EXHIBIT 10.03
AGREEMENT OF AMENDMENT
THIS AGREEMENT OF AMENDMENT (this "Amendment") is made as of the 2nd day of
June, 2000, among GENERAL ELECTRIC CAPITAL CORPORATION, FOR ITSELF AND AS AGENT
FOR CERTAIN PARTICIPANTS ("GE Capital"), GMAC COMMERCIAL MORTGAGE CORPORATION
("GMAC CMC"), and ALADDIN GAMING, LLC ("Aladdin Gaming").
GE Capital and Aladdin Gaming have heretofore executed that certain
Facilities Agreement dated as of June 26, 1998, as amended (the "Facilities
Agreement"), and pursuant thereto that certain Master Lease Agreement dated as
of June 26, 1998 (the "Lease Agreement"; and together with the Facilities
Agreement being sometimes hereinafter collectively referred to as the
"Agreements"). Capitalized terms used herein without definition shall have the
meaning given them in the Agreements.
GE Capital has heretofore assigned to GMAC CMC certain of its right, title,
interest and obligations pursuant to the Agreements.
The parties desire to amend the Lease Agreement and to further amend the
Facilities Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties agree as follows:
SECTION 1. AMENDMENTS TO FACILITIES AGREEMENT. The Facilities Agreement is
amended as follows:
Section 1.1. Exhibit No. 2 attached to the Facilities Agreement is
deleted and Exhibit No. 2 to Facilities Agreement attached hereto is substituted
in lieu thereof and incorporated therein as fully as if originally set forth
therein.
Section 1.2. The following sentence shall be added to the end of
Section 11(e) of the Facilities Agreement:
"Notwithstanding the foregoing, Aladdin Gaming may make an Investment
in any wholly-owned Subsidiary which is created by Aladdin Gaming for
the purpose of owning and controlling bank, deposit or any other
accounts at any financial institution permitted under the Senior
Credit Agreement or which otherwise are created for purposes of
Aladdin Gaming's operation of the Casino so long as the Administrative
Agent has consented thereto."
Section 1.3. Section 11(h) of the Facilities Agreement is deleted and
the following substituted in lieu thereof:
"Aladdin Gaming will not, and will not permit any Subsidiary to, enter
into at any time any arrangement (other than the financing pursuant
hereto) which involves the leasing by Aladdin Gaming from any lessor
of any real or personal property (or any interest therein), which does
not create a Capitalized Lease Liability and except arrangements
which, together with all other such arrangements which shall then be
in effect, will not require the
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payment of an aggregate amount in any Fiscal Year of rentals by
Aladdin Gaming or any Subsidiary in excess of, in the case of any such
arrangements entered into prior to the date which is ninety (90) days
after the Opening Date, $2,000,000 per annum and, in the case of any
such arrangement entered into on or subsequent to the date which is
ninety (90) days after the Opening Date, $5,000,000 per annum."
SECTION 2. AMENDMENTS TO LEASE AGREEMENT. The Lease Agreement is hereby
amended as follows:
Section 2.1. The following is added to the end of Section 1(b) of the
Lease:
"The obligation of Lessor to purchase any Unit of Equipment from
Lessee and to lease the same to Lessee under any Schedule shall be
subject to satisfaction of the conditions specified above in this
Section 1(b) and to receipt by Lessor, prior to the Lease Commencement
Date (with respect to such Unit of Equipment), of each of the
following documents in form and substance satisfactory to Lessor: (v)
a Bill of Sale, in substantially the form attached hereto as Exhibit
No. 3, with respect to such Unit of Equipment, duly executed by
Lessee, (vi) a certified true copy of the invoice from the Supplier
with respect to such Unit of Equipment, and (vii) such documents and
instruments as reasonably may be required by Lessor evidencing the
termination of any security interest in such Unit of Equipment then
held by any third party."
Section 2.2. Exhibit No. 3 to Master Lease Agreement attached hereto
is incorporated in the Lease as fully as if originally set forth therein and
made a part thereof.
SECTION 3. CONSENT TO AMENDMENTS AND CONFIRMATION.
Section 3.1. GE Capital and GMAC CMC hereby consent to the amendments
of the Senior Credit Agreement and the Disbursement Agreement specified in
Section 2.1 of that certain Third Amendment to Senior Credit Agreement dated as
of May ___, 2000 (the "Third Amendment"), by and among Aladdin Gaming, the
various financial institutions as are or may become parties thereto, The Bank of
Nova Scotia, as Administrative Agent for the Lenders (the "Administrative
Agent"), Merrill Lynch Capital Corporation, as Syndication Agent for the
Lenders, and CIBC Oppenheimer Corp., as Documentation Agent for the Lenders.
Section 3.2. GE Capital and GMAC CMC hereby confirm and agree that,
upon delivery to the Project of Gaming Equipment or Specified Equipment as to
which Advances to fund deposits or progress payments have been made pursuant to
the Senior Credit Agreement, all amounts advanced to Aladdin Gaming from the
Loans to fund such deposits or to make such progress payments shall be advanced
on behalf of Aladdin Gaming to the Guaranty Deposit Account and the balance due
with respect to such Gaming Equipment or Specified Equipment shall be funded in
full under the Agreements, subject to and in accordance with the terms of the
Agreements.
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SECTION 4. CONDITIONS TO EFFECTIVENESS. This Amendment shall be and become
effective on the date (the "Amendment Date") on which each of the following
conditions precedent shall have been satisfied.
(a) EXECUTION OF DOCUMENTS. GE Capital and GMAC CMC shall have
received counterparts of (i) this Amendment executed by Authorized
Representatives of Aladdin Gaming, the Administrative Agent, GE Capital and GMAC
CMC, (ii) the Third Amendment executed by Authorized Representatives of the
parties thereto, (iii) the Ratification of the Completion Guaranty executed by
Authorized Representatives of the parties thereto, and (iv) the First Amendment
to Disbursement Agreement executed by Authorized Representatives of the Parties
thereto.
(b) INCUMBENCY, ETC. GE Capital and GMAC CMC shall have received a
certificate, dated the Amendment Date, of an Authorized Representative of
Aladdin Gaming certifying:
(i) as to the incumbency and signatures of the Person or Persons
authorized to execute and deliver this Amendment and any instruments
or agreements required hereunder,
(ii) as to an attached copy of one or more resolutions or other
authorizations of the manager of Aladdin Gaming 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 Amendment and any instruments or agreements
required hereunder, and
(iii) that the Organizational Documents of Aladdin Gaming have
not been modified other than by the letter agreement dated December
10, 1999, a true, correct and complete copy of which shall have been
delivered to GE Capital and GMAC CMC,
upon which certificate GE Capital and GMAC CMC and Credit Suisse First Boston
Mortgage Capital, LLC (collectively, the "FINANCING PARTIES") may conclusively
rely until it shall have received a further certificate of an Authorized
Representative of Aladdin Gaming cancelling or amending such prior certificate.
(c) FEES. All reasonable fees and costs and expenses of Ober, Kaler,
Grimes & Shriver and other professionals employed by the Financing Parties and
all other reasonable expenses of the Financing Parties in connection with the
negotiation, execution and delivery of this Amendment 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 Aladdin Gaming shall be satisfactory in form and substance to each
Financing Party and its counsel.
(e) DEFAULT. After giving effect to this Amendment the following
statements shall be true and correct: (i) to the best knowledge of Aladdin
Gaming, no act or condition exists which, with the giving of notice or passage
of time would constitute a "DEFAULT" or "EVENT OF
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DEFAULT" (as defined in the Senior Credit Agreement or in the Agreements 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 Aladdin Gaming to perform in all material respects its obligations under any
Operative Document, or (B) the financial condition, business, property,
prospects and ability of any other Aladdin Party or, to the best knowledge of
Aladdin Gaming, LCNI, the Design/Builder or Fluor to perform in all material
respects its 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, the Financing Parties and the Administrative Agent for itself and on
behalf of the Lenders and the Discount Note Indenture Trustee) or holder of any
indebtedness or obligation of Aladdin Gaming, that are necessary or, in the
reasonable opinion of GE Capital and GMAC CMC, advisable in connection with the
execution, delivery and performance of this Amendment 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 GE Capital and GMAC CMC.
(g) DELIVERY OF AMENDMENT. Aladdin Gaming shall have delivered this
Amendment to all Persons entitled under the Operative Documents to receive
delivery hereof.
(h) OPINIONS. GE Capital and GMAC CMC shall have received such
opinions of counsel as it deems necessary, dated the Amendment Date and
addressed to the Financing Parties, which shall be in form and substance
satisfactory to the financing parties.
SECTION 5. REPRESENTATIONS AND WARRANTIES. In order to induce each
Financing Party to enter into this Amendment, Aladdin Gaming hereby reaffirms,
as of the Amendment Date, its representations and warranties contained in
Section 8 of the Facilities Agreement and additionally represents and warrants
unto each Financing Party as set forth in this Section 5.
Section 5.1. MATTERS PERTAINING TO THE FACILITIES AGREEMENT.
(a) Aladdin Gaming has not directly or indirectly amended (by Change
Order or otherwise), modified (by Change Order or otherwise), allocated,
reallocated or supplemented or permitted or consented to the amendment (by
Change Order or otherwise), modification (by Change Order or otherwise)
allocation, reallocation or supplementation of the Construction Benchmark
Schedule in any manner which would extend the Completion Date.
(b) Prior to and after giving effect to this Amendment, no "DEFAULT"
or "EVENT OF DEFAULT" exists under the Senior Credit Agreement or the Agreements
(without giving effect to the Intercreditor Agreement).
Section 5.2. DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The execution,
delivery and performance by Aladdin Gaming of this Amendment and each other
document executed or to be executed by it in connection with this Amendment are
within Aladdin Gaming's powers, have been duly authorized by all necessary
action, and do not:
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(a) contravene Aladdin Gaming's Organizational Documents;
(b) contravene any contractual restriction binding on or affecting
Aladdin Gaming;
(c) contravene any court decree or order or Legal Requirement binding
on or affecting Aladdin Gaming; or
(d) result in, or require the creation or imposition of, any Lien on
any of Aladdin Gaming's properties except as expressly contemplated by the
Operative Documents,
and the Financing Parties may conclusively rely on such representations and
warranties.
Section 5.3. 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 Aladdin Gaming of this Amendment or any other
document to be executed by it in connection with this Amendment.
Section 5.4. VALIDITY, ETC. This Amendment constitutes, and each other
document executed by Aladdin Gaming in connection with this Amendment, on the
due execution and delivery thereof, will constitute, the legal, valid and
binding obligations of Aladdin Gaming 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 5.5. LIMITATION. Except as expressly provided hereby, all of
the representations, warranties, terms, covenants and conditions of the
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, modifications and
consents 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 Agreement, the Agreement, any Operative
Document, or other Instrument referred to therein or herein, or of any
transaction or further or future action on the part of Aladdin Gaming or any
other Person which would require the consent of the Financing Parties, the
Administrative Agent, the Lenders, GECC or the Discount Note Indenture Trustee.
Section 5.6. OFFSETS AND DEFENSES. Aladdin Gaming has no offsets or
defenses to its obligations under the Operative Documents or the documents
evidencing and securing the FF&E Financing and no claims or counterclaims
against any of the Financing Parties, the Administrative Agent, the Lenders or
the Construction Consultant.
Section 6.1. RATIFICATION OF AND REFERENCES TO THE AGREEMENT. This
Amendment shall be deemed to be an amendment to the Agreements, and the
Agreements, as amended by this Amendment, shall continue in full force and
effect and are hereby ratified, approved and confirmed in each and every
respect. All references to the Agreements in any other document, instrument,
agreement or writing shall hereafter be deemed to refer to the Agreements, as
amended by this Amendment.
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Section 6.2. HEADINGS. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or any provisions hereof.
Section 6.3. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE.
Section 6.4. CROSS-REFERENCES. References in this Amendment to any
Section are, unless otherwise specified, to such Section of this Amendment.
Section 6.5. OPERATIVE DOCUMENT. This Amendment is an Operative
Document executed pursuant to the Facilities Agreement and shall (unless
otherwise expressly indicated therein) be construed, administered and applied in
accordance with the terms and provisions of the Facilities Agreement.
Section 6.6. SUCCESSORS AND ASSIGNS. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
Section 6.7. COUNTERPARTS. This Amendment 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 6.8. RESERVATION OF RIGHTS. Aladdin Gaming agrees that neither
this Amendment nor the making of any Funding and GE Capital and GMAC CMC's
consent thereto shall constitute (w) an approval of all or any portion of any
request for Funding, (x) a waiver or forbearance by GE Capital and GMAC CMC
under any of the Operative Documents, (y) the acceptance by GE Capital and GMAC
CMC of any course of conduct by Aladdin Gaming, the Completion Guarantors or any
of the Aladdin Parties or the London Clubs Parties (including, without
limitation, matters relating to transfers of direct and indirect interests in
Holdings between the members thereof), or (z) an agreement by GE Capital and
GMAC CMC to amend any of the Operative Documents or waive any of the provisions
thereof without a corresponding amendment of the Senior Credit Agreement or
waiver from the Administrative Agent on behalf of the Lenders, as the case may
be. Aladdin Gaming further agrees that GE Capital and GMAC CMC reserve all
rights, remedies and options under the Operative Documents to require Aladdin
Gaming to satisfy in all respects the conditions relating to each Funding and
perform all of its obligations under the Operative Documents which are then due
and owing or are susceptible of performance, as the case may be.
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IN WITNESS WHEREOF, this Agreement of Amendment has been duly executed
as of the date first above written.
ALADDIN GAMING, LLC GENERAL ELECTRIC CAPITAL
CORPORATION, FOR ITSELF AND AS
AGENT FOR CERTAIN PARTICIPANTS
By: /s/ RICHARD J. GOEGLEIN By: /s/ TIMOTHY S. SHANAHAN
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Name: Richard J. Goeglein Name: Timothy S. Shanahan
Title: President & Chief Executive Officer Title: Vice President
GMAC COMMERCIAL MORTGAGE
CORPORATION
By: /s/ JON S. WRIGHT
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Name: John S. Wright
Title: Senior Vice President
PURSUANT TO SECTION 5.1(c) OF THAT CERTAIN INTERCREDITOR AGREEMENT DATED AS OF
JUNE 30, 1998, BY AND AMONG THE BANK OF NOVA SCOTIA, AS ADMINISTRATIVE AGENT,
GENERAL ELECTRIC CAPITAL CORPORATION, FOR ITSELF AND AS AGENT FOR CERTAIN
PARTICIPANTS, AND ALADDIN GAMING, LLC, THE UNDERSIGNED CONSENTS TO THE EXECUTION
OF THE FOREGOING AMENDMENT BY ALADDIN GAMING, LLC.
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By:
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Name:
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Title:
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