EXHIBIT 10.04
AGREEMENT OF AMENDMENT NO. 3
THIS AGREEMENT OF AMENDMENT NO. 3 (this "Amendment") is made as of
the ______ day of July, 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, as amended (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 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. Notwithstanding anything to the contrary set
forth in the introductory language of Section 11(d), for purposes of clause
(1), clause (2), clause (4), and clause (5) 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 11(d) shall continue to apply to clause (3) of said
Section.
SECTION 2. CONSENT TO AMENDMENTS AND CONFIRMATION.
Section 2.1. GE Capital and GMAC CMC hereby consent to the
amendments of the Senior Credit Agreement specified in Article III of that
certain Fourth Amendment to Senior Credit Agreement dated as of the date
hereof (the "Fourth 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 2.2. GE Capital and GMAC CMC hereby confirm and
agree that, upon delivery to the Project of the Gaming Equipment and the
Specified Equipment listed on Schedule A attached hereto, the Capitalized
Lessor's Cost of such Specified Equipment and the aggregate acquisition cost
of such Gaming Equipment (which, in the aggregate, shall be no less than
$37,742,620.04) shall be funded in full under the Agreements on or before
September 30, 2000 (of which no less than $30,000,000.00 shall be funded on
or before August 30, 2000, with the balance being funded on or before
September 30, 2000), subject to and in accordance with the terms of the
Agreements.
SECTION 3. CONDITIONS TO EFFECTIVENESS. This Amendment shall be
and become effective on the date (the "Effective Date") on which each of the
following conditions precedent shall have been satisfied.
Section 3.1. 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 Fourth Amendment executed by Authorized Representatives of
the parties thereto; (iii) the Ratification and Reaffirmation (as defined in
the Senior Credit Agreement) of each of the parties thereto; (iv) a
certificate from the Architect that the design of the Main Project and the
Parking Garage is complete (subject to such variations approved by GE Capital
and GMAC CAC in their sole discretion), such design
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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 B hereto have been issued by the date for such temporary
certificate of occupancy listed on said schedule; (v) a certified copy of
each of the Contracts listed on Schedule C hereto together with a
continuation agreement from the Contractor thereunder in form and content
satisfactory to GE Capital and GMAC CMC in their sole discretion; (vi) a
general release substantially in the form of the release set forth in Section
4.7 of this Amendment in favor of GE Capital, GMAC CAC and Credit Suisse
First Boston Mortgage Capital, LLC (collectively, the "Financing Parties")
from each of the Aladdin Parties, the London Clubs Parties and all other
Persons as required by GE Capital and GMAC CAC through the Effective Date of
this Amendment; and (vii) delivery of such other items required by GE Capital
and GMAC CMC.
Section 3.2. INCUMBENCY, ETC. GE Capital and GMAC CMC
shall have received a certificate, dated as of the date of this Amendment,
of an Authorized Representative of
(i) Aladdin Gaming certifying:
(x) 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,
(y) 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
(z) 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,
(ii) 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 each signatory certified by the
Authorized Representative of such manager, as applicable, each
as being in full force and effect on the date hereof,
authoring 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 GE Capital and GMAC CMC,
upon which certificates the Financing Parties may conclusively rely until
they shall have received a further certificate of an Authorized
Representative of Aladdin Gaming canceling or amending such prior certificate.
Section 3.3. 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.
Section 3.4. 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.
Section 3.5. DEFAULT. After giving effect to this Amendment
and the Fourth 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 DEFAULT" (as
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defined in the Senior Credit Agreement, the Discount Note Indenture, 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 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.
Section 3.6. 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.
Section 3.7. DELIVERY OF AMENDMENT. Aladdin Gaming shall
have delivered this Amendment to all Persons entitled under the Operative
Documents to receive delivery hereof.
Section 3.8. OPINIONS. GE Capital and GMAC CMC shall have
received such opinions of counsel as it deems necessary, dated as of the date
of this Amendment and addressed to the Financing Parties, which shall be in
form and substance satisfactory to the Financing Parties.
SECTION 4. REPRESENTATIONS AND WARRANTIES. In order to induce each
Financing Party to enter into this Amendment, Aladdin Gaming hereby
reaffirms, as of the Effective 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 4.
Section 4.1. MATTERS PERTAINING TO THE FACILITIES AGREEMENT
AND THE DISCOUNT NOTE INDENTURE.
(a) Aladdin Gaming has performed all of its obligations
under the Senior Credit Agreement and the Discount Note Indenture.
(b) After giving effect to this Amendment and the Fourth
Amendment and the performance by Aladdin Gaming of its obligation to keep the
Main Project Budget In Balance, no "DEFAULT" or "EVENT OF DEFAULT" exists
under the Senior Credit Agreement or the Agreements (without giving effect to
the Intercreditor Agreement) or the Discount Note Indenture.
Section 4.2. 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:
(a) contravene Aladdin Gaming'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 Aladdin Gaming, any of the other Aladdin
Parties, any other Person which executes and delivers documents with
respect to this Amendment in favor of the Financing Parties except as
expressly permitted by the Operative Documents, the Senior Credit
Agreement, the Discount Note Indenture and other Instruments binding on
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such Persons, as the case may be,
and the Financing Parties may conclusively rely on such representations and
warranties.
Section 4.3. 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 or
any other Person of this Amendment or any other document to be executed by it
in connection with this Amendment.
Section 4.4. 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 4.5. 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 Agreements,
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 4.6. 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 4.7. RELEASE BY ALADDIN GAMING. (a) As an
inducement to GE Capital and GMAC CMC to enter into this Agreement, Aladdin
Gaming hereby releases and discharges the Financing Parties 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, which against the Financing Parties and/or their successors and
assigns Aladdin Gaming 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 Release (the "Released
Claims").
(b) In order to induce the Financing Parties to accept the
release set forth herein, Aladdin Gaming represents that:
(i) such release constitutes a legal, valid and
binding obligation of Aladdin Gaming, enforceable against it
in accordance with its terms. The execution and delivery of,
and the performance and compliance by Aladdin Gaming with such
release will not conflict with, or constitute on the part of
Aladdin Gaming 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 Person pursuant to, any mortgage,
deed of trust, loan agreement, trust agreement or other
agreement or instrument to which Aladdin Gaming or any of its
property is subject or any laws and other governmental
requirements; and
(ii) Aladdin Gaming (A) has not sold, transferred,
conveyed, abandoned or otherwise disposed of any of the
Released Claims, whether or not known, suspected or claimed
that Aladdin Gaming has, had or may have, against the
Financing Parties and/or any 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
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delivery of this Amendment and Aladdin Gaming understands the
legal implications with respect to the release set forth
herein and the other documents executed by Aladdin Gaming in
connection herewith.
(c) Aladdin Gaming 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 Aladdin Gaming's intention to, and
it does, hereby fully, finally and forever settle the Released Claims; in
furtherance of such intention, Aladdin Gaming 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 5. MISCELLANEOUS.
Section 5.1. 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.
Section 5.2. 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 5.3. 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 5.4. CROSS-REFERENCES. References in this Amendment
to any Section are, unless otherwise specified, to such Section of this
Amendment.
Section 5.5. 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 5.6. 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 5.7. 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 5.8. 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 either before or after the date hereof 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 other
Person, 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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Section 5.9. SCHEDULES. Annexed to this Amendment are the
following:
Schedule A Specified Property and the Gaming Equipment
to be Funded by the Financing Parties
Schedule B Certificates of Occupancy for Zones
Schedule C Schedule of Contracts and Continuation
Agreements
IN WITNESS WHEREOF, this Agreement of Amendment No. 3 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/ THOMAS A. LETTERO By: /s/ TIMOTHY S. SHANAHAN
------------------------------- ------------------------------
Name: Thomas A. Lettero Name: Timothy S. Shanahan
Title: Senior Vice President Title: Vice President
and Chief Financial Officer
GMAC COMMERCIAL MORTGAGE
CORPORATION
By: /s/ JOHN S. WRIGHT
------------------------------
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: /s/ ALAN PENDERGAST
------------------------------
Name: Alan Pendergast
Title: Managing Director
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SCHEDULE A
Specified Property and the Gaming Equipment
to be Funded by the Financing Parties
i
SCHEDULE B
Certificates of Occupancy for Zones
ii
SCHEDULE C
Schedule of Contracts and Continuation Agreements
(a) "Contract for Construction for a Guaranteed Maximum Price,"
dated February 18, 2000, between Aladdin Gaming, LLC and George M. Raymond 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 Korte-Bellew &
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 Taylor International
Corp.
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