or the London Clubs Parties;
(c contravene any court decree or order or Legal
Requirement binding on or affecting any of the Aladdin Parties and/or
the London Clubs Parties; or
(d result in, or require the creation or imposition of, any
Lien on any property of the Borrower, any of the other Aladdin
Parties, any other Person which executes and delivers documents with
respect to the Fourth Amendment to Credit Agreement in favor of the
Lenders except as expressly permitted by the Operative Documents, the
GECC Facilities Agreement, the Discount Note Indenture and other
Instruments binding on such Persons, as the case may be, and the
Financing Parties may conclusively rely on such representation and
warranty.
SECTION V.3. GOVERNMENT APPROVAL, REGULATION, ETC. No authorization
or approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or other Person is required for the
due execution, delivery or performance by the Borrower or any other Person of
this Fourth Amendment to Credit Agreement or any other document to be
24
executed by it or any other Person in connection with this Fourth Amendment
to Credit Agreement.
SECTION V.4. VALIDITY, ETC. This Fourth Amendment to Credit
Agreement constitutes, and each other document executed by the Borrower in
connection with this Fourth Amendment to Credit Agreement, on the due
execution and delivery thereof, will constitute, the legal, valid and binding
obligations of the Borrower enforceable in accordance with their respective
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors rights
generally and by general principles of equity.
SECTION V.5. LIMITATION. Except as expressly provided hereby, all
of the representations, warranties, terms, covenants and conditions of the
Credit Agreement and each other Operative Document shall remain unamended and
unwaived and shall continue to be, and shall remain, in full force and effect
in accordance with their respective terms. The amendments and modifications
set forth herein shall be limited precisely as provided for herein, and shall
not be deemed to be a waiver of, amendment of, consent to or modification of
any other term or provision of the Credit Agreement, the GECC Facilities
Agreement, any Operative Document, the Discount Note Indenture or other
Instrument referred to therein or herein, or of any transaction or further or
future action on the part of the Borrower or any other Person which would
require the consent of the Agents, the Lenders, GECC or the Discount Note
Indenture Trustee or any other Person.
SECTION V.6. OFFSETS AND DEFENSES. The Borrower has no offsets or
defenses to its obligations under the Loan Documents, the Term D Notes or the
documents evidencing and securing the FF&E Financing and no claims or
counterclaims against any of the Agents, the Lenders or the Construction
Consultant.
SECTION V.7. RELEASE BY THE BORROWER. (a) As an inducement to the
Lenders, the Administrative Agent and the Syndication Agents to enter into
this Fourth Amendment to Credit Agreement, the Borrower hereby releases and
discharges the Lenders and the Agents, and their respective successors and
assigns, and all officers, directors, employees, agents, representatives,
insurers and attorneys of each of them from all actions, counterclaims,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, executions, claims, and
demands whatsoever, in law, admiralty or equity, against the Lenders, the
Agents and/or their successors and assigns which the Borrower ever had, now
has or hereafter can, shall or may, have for, upon, or by reason of any
matter, cause or thing whatsoever from the beginning of the world to the day
of the date of this Fourth Amendment to Credit Agreement (the "Released
Claims").
(b) In order to induce the Lenders, the Administrative Agent and the
Syndication Agent to accept the release set forth herein, the Borrower
represents that:
25
(i) such release constitutes a legal, valid and binding
obligation of the Borrower, enforceable against it in accordance with
its terms. The execution and delivery of, and the performance and
compliance by the Borrower with such release will not conflict with,
or constitute on the part of the Borrower a violation or breach of,
or a default under, and will not require any authorization, consent,
approval or other action by, or any notice to, or filing with any
court or administrative body or any other Person pursuant to, any
mortgage, deed of trust, loan agreement, trust agreement or other
agreement or instrument to which the Borrower or any of its property
is subject or any laws and other governmental requirements; and
(ii) the Borrower (A) has not sold, transferred, conveyed,
abandoned or otherwise disposed of any of the Released Claims,
whether or not known, suspected or claimed that the Borrower has, had
or may have, against the Lenders, any Agent and/or any of their
successors, predecessors (including, without limitation, all
predecessors by virtue of merger) and assigns, as the case may be and
(B) has sought the advice of counsel with respect to the execution
and delivery of this Fourth Amendment to Credit Agreement and the
Borrower understands the legal implications with respect to the
release set forth herein and the other documents executed by the
Borrower in connection herewith.
(c) The Borrower hereby acknowledges that it may hereafter
discover facts in addition to or different from those which it now
knows or believes to be true with respect to the subject matter of
the release set forth herein, but that it is the Borrower's intention
to, and it does, hereby fully, finally and forever settle the
Released Claims; in furtherance of such intention, the Borrower
acknowledges that the release set forth herein shall be and remain in
effect as a full and complete release, notwithstanding the subsequent
discovery or existence of any such additional or different facts.
SECTION V.8. ATTACHMENTS TO CERTAIN PLEDGE AGREEMENTS. Attachment
1 to each of the following Pledge Agreements shall be replaced by the
corresponding Attachment 1 attached hereto after approval by the Nevada
Gaming Commission: the Holdings Pledge Agreement, the LCNI Pledge Agreement,
the ▇▇▇▇▇▇ Enterprises Pledge Agreement, the AHL Pledge Agreement, the
Enterprises Pledge Agreement and the AMH Pledge Agreement. The shares of
Capital Stock or Membership Interests listed on Item A of any Attachment 1
constitute all the shares of Capital Stock or Membership Interests which have
been issued by the Pledged Share Issuer (as defined in the applicable Pledge
Agreement) to such Pledgor (as defined in such Pledge Agreement). The
Borrower covenants and agrees to request immediately after the execution and
delivery of this Fourth Amendment to Credit Agreement that the Nevada Gaming
Commission approve the amendment of each of the aforementioned Attachments to
Pledge Agreements and to diligently and continuously prosecute to completion
such approval process.
ARTICLE VI
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MISCELLANEOUS PROVISIONS
SECTION VI.1. RATIFICATION OF AND REFERENCES TO THE CREDIT AGREEMENT.
This Fourth Amendment to Credit Agreement shall be deemed to be an amendment to
the Credit Agreement, and the Credit Agreement, as amended by this Fourth
Amendment to Credit Agreement, shall continue in full force and effect and is
hereby ratified, approved and confirmed in each and every respect. All
references to the Credit Agreement in any other document, instrument, agreement
or writing shall hereafter be deemed to refer to the Credit Agreement, as
amended by this Fourth Amendment to Credit Agreement.
SECTION VI.2. HEADINGS. The various headings of this Fourth Amendment
to Credit Agreement are inserted for convenience only and shall not affect the
meaning or interpretation of this Fourth Amendment to Credit Agreement or any
provisions hereof.
SECTION VI.3. APPLICABLE LAW. THIS FOURTH AMENDMENT TO CREDIT
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS FOURTH
AMENDMENT TO CREDIT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING ALL OTHER
CHOICE OF LAW AND CONFLICTS OF LAW RULES OF SUCH STATE.
SECTION VI.4. CROSS-REFERENCES. References in this Fourth
Amendment to Credit Agreement to any Article or Section are, unless otherwise
specified, to such Article or Section of this Fourth Amendment to Credit
Agreement.
SECTION VI.5. LOAN DOCUMENT. This Fourth Amendment to Credit
Agreement is a Loan Document executed pursuant to the Credit Agreement and
shall (unless otherwise expressly indicated therein) be construed,
administered and applied in accordance with the terms and provisions of the
Credit Agreement.
SECTION VI.6. SUCCESSORS AND ASSIGNS. This Fourth Amendment to
Credit Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
SECTION VI.7. COUNTERPARTS. This Fourth Amendment to Credit
Agreement may be executed by the parties hereto in any number of counterparts
and on separate counterparts, each of which shall be an original but all of
which together shall constitute one and the same instrument.
SECTION VI.8. ANNEX; SCHEDULES; EXHIBITS. Annexed to this Fourth
Amendment to Credit Agreement are the following:
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ANNEX I Term D Lenders
SCHEDULE II Amortization (Replaces Schedule II to the CA)
SCHEDULE III Mandatory Payments (Replaces Schedule III to the CA)
SCHEDULE IV Certificates of Occupancy for Zones
SCHEDULE V Schedule of Contracts and Continuation Agreements
SCHEDULE VI Specified Property and the Gaming Equipment Funded by GECC
SCHEDULE VII Specified Property and the Gaming Equipment to be Funded by
GECC
EXHIBIT A-5 Form of Term D Note
EXHIBIT X-2 Main Project Budget
[ATTACHMENT 1 to the Holdings Pledge Agreement
ATTACHMENT 1 to the LCNI Pledge Agreement
ATTACHMENT 1 to the ▇▇▇▇▇▇ Enterprises Pledge Agreement
ATTACHMENT 1 to the AHL Pledge Agreement
ATTACHMENT 1 to the Enterprises Pledge Agreement
ATTACHMENT 1 to the Borrower Pledge Agreement
ATTACHMENT 1 to the AMH Pledge Agreement]
IN WITNESS WHEREOF, the parties hereto have executed this
Fourth Amendment to Credit Agreement as of the day and year first above written.
ALADDIN GAMING, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
THE BANK OF NOVA SCOTIA, as the
Administrative Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL
28
CORPORATION, as the Syndication Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
29
Schedule V
Schedule of Contracts and Continuation Agreements
(a "Contract for Construction for a Guaranteed Maximum Price," dated
February 18, 2000, between Aladdin Gaming, LLC and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Co.;
(b "Contract for Construction for a Guaranteed Maximum Price," dated February
7, 2000, between Aladdin Gaming, LLC and Valley Crest Landscaping, Inc.;
(c "Contract for Construction for a Guaranteed Maximum Price," dated January
24, 2000, between Aladdin Gaming, LLC and ▇▇▇▇▇-▇▇▇▇▇▇ & Associates
Construction Co.;
(d "Contract Agreement," dated January 26, 2000 between Aladdin Gaming, LLC
and Dynalectric Company of Nevada;
(e "Contract for Construction for a Guaranteed Maximum Price," dated February
7, 2000, between Aladdin Gaming, LLC and ▇▇▇▇▇▇ International Corp.
30