SUBSIDIARY GUARANTY
THIS SUBSIDIARY GUARANTY, dated as of February 26, 1998 (this
"GUARANTY") and granted by each of the guarantors listed on the signature pages
hereof (the "GUARANTORS"), in favor of State Street Bank and Trust Company (the
"Discount Note Indenture Trustee"), for the benefit of the Noteholders (as
hereinafter defined) and their respective successors, transferees and assigns.
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement, dated as of even date
herewith (together with all amendments and other modifications, if any, from
time to time thereafter made thereto, the "CREDIT AGREEMENT"), among Aladdin
Gaming, LLC, a Nevada limited-liability company (the "BORROWER"), the various
lending institutions (individually a "LENDER" and collectively the "LENDERS") as
are, or may from time to time become, parties thereto and The Bank of Nova
Scotia ("Scotiabank") as Administrative Agent for the Lenders, Merrill Lynch
Capital Corporation ("Merrill Lynch") as the Syndication Agent for the Lenders,
CIBC Oppenheimer Corp., as the Documentation Agent for the Lenders, and
Scotiabank and Merrill as Arrangers, the Lenders have extended Commitments to
make Loans to the Borrower and to issue Letters of Credit for the account of the
Borrower; and
WHEREAS, the Discount Note Indenture Trustee, Aladdin Gaming Holdings, LLC
and Aladdin Capital Corp. have entered into an indenture (the "INDENTURE") dated
as of even date herewith; and
WHEREAS, certain 131/2 % Senior Discount Notes due 2010 (the "Discount
Notes") will be issued pursuant to the Indenture; and
WHEREAS, as Aladdin Bazaar Holdings, LLC, a Nevada limited-liability
company ("ABH"), London Clubs International PLC, a company registered in England
and Wales under company no. 2862479 ("LCI") and the Trust under Article Sixth
U/W/O Sigmund Sommer (the "TRUST"; the Trust, ABH and LCI are collectively
called the "NOTEHOLDER COMPLETION GUARANTORS") have agreed to provide certain
undertakings for the benefit of the Discount Note Indenture Trustee pursuant to
a Guaranty of Performance and Completion, dated as of even date herewith
(together with all amendments and other modifications, if any, from time to time
thereafter made thereto, the "NOTEHOLDER COMPLETION GUARANTY"); and
WHEREAS, as the Guarantors are required to execute and deliver this
Guaranty of the obligations of LCI under the Noteholder Completion Guaranty; and
WHEREAS, the Guarantors have duly authorized the execution, delivery
and performance of this Guaranty; and
WHEREAS, it is in the best interest of the Guarantors to execute this
Guaranty inasmuch as the Guarantors will derive substantial direct and indirect
benefits from the transactions contemplated hereby.
NOW THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the Guarantors agree, in favor of the Discount
Note Indenture Trustee for the benefit of the Noteholders, as follows:
1. DEFINITIONS. Capitalized terms used herein but not otherwise defined shall
have the meanings assigned thereto in Appendix A attached hereto. As a used
herein, the following terms have the meanings set forth below.
"MATERIAL ADVERSE EFFECT" means, as the context may require, (i) a
materially adverse effect on the ability of a Guarantor to perform in all
material respects its obligations hereunder or (ii) irrespective of the
effect on such Guarantor or if the ability of any Guarantor to perform any
obligation is not at issue, a material impairment of the validity or
enforceability of, or a material impairment of the rights, remedies or
benefits available to the Discount Note Indenture Trustee under this
Guaranty.
"NOTEHOLDER" means the duly registered holder of a Discount Note.
2. GUARANTY.
2A. OBLIGATIONS GUARANTEED. In consideration of the Noteholders entering
into and performing their obligations under or in connection with the Indenture
(a copy of which each Guarantor acknowledges receiving), the Guarantors hereby
jointly and severally guarantee, irrevocably, absolutely and unconditionally,
the due, full and prompt payment in the manner specified in the Noteholder
Completion Guaranty of any and all obligations, indebtedness or liabilities
(including fees and out of pocket expenses) now or hereafter due and payable by
LCI under the Noteholder Completion Guaranty, any and all other obligations,
indebtedness or liabilities now or hereafter incurred by LCI pursuant to any
waiver, modification,
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amendment or change of any provision of the Noteholder Completion Guaranty and
all reasonable attorneys' fees, costs and expenses of collection incurred in
connection therewith and in connection with the enforcement of this Guaranty,
including without limitation fees, costs and expenses incurred in any insolvency
or bankruptcy case or proceeding and (b) the due, prompt and faithful
performance of, and compliance with, all other undertakings of LCI contained in
the Noteholder Completion Guaranty.
2B. CHARACTER OF GUARANTY. This Guaranty constitutes a primary obligation of
each Guarantor, is a guaranty of payment and not a guaranty of collection and,
accordingly, the Guarantors waive any right to require that any action be
brought against LCI or any other Person or to require that resort be had to any
direct or indirect security. The Discount Note Indenture Trustee may, at its
option, proceed against the Guarantors, or any of them, in the first instance to
collect money or otherwise enforce the Noteholder Completion Guaranty, the
payment and performance of which is guaranteed hereby, whether or not there
exists an event of default, without first proceeding against LCI or any other
Person, and without first resorting to any direct or indirect security or to any
other remedies, including, by way of example but not of limitation, any right of
set-off at the same or at different times, as the Discount Note Indenture
Trustee may deem advisable, and the liability of the Guarantors hereunder shall
in no way be affected or impaired by any acceptance by the Discount Note
Indenture Trustee of any direct or indirect security for, or other guarantees
of, any indebtedness, liability or obligation of LCI, or by any failure, delay,
neglect or omission by the Discount Note Indenture Trustee to realize upon or
protect any such indebtedness, liability or obligation of LCI, or by any
failure, delay, neglect or admission by the Discount Note Indenture Trustee to
realize upon or protect any such indebtedness, liability or obligation, or any
notes or other instruments evidencing the same or any direct or indirect
security therefore or by any approval, consent, waiver, or other action taken,
or omitted to be taken, by the Discount Note Indenture Trustee. In the event
that the Discount Note Indenture Trustee is required to repay or return any
amount previously paid to it, the payment of which amount is guaranteed under
the provisions hereof, then, immediately upon such repayment or return, this
Guaranty shall be reinstated with respect to such amount, in full force and
effect, as though such payment to such Person had not been made.
2C. PARTICULAR AGREEMENTS BY THE GUARANTORS. The Guarantors hereby agree that
the Discount Note Indenture Trustee from time to time, before or after any
default by LCI, with or without any further notice to or assent from the
Guarantors
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may, without in any manner affecting the liability of the Guarantors, to the
full extent permitted by law and upon such terms and conditions as the Discount
Note Indenture Trustee may agree to: extend in whole or in part (by renewal or
otherwise), modify, change, compromise or release any indebtedness, liability or
obligation of LCI or any other Person under the Noteholder Completion Guaranty
or of any other Person secondarily or otherwise liable for any indebtedness,
liability or obligation of LCI or any other such Person, or waive any default
with respect thereto, or waive, modify, amend or change any provision of the
Noteholder Completion Guaranty; sell, release, surrender, modify, impair,
exchange, substitute or extend the duration or the time for the performance or
payment of any and all property and rights of any nature and from whomsoever
received, held by, or on behalf of, the Discount Note Indenture Trustee as
direct or indirect security for the payment or performance of any indebtedness,
liability or obligation of LCI, or of any other Person primarily or secondarily
or otherwise liable for any indebtedness, liability or obligation under the
Noteholder Completion Guaranty; and settle, adjust or compromise any claim of
the Discount Note Indenture Trustee against LCI or any other Person primarily or
secondarily or otherwise liable for any indebtedness, liability of obligation
under the Noteholder Completion Guaranty. The Guarantors hereby ratify and
confirm any such extension, renewal, change, release, waiver, surrender,
exchange, modification, amendment, impairment, substitution, settlement,
adjustment or compromise and agree that the same shall be binding upon the
Guarantors, and hereby waive any and all defenses, counterclaims or offsets
which the Guarantors might or could have by reason thereof, it being understood
that the Guarantors shall at all times be bound by this Guaranty and remain
liable to the Discount Note Indenture Trustee hereunder to the extent that any
obligation of LCI to the Discount Note Indenture Trustee under the Noteholder
Completion Guaranty, or any obligation of the Guarantors to the Discount Note
Indenture Trustee hereunder, shall remain outstanding.
2D. WAIVER BY GUARANTORS. The Guarantors hereby unconditionally waive:
notice of acceptance of this Guaranty by the Discount Note Indenture Trustee or
of the creation, renewal or accrual of any liability of LCI, present or future,
of the reliance of the Discount Note Indenture Trustee upon this Guaranty (it
being understood that every indebtedness, liability and obligation of LCI to the
Discount Note Indenture Trustee created pursuant to the Noteholder Completion
Guaranty shall conclusively be presumed to have been created, contracted or
incurred in reliance upon the execution of this Guaranty); demand of payment by
the Discount Note Indenture Trustee from LCI or any other Person indebted in any
manner on or for any of the indebtedness, liabilities or obligations hereby
guaranteed; presentment for payment by the Discount Note Indenture Trustee of
any
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instrument of LCI or any other Person, protest thereof, and notice of its
dishonor to any party hereto and to the Guarantors; notice of any breach or
default by LCI with respect to any of its obligations under the Noteholder
Completion Guaranty, or any other notice that may be required, by statute, rule
of law or otherwise, to preserve the rights of the Discount Note Indenture
Trustee against any of the Guarantors; any right to the enforcement, assertion,
exercise or exhaustion by the Discount Note Indenture Trustee of any right,
power, privilege or remedy conferred in the Noteholder Completion Guaranty or
otherwise; any requirement of diligence on the part of the Discount Note
Indenture Trustee; any requirement to mitigate damages resulting from any
default under the Noteholder Completion Guaranty; any notice of any transfer,
exchange or other disposition by the Discount Note Indenture Trustee of any
right, title or interest in or to any Discount Note; any release of any
Guarantor from its obligations hereunder resulting from any loss by it of its
rights of subrogation hereunder and any other circumstance whatsoever which
might otherwise constitute a legal or equitable discharge, release or defense of
a guarantor or surety or which might otherwise limit recourse against any
Guarantor.
2E. EXPENSES. The Guarantors agree to pay and save the Discount Note Indenture
Trustee harmless against any liability for the payment of all reasonable
out-of-pocket expenses arising in connection with the transactions contemplated
hereby, including all attorneys' fees, costs and expenses of collection
incurred in connection therewith and in evaluation in connection with any
controversy or potential controversy and in enforcing its rights and remedies
under this Guaranty, any registration tax incurred in connection with the
registration or filing of the Guaranty or any judgment with respect thereto, and
all document production and duplication charges and the fees and expenses of any
special counsel engaged by the Discount Note Indenture Trustee in connection
with any subsequent proposed modification of, or proposed waiver or consent
under, this Guaranty, whether or not such proposed modification shall be
effected, or proposed waiver or consent granted.
3. CHARACTER OF OBLIGATIONS OF THE GUARANTORS.
3A. IRREVOCABILITY. The obligations of the Guarantors under this Guaranty
are primary, irrevocable, absolute, unconditional and continuing under any and
all circumstances and no such obligation shall be to any extent or in any way
discharged, impaired or otherwise affected, except by performance in full
thereof.
3B NO REDUCTION OR DEFENSE. The obligations of the Guarantors under this
Guaranty, and the rights of the Discount Note Indenture Trustee to enforce such
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obligations by any proceedings, whether by action at law, suit in equity or
otherwise, shall not be subject to any reduction, limitation, impairment or
termination, whether by reason of any claim of any character whatsoever or
otherwise, including, without limitation, claims of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense, deferment,
deduction, diminution, abatement, suspension, set-off, counterclaim, recoupment
or termination whatsoever.
Without limiting the generality of the foregoing, the obligations of the
Guarantors shall not be discharged, impaired, released or in any way affected
by:
(a) any default, failure or delay, wilful or otherwise, in the performance
of any obligations by LCI or any other Person;
(b) any creditors' rights, bankruptcy, receivership or other insolvency
proceeding of LCI or the Guarantors or any merger, consolidation,
reorganization, dissolution, liquidation or winding up or change in corporate
constitution or corporate identity or loss of corporate identity of LCI or the
Guarantors;
(c) impossibility or illegality of performance on the part of LCI under
the Noteholder Completion Guaranty;
(d) the invalidity, irregularity or unenforceability of the Noteholder
Completion Guaranty or any documents referred to therein or herein;
(e) in respect of LCI or the Guarantors, any change of circumstances,
whether or not foreseen or foreseeable, whether or not imputable to LCI or the
Guarantors, or other impossibility of performance through fire, explosion,
accident, labor disturbance, floods, droughts, embargoes, wars (whether or not
declared), civil commotions, acts of God or the public enemy, delays or failure
of suppliers or carriers, inability to obtain materials or any other causes
affecting performance, or any other force majeure, whether or not beyond the
control of LCI or the Guarantors and whether or not of the kind hereinbefore
specified;
(f) any attachment, claim, demand, charge, lien, order, process,
encumbrance or any other happening or event or reason, similar or dissimilar to
the foregoing, or any withholding or diminution at the source, by reason of any
taxes, assessments, expenses, indebtedness, obligations or liabilities of any
character, foreseen or unforeseen, and whether or not valid, incurred by or
against any Person or any claims, demands, charges, liens, or encumbrances of
any nature, foreseen or unfore-
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seen, incurred by any Person, or against any sums payable under this Guaranty,
so that such sums would be rendered inadequate or would be unavailable to make
the payments herein provided;
(g) any order, judgment, decree, ruling or regulation (whether or not
valid) of any court of any nation or of any political subdivision thereof or any
body, agency, department, official or administrative or regulatory agency of any
nation or any political subdivision thereof or any other action, happening,
event or reason whatsoever which shall delay, interfere with, hinder or prevent,
or in any way adversely affect, the performance by LCI of any of its respective
obligations under the Noteholders Completion Guaranty;
(h) any amendment of or change in, or termination or waiver of, any of the
Noteholders Completion Guaranty;
(i) any waiver of the payment, performance or observance of any of the
obligations, conditions, covenants or agreements contained in the Noteholder
Completion Guaranty, or any other waiver, consent, extension, indulgence,
compromise, settlement, release or other action or inaction under or in respect
of the Noteholder Completion Guaranty;
(j) any failure, omission or delay on the part of the Discount Note
Indenture Trustee to enforce, assert or exercise any right, power or remedy
conferred on it in this Guaranty;
(k) any merger or consolidation of LCI or any Guarantor into or with any
other corporation, or any sale, lease or transfer of any of the assets of LCI or
any Guarantor to any other Person;
(l) any change in the ownership of any shares of capital stock of LCI, or
any change in the corporate relationship between LCI and any Guarantor, or any
termination of such relationship; or
(m) any other occurrence, circumstance, happening or event whatsoever,
whether similar or dissimilar to the foregoing, whether foreseen or unforeseen,
and any other circumstance which might otherwise constitute a legal or equitable
defense or discharge of the liabilities of a Guarantor or surety or which might
otherwise limit recourse against any Guarantor.
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3C. FULL RECOURSE OBLIGATIONS. Subject to the provisions of Section 3E,
the obligations of each Guarantor set forth herein constitute full recourse
obligations of such Guarantor, enforceable against it to the full extent of all
its assets and properties.
3D. EFFECT OF BANKRUPTCY PROCEEDINGS, ETC.
(a) This Guaranty shall continue to be effective or be automatically
reinstated, as the case may be, if at any time any payment made by any Person on
account of any of the sums due under the Noteholder Completion Guaranty pursuant
to the terms thereof is rescinded or must otherwise be restored or returned by
the Discount Note Indenture Trustee upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of LCI or any other Person, or upon
or as a result of the appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to LCI or other Person or any
substantial part of its property, or otherwise, all as though such payment had
not been made.
(b) If an even permitting the acceleration of the maturity of the
obligations of LCI under the Noteholder Completion Guaranty shall at any time
have occurred and be continuing, and such acceleration shall at such time be
prevented by reason of the pendency against LCI or any other Person of any case
or proceeding contemplated by the preceding paragraph (a) then, for the purpose
of defining the obligations of the Guarantors under this Guaranty, the maturity
of obligations of LCI under the Noteholder Completion Guaranty shall be deemed
to have been accelerated with the same effect as if an acceleration had occurred
in accordance with the terms of the Noteholder Completion Guaranty and the
Guarantors shall forthwith pay all amounts due under the Noteholder Completion
Guaranty upon acceleration of such obligations and any other amounts guaranteed
hereunder without further notice or demand.
3E. MAXIMUM LIABILITY. Notwithstanding any other provision hereof, the
liability of any Guarantor hereunder shall not exceed the greater of 95% of the
Adjusted Net Worth (as defined below) of such Guarantor as of the date hereof
and 95% of the Adjusted Net Worth of such Guarantor on the date on which
payment under this Guaranty is sought. As used herein, the term "Adjusted Net
Worth" of a Guarantor means the excess of (i) the amount of the fair saleable
value of the assets of such Guarantor determined in accordance with applicable
laws governing determinations of solvency over (ii) the amount of all
liabilities of such Guarantor, including
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contingent liabilities (but excluding contingent liabilities of such Guarantor
as a Guarantor hereunder), determined in accordance with such laws.
3F. CONTRIBUTION AMONG GUARANTORS. To the extent that any Guarantor has
paid more than is proportionate share of the guaranteed obligations paid by all
Guarantors, such Guarantor shall be entitled to seek and receive contribution
from any other Guarantor to the extent that such other Guarantor has paid less
than its proportionate share of the guaranteed obligations so paid. This
contribution obligation may not be enforced against any Guarantor until all the
obligations guaranteed hereby have been paid in full and such Guarantor's
obligations with respect thereto, together with all of its other obligations
hereunder, may not exceed its maximum liability under Section 3E.
4. REPRESENTATIONS AND WARRANTIES. Each Guarantor represents and warrants to
the Discount Note Indenture Trustee that:
4A. ORGANIZATION. It is duly organized and validly existing under the
laws of the jurisdiction in which it is incorporated and has the corporate power
to own and operate its property and to carry on its business as now being
conducted and is qualified to do business in each jurisdiction in which it is
necessary, except where the failure to so qualify would not individually or in
the aggregate reasonably be expected to have a Material Adverse Effect or a
material adverse effect on the ability of such Guarantor to perform its
obligations hereunder. Each Guarantor possesses all necessary licenses,
permits, consents and similar official authorizations which it requires for its
business except where the absence thereof would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect or a
material adverse effect on the ability of such Guarantor to perform its
obligations hereunder.
4B. POWERS AND AUTHORITY. It has the corporate power and authority to
enter into and perform, and has taken all necessary action to duly authorize the
entry into, performance and delivery of, this Guaranty and the transactions
contemplated hereby.
4C. ACTIONS PENDING.
(a) There is no action, suit, investigation or proceeding pending or, to
the knowledge of such Guarantor, threatened against or affecting such Guarantor
or any properties or rights of such Guarantor in or before any court, arbitrator
or administra-
9
tor or Governmental Instrumentality which, if adversely determined, would
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect or a material adverse effect on the ability of such Guarantor to
perform its obligations hereunder.
(b) Such Guarantor is not in default under any term of any agreement or
instrument to which it is a party or by which it or any of its properties are
bound, or any order, judgment, decree or ruling of any court, arbitrator,
administrator or Governmental Instrumentality, or in violation of any applicable
law, ordinance, sale or regulation (including without limitation Environmental
Laws) of any Governmental Instrumentality, which default or violation,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect or a material adverse effect on the ability of such
Guarantor to perform its obligations hereunder.
4D. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC. The execution, delivery
and performance by the Guarantor of this Guaranty will not contravene, result
in any breach of, or constitute a default under, or result in the creation of
any Lien in respect of any property of the Guarantor under, any indenture,
mortgage, deed of trust, loan, purchase or credit agreement, lease, memorandum
or articles of association, any other material agreement or instrument to which
the Guarantor is bound or by which the Guarantor or any of its properties may be
bound or affected conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of any court,
arbitrator or Governmental Instrumentality applicable to the Guarantor or
violate any provision of any statute or other rule or regulation of any
Governmental Instrumentality applicable to the Guarantor.
4E. GOVERNMENTAL CONSENT. Neither the nature of the Guarantor nor any of
its businesses or properties, nor any relationship between the Guarantor or any
of its Subsidiaries or any other Person, nor any circumstance in connection with
the entry into, performance, validity and enforceability of the Guaranty and the
transactions contemplated hereby is such as to require any authorization,
consent, approval, exemption or other action by or notice to or filing,
registration or declaration with, any court or administrative body or other
Governmental Instrumentality in connection with the execution and delivery of
this Guaranty, or fulfillment of or compliance with the terms and provisions
hereof.
4F. LEGAL VALIDITY. This Guaranty constitutes the legal, valid and
binding obligation of each Guarantor, enforceable against each Guarantor in
accordance with
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its respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
5. ENTIRE AGREEMENT; WAIVERS. Each Guarantor hereby agrees that this
instrument contains the entire agreement between the parties and that there is
and can be no other oral or written agreement or understanding whereby the
provisions of this instrument have been or can be terminated, affected, varied,
waived, amended or modified in any manner, unless the same be set forth and
consented to in writing by the Discount Note Indenture Trustee.
6. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon the Guarantors
and their permitted successors, transferees and assigns and inure to the benefit
of the Discount Note Indenture Trustee. This Guaranty shall without further
consent of the Guarantors, pass to, and may be relied upon and enforced by, any
successor or assignee of the Discount Note Indenture Trustee and any permitted
transferee of any Note.
7. JURISDICTION; SERVICE OF PROCESS. EACH GUARANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS
GUARANTY, OR ANY ACTION OR PROCEEDING TO EXECUTE OR OTHERWISE ENFORCE ANY
JUDGMENT IN RESPECT OF ANY BREACH THEREOF, BROUGHT BY THE DISCOUNT NOTE
INDENTURE TRUSTEE AGAINST THE GUARANTOR OR ANY OF ITS PROPERTY, MAY BE BROUGHT
BY THE DISCOUNT NOTE INDENTURE TRUSTEE IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK OR ANY NEW YORK STATE COURT SITTING IN NEW
YORK CITY AS THE DISCOUNT NOTE INDENTURE TRUSTEE MAY IN ITS SOLE DISCRETION
ELECT, AND, BY THE EXECUTION AND DELIVER OF THIS GUARANTY, IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF EACH SUCH COURT; AND AGREES THAT PROCESS
SERVED EITHER PERSONALLY OR BY REGISTERED MAIL SHALL, TO THE EXTENT PERMITTED BY
LAW, CONSTITUTE ADEQUATE SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING, WITHOUT LIMITING THE FOREGOING, EACH GUARANTOR HEREBY APPOINTS, IN
THE CASE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN THE COURTS OF OR IN THE
STATE OF NEW YORK, CT CORPORATION, WITH OFFICES ON THE DATE HEREOF
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AT 1633 BROADWAY, NEW YORK, NEW YORK 10019 TO RECEIVE, FOR IT AND ON ITS BEHALF,
SERVICE OF PROCESS IN THE STATE OF NEW YORK WITH RESPECT THERETO, PROVIDED EACH
GUARANTOR MAY APPOINT ANY OTHER PERSON, REASONABLY ACCEPTABLE TO THE DISCOUNT
NOTE INDENTURE TRUSTEE, WITH OFFICES IN THE STATE OF NEW YORK TO REPLACE SUCH
AGENT FOR SERVICE OF PROCESS UPON DELIVERY TO THE ADMINISTRATIVE AGENT OF A
REASONABLY ACCEPTABLE AGREEMENT OF SUCH NEW AGENT AGREEING SO TO ACT. IN
ADDITION, EACH GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY, BROUGHT IN THE SAID COURTS, AND HEREBY IRREVOCABLY WAIVES ANY CLAIM
THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO
LIMIT THE ABILITY OF THE DISCOUNT NOTE INDENTURE TRUSTEE TO SERVE ANY SUCH
WRITS, PROCESS OR SUMMONSES, IN ANY MANNER PERMITTED BY APPLICABLE LAW OR TO
OBTAIN JURISDICTION OVER SUCH GUARANTOR, IN SUCH OTHER JURISDICTION, AND IN SUCH
MANNER, AS MAY BE PERMITTED BY APPLICABLE LAW.
8. NOTICES. All notices and communications provided for hereunder shall be in
writing and sent by telecopy if the sender on the same day sends a confirming
copy of such notice by a recognized overnight delivery service (charges
prepaid), or by registered or certified mail with return receipt requested
(postage prepaid), or by a recognized overnight delivery service (with charges
prepaid). Any such notice must be sent:
(i) if to the Discount Note Indenture Trustee Party to such Person at
State Street Bank & Trust Company, Two International Place,
Boston, MA 02110, Attn: Corporate Trust Department, or at such
other address as such Person shall have specified to each
Guarantor in writing, or
(ii) if to the Guarantor, to the Guarantor at c/o London Clubs
International PLC, 10 Brick Street, London WIY 8HO with a copy to
LCI to the same address, or at such other address as
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each Guarantor shall have specified to the the Discount Note
Indenture Trustee in writing.
(iii) Notices under this Section 8 will be deemed given only when
actually received.
9. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. THIS
GUARANTY AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG
THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY
PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT HERETO.
10. SUBROGATION. Each Guarantor irrevocably and unconditionally hereby waives
(until the obligations guaranteed hereunder shall have been indefeasibly paid in
full) all rights it may have to be subrogated to the rights of the Discount Note
Indenture Trustee, and all other remedies that it may have against LCI, in
respect of which any payment is made hereunder. If any amount shall be paid to
the Guarantors on account of any such subrogation rights or other remedy,
notwithstanding the waiver thereof, such amount shall be received in trust for
the benefit of the Discount Note Indenture Trustee and shall forthwith be paid
to the Discount Note Indenture Trustee to be credited and applied upon the
obligations guaranteed hereby, whether matured or unmatured, in accordance with
the terms hereof. Each Guarantor agrees that its obligations under this Section
10 shall be automatically reinstated if and to the extent that for any reason
any payment by or on behalf of LCI is rescinded or must be otherwise restored by
the Discount Note Indenture Trustee, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, all as though such amount had not
been paid.
11. PAYMENTS FREE AND CLEAR OF TAXES, ETC. Each Guarantor hereby agrees that:
(a) All payments by such Guarantor hereunder shall be made free and clear
of and without deduction for any present or future income, excise, stamp or
franchise taxes and other taxes, fees, duties, withholdings or other charges of
any nature whatsoever imposed by any taxing authority, but excluding franchise
taxes and taxes imposed on or measured by the Discount Note Indenture Trustee's
net income or receipts (such non-excluded items being called "TAXES"). In the
event that any withholding or deduction from any payment to be made by a
Guarantor hereun-
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der is required in respect of any Taxes pursuant to any applicable law, rule or
regulation, then such Guarantor will
(i) pay directly to the relevant authority the full amount required
to be so withheld or deducted;
(ii) promptly forward to the Discount Note Indenture Trustee an
official receipt or other documentation satisfactory to the
Discount Note Indenture Trustee evidencing such payment to such
authority; and
(iii) pay to the Discount Note Indenture Trustee such additional amount
or amounts ("ADDITIONAL AMOUNT") as is necessary to ensure that
the net amount actually received by the Discount Note Indenture
Trustee will equal the full amount the Discount Note Indenture
Trustee would have received had no such withholding or deduction
been required.
Moreover, if any Taxes are directly asserted against any the Discount
Note Indenture Trustee with respect to any payment received by the
Discount Note Indenture Trustee hereunder, the Discount Note Indenture
Trustee may pay such Taxes and the Guarantor will promptly pay such
Additional Amounts (including any penalties, interest or expenses) as
is necessary in order that the net amount received by the Discount
Note Indenture Trustee after the payment of such Taxes (including any
Taxes on such Additional Amounts) shall equal the amount the Discount
Note Indenture Trustee would have received had not such Taxes been
asserted.
(b) If the Guarantor fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Discount Note Indenture Trustee the
required receipts or other required documentary evidence, the Guarantor shall
indemnify the Discount Note Indenture Trustee for any incremental Taxes,
interest, or penalties that may become payable by the Discount Note Indenture
Trustee as a result of any such failure.
(c) In the event that an Additional Amount is paid by a Guarantor for the
account of the Discount Note Indenture Trustee and the Discount Note Indenture
Trustee is entitled to a refund of the Tax (a "Tax Refund") to which such
payment is
14
attributable, then the Discount Note Indenture Trustee shall take all reasonable
steps which are necessary to obtain such Tax Refund, including filing such
forms, certificates, documents, applications or returns as may be required to
obtain such Tax Refund. If the Discount Note Indenture Trustee subsequently
receives such a Tax Refund, then the Discount Note Indenture Trustee shall
reimburse such amount.
(d) Without prejudice to the survival of any other agreement of the
Guarantors hereunder, the agreements and obligations of the Guarantors contained
in this SECTION 11 shall survive the payment in full of the obligations owing
under the Noteholder Completion Guaranty.
12. JUDGMENT. Each Guarantor hereby agrees that:
(a) If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder in United States Dollars into another
currency, such Guarantor agrees, to the fullest extent permitted by law, that
the rate of exchange used shall be that at which in accordance with normal
banking procedures the Discount Note Indenture Trustee could purchase United
States Dollars with such other currency on the Business Day preceding that on
which final judgment is given.
(b) The obligation of each Guarantor in respect of any sum due from it to
the Discount Note Indenture Trustee hereunder shall, notwithstanding any
judgment in a currency other than United States Dollars, be discharged only to
the extent that on the Business Day following receipt by the Discount Note
Indenture Trustee of any sum adjudged to be so due in such other currency the
Discount Note Indenture Trustee may, in accordance with normal banking
procedures, purchase United States Dollars with such other currency; in the
event that the United States Dollars so purchased are less than the sum
originally due to the Discount Note Indenture Trustee in United Stated Dollars,
the Guarantor, as a separate obligation and notwithstanding any such judgment,
shall indemnify and hold harmless the Discount Note Indenture Trustee against
such loss, and if the United States Dollars so purchased exceed the sum
originally due to the Discount Note Indenture Trustee in United States Dollars,
the Discount Note Indenture Trustee shall remit to such Guarantor such excess.
13. NO WAIVER. No delay on the part of the Discount Note Indenture Trustee in
exercising any rights hereunder or failure to exercise the same shall operate as
a waiver of such rights; no notice to or demand on the Guarantors shall be
deemed to
15
be a waiver of the obligation of the Guarantors or of the rights of the Discount
Note Indenture Trustee to take further action without notice or demand as
provided herein.
14. HEADINGS. The descriptive heading of the several paragraphs of this
Guaranty are inserted for convenience only and do not constitute a part of this
Guaranty.
15. COUNTERPARTS. This Guaranty may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Guaranty to produce or account for more than
one such counterpart.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties contained herein or made in writing by or on behalf of the Guarantors
in connection herewith shall survive the execution and delivery of this
Guaranty.
17. SEVERABILITY. Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
18. TERM OF GUARANTY. This Guaranty and all covenants and agreements of the
Guarantors contained herein shall continue in full force and effect and shall
not be discharged until such time as all of the obligations guaranteed hereby
and any other independent payment obligations of the Guarantors hereunder shall
be paid and performed in full and all of the agreements of the Guarantors
hereunder shall be duly paid and performed in full.
19. WAIVER OF JURY TRIAL. THE GUARANTORS HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF THE DISCOUNT NOTE INDENTURE TRUSTEE. THE
GUARANTORS ACKNOWLEDGE AND AGREE THAT THEY HAVE RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE DISCOUNT NOTE INDENTURE TRUSTEE ENTERING INTO THE INDENTURE.
16
20. RIGHTS OF LENDERS. This Subsidiary Guaranty shall be binding upon the
Guarantors and their permitted successors, transferees and assigns and shall
inure to the benefit of and be enforceable by the Discount Note Indenture
Trustee and its respective successors, transferees and assigns; PROVIDED,
HOWEVER, that the Guarantors may not assign any of their Guaranteed Obligations
hereunder without the prior written consent of the Discount Note Indenture
Trustee, and the Discount Note Indenture Trustee may not assign this Subsidiary
Guaranty or any of its rights, remedies or options hereunder without the prior
written consent of the Administrative Agent in its sole discretion. The
Lenders shall be third party beneficiaries of this SECTION 20 and shall have all
rights at law and equity to the enforcement hereof.
17
IN WITNESS whereof the Guarantors have caused this Guaranty to be executed
as a deed the day and year first above written.
EXECUTED AS A DEED by )
LONDON CLUBS HOLDINGS LIMITED ) Director
acting by two Directors )
or a Director and the Secretary ) Director/Secretary
EXECUTED AS A DEED by )
LONDON CLUBS MANAGEMENT LIMITED ) Director
acting by two Directors )
or a Director and the Secretary ) Director/Secretary
EXECUTED AS A DEED by )
THE SPORTSMAN CLUB LIMITED ) Director
acting by two Directors )
or a Director and the Secretary ) Director/Secretary
EXECUTED AS A DEED by )
RITZ CLUB (LONDON) LIMITED ) Director
acting by two Directors )
or a Director and the Secretary ) Director/Secretary
EXECUTED AS A DEED by )
GOLDEN NUGGET CLUB LIMITED ) Director
acting by two Directors )
or a Director and the Secretary ) Director/Secretary
EXECUTED AS A DEED by )
LES AMBASSADEURS CLUB LIMITED ) Director
acting by two Directors )
or a Director and the Secretary ) Director/Secretary
EXECUTED AS A DEED by )
RENDEZVOUS CLUB (LONDON) LIMITED ) Director
acting by two Directors )
or a Director and the Secretary ) Director/Secretary
EXECUTED AS A DEED by )
18
PALM BEACH CLUB LIMITED ) Director
acting by two Directors )
or a Director and the Secretary ) Director/Secretary
EXECUTED AS A DEED by )
SIX HAMILTON PLACE LIMITED ) Director
acting by two Directors )
or a Director and the Secretary ) Director/Secretary
EXECUTED AS A DEED by )
BURLINGTON STREET SERVICES LIMITED ) Director
acting by two Directors )
or a Director and the Secretary ) Director/Secretary
EXECUTED AS A DEED by )
ZEALCASTLE LIMITED ) Director
acting by two Directors )
or a Director and the Secretary ) Director/Secretary
EXECUTED AS A DEED by )
CORBY LEISURE RETAIL ) Director
DEVELOPMENTS LIMITED )
acting by two Directors ) Director/Secretary
or a Director and the Secretary )
EXECUTED AS A DEED by )
UNITLAW TRADING LIMITED ) Director
acting by two Directors )
or a Director and the Secretary ) Director/Secretary
EXECUTED AS A DEED by )
LONDON PARK TOWER CLUB LIMITED ) Director
acting by two Directors )
or a Director and the Secretary ) Director/Secretary
EXECUTED AS A DEED by )
PUBLICACE LIMITED ) Director
acting by two Directors )
or a Director and the Secretary ) Director/Secretary
19
EXECUTED AS A DEED by )
LOMASBOND PROPERTIES LIMITED ) Director
acting by two Directors )
or a Director and the Secretary ) Director/Secretary
EXECUTED AS A DEED by )
LONDON CLUBS (OVERSEAS) LIMITED ) Director
acting by two Directors )
or a Director and the Secretary ) Director/Secretary
EXECUTED AS A DEED by )
DECBURY LIMITED ) Director
acting by two Directors )
or a Director and the Secretary ) Director/Secretary
20
APPENDIX A
To Subsidiary Guaranty
DEFINITIONS
DEFINED TERMS. The following terms (whether or not italicized) when used in the
Subsidiary Guaranty, including its preamble and recitals, shall, except where
the context otherwise requires, have the following meanings (such meanings to be
equally applicable to the singular and plural forms thereof):
"ABH" means Aladdin Bazaar Holdings, LLC, a Nevada limited-liability company.
"ADDITIONAL CONTRACT CERTIFICATE" means an Additional Contract Certificate
substantially in the form of EXHIBIT Y to the Credit Agreement.
"ADMINISTRATIVE AGENT" is defined in the PREAMBLE of the Credit Agreement and
includes each other Person as shall have subsequently been appointed as the
successor Administrative Agent pursuant to SECTION 9.4 of the Credit Agreement.
"AFFECTED LENDER" is defined in CLAUSE(A) of SECTION 4.11 of the Credit
Agreement.
"AFFILIATE" means, relative to any Person, any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (EXCLUDING, HOWEVER, any trustee under, or any committee with
responsibility for administering, any Plan). With respect to any Lender,
Approved Fund, or Issuer, a Person shall be deemed to be "controlled by" another
Person if such other Person possesses, directly or indirectly, power to vote 51%
or more of the securities (on a fully diluted basis) having ordinary voting
power for the election of directors, managing general partners or managers, as
the case may be. With respect to all other Persons, a Person shall be deemed to
be "controlled by" another Person if such other Person possesses, directly or
indirectly, power
(a) to vote 10% or more of the securities (on a fully diluted basis) having
ordinary voting power for the election of directors, managing general partners
or managers, as the case may be; or
(b) to direct or cause the direction of the management and policies of such
Person whether by contract or otherwise.
A-1
"AFFILIATE TRANSACTION" is defined in SECTION 7.2.13 of the Credit Agreement.
"AGENT" means the Administrative Agent, the Syndication Agent and/or the
Documentation Agent, as the context may require.
"AHL" means Aladdin Holdings, LLC, a Delaware limited liability company.
"AHL PLEDGE AGREEMENT" means, on any date, the Pledge Agreement executed
and delivered by an Authorized Representative of AHL pursuant to CLAUSE (D) of
SECTION 5.1.3 of the Credit Agreement, as originally in effect on the Closing
Date, in substantially the form of EXHIBIT E-2 to the Credit Agreement and as
thereafter from time to time amended, supplemented, amended and restated or
otherwise modified.
"ALADDIN BAZAAR" means Aladdin Bazaar, LLC, a Delaware limited liability
company.
"ALADDIN MUSIC" means Aladdin Music, LLC, a Nevada limited-liability
company.
"ALADDIN PARTIES" means, collectively, the Borrower, Holdings, Capital,
Enterprises, Sommer Enterprises, AHL, Aladdin Music, AMH, ABH and the Trust.
"ALTERNATE BASE RATE" means, on any date and relative to all Base Rate
Loans, a fluctuating rate of interest per annum (rounded upward, if necessary,
to the next highest 1/16 of 1%) equal to the higher of
(a) the Base Rate in effect on such day; and
(b) the Federal Funds Rate in effect on such day plus 1/2 of 1%.
Changes in the rate of interest on that portion of any Loans maintained as Base
Rate Loans will take effect simultaneously with each change in the Alternate
Base Rate. The Administrative Agent will give notice promptly to the Borrower
and the Lenders of changes in the Alternate Base Rate.
A-2
"AMH" means Aladdin Music Holdings, LLC, a Nevada limited-liability
company.
"AMH PLEDGE AGREEMENT" means, on any date, the Pledge Agreement executed
and delivered by an Authorized Representative of AMH pursuant to CLAUSE (G) of
SECTION 5.1.3 of the Credit Agreement, as originally in effect on the Closing
Date, in substantially the form of EXHIBIT E-3 to the Credit Agreement and as
thereafter from time to time amended, supplemented, amended and restated or
otherwise modified.
"APPLICABLE BASE RATE MARGIN" means, (w) relative to any Term B Loan and
Term C Loan, the proceeds of which on any date are being held in the Bank
Proceeds Account, 1.00% PER ANNUM, (x) 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, (y) 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 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
-------------------------------- ---------------------------
> or equal to 4.0:1 1.75%
> or equal to 3.5:1 and < 4.0:1 1.50%
> or equal to 3.0:1 and < 3.5:1 1.00%
> or equal to 2.5:1 and < 3.0:1 0.75%
< 2.5:1 0.50%
"APPLICABLE LIBO RATE MARGIN" means, (w) relative to any Term B Loan and
Term C Loan, the proceeds of which on any date are being held in the Bank
Proceeds Account, 2.00% PER ANNUM, (x) 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, (y) relative to any Term C Loan, the proceeds
of which on any date have been advanced to the Borrower from the Bank Proceeds
Account,
A-3
4.00% 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
-------------------------------- ---------------------------
> or equal to 4.0:1 2.75%
> or equal to 3.5:1 and < 4.0:1 2.50%
> or equal to 3.0:1 and < 3.5:1 2.00%
> or equal to 2.5:1 and < 3.0:1 1.75%
< 2.5:1 1.50%
"APPLICABLE PERCENTAGE" means the percentage of Direct Costs actually paid
or payable by the Borrower to the Design/Builder pursuant to the Design/Build
Contract or, if applicable, to a Contractor or Subcontractor pursuant to a
Contract after taking into account the Retainage Amount.
"APPROVED EQUIPMENT FUNDING COMMITMENT" means, collectively, (x) the GECC
Commitment and (y) any replacement of the GECC Commitment from an institutional
or other lender approved by the Administrative Agent in its reasonable
discretion if (1) such commitment is in form and substance reasonably
satisfactory to the Administrative Agent and does not include any material
conditions to funding that are not included in the GECC Commitment and (2) the
lender providing such commitment executes an intercreditor agreement
substantially similar to the GECC Intercreditor Agreement.
"APPROVED FUND" means, relative to any Lender that is a fund that invests
in bank loans, any other fund that invests in bank loans and is advised or
managed by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
"APPURTENANT RIGHTS" means (x) all agreements, easements, rights of way or
use, rights of ingress or egress, privileges, appurtenances, tenements,
hereditaments and other rights and benefits at any time belonging or pertaining
to the
A-4
Site or the Improvements, including the use of any streets, ways, alleys, vaults
or strips of land adjoining, abutting, adjacent or contiguous to the Site and
(y) all permits, licenses and rights, whether or not of record, appurtenant to
the Site.
"ARCHITECT OF RECORD" means ADP/FD of Nevada, Inc.
"ARCHITECT'S AGREEMENT" means, collectively, the agreements pursuant to
which architects, engineers and other design professionals have agreed with the
Borrower to provide services in connection with the Main Project.
"ARCHITECT'S CLOSING CERTIFICATE" means a closing certificate in the form
of EXHIBIT Q-3 to the Credit Agreement.
"ARRANGER" means Scotiabank or Merrill Lynch.
"ARRANGERS' FEE LETTER" means the confidential letter agreement, dated
December 4, 1997, among the Borrower, the Sponsors and the Arrangers.
"ASSIGNEE LENDER" is defined in SECTION 10.11.1 of the Credit Agreement.
"ASSIGNMENT OF CONTRACTS" means an assignment of any and all contracts,
agreements, proposals, Permits (to the extent such Permits are assignable),
approvals (to the extent such approvals are assignable), Plans and
Specifications pertaining to the Hotel/Casino Component, whether now existing or
subsequently entered into by the Borrower, including the Approved Equipment
Funding Commitments and the rights of the Borrower thereunder, management
contracts, the Contracts, development rights, consents (to the extent
assignable), architectural, engineering and leasing documents and such other
documents as may be designated by the Administrative Agent. Such Assignment of
Contracts shall include appropriate continuation agreements by the Contractors
and/or Subcontractors thereunder.
"AUTHORIZED REPRESENTATIVE" means, relative to any Person, those of its
officers or managing members (in the case of a limited liability company) whose
signatures and incumbency shall have been certified to the Administrative Agent
and the Lenders in a certificate of such Person delivered to the Administrative
Agent.
"AVAILABLE FUNDS" means, from time to time, the sum of (u) the aggregate of
the unutilized Commitments (EXCLUDING, HOWEVER, the Commitments of all
Defaulting Lenders) under the Bank Credit Facility, PLUS (v) the aggregate of
the
A-5
amounts on deposit in the Borrower's Funds Account, the Construction Note
Disbursement Account and all Anticipated Earnings thereon, PLUS (w) the
aggregate of the amounts on deposit in the Guaranty Deposit Account, the Cash
Management Account, the Bank Proceeds Account, the Loss Proceeds Account and the
Interest Payment Account, PLUS (x) so long as (1) no default under the Site Work
Agreement and the Mall Project Loan and no Default under the Credit Agreement
have occurred and are continuing at the relevant time of computation, (2)
advances of the Mall Project Loan have commenced on or before June 30, 1998 and
have continued in accordance with the approved draw schedule for the Mall
Project Loan, (3) advances of the Mall Project Loan to reimburse the Borrower in
accordance with the Site Work Agreement are made within 45 days after the
Construction Consultant and the Owner Representative have approved the work to
be completed by the Borrower pursuant to the Site Work Agreement, the aggregate
amounts payable to the Borrower by Aladdin Bazaar pursuant to Section 4.5 of the
Site Work Agreement, PLUS (y) the lesser of (1) the aggregate of the amounts
available to be drawn under all Approved Equipment Funding Commitments and (2)
the aggregate amount of Remaining Costs on the date of calculation for the
Equipment Component (as in effect from time to time), PLUS (z) the aggregate
amount of Main Project Costs which the Design/Builder and/or Fluor have agreed
or confirmed in writing, to the reasonable satisfaction of the Disbursement
Agent, that they are responsible for paying (on a timely basis relative to the
Main Project's cash needs) from their own funds but which they have not yet
paid.
"BANK CREDIT FACILITY" means the Term A Loan Commitment, the Term B Loan
Commitment and the Term C Loan Commitment.
"BANK PROCEEDS ACCOUNT" means the account established by the Borrower with
the Disbursement Agent pursuant to the Borrower Collateral Account Agreement
into which the proceeds of the Loans shall be deposited by the Administrative
Agent from time to time.
"BASE RATE" means, at any time, the rate of interest then most recently
established by the Administrative Agent in New York, New York as its base rate
for U.S. dollars loaned in the United States. The Base Rate is not necessarily
intended to be the lowest rate of interest determined by the Administrative
Agent in connection with extensions of credit.
"BASE RATE LOAN" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
A-6
"BOARD OF MANAGERS" means (x) for so long as the Borrower is a
limited-liability company, the Board of Managers appointed pursuant to the
Organizational Documents of the Borrower or (y) otherwise, the Board of
Directors of the Borrower.
"BORROWER" is defined in the PREAMBLE of the Credit Agreement.
"BORROWER COLLATERAL ACCOUNT AGREEMENT" means, on any date, the Borrower
Collateral Account Agreement, as originally in effect on the Closing Date, among
the Borrower, the Disbursement Agent and the Investment Intermediary and as
thereafter from time to time amended, supplemented, amended and restated or
otherwise modified in accordance with the terms of the Credit Agreement.
"BORROWER COMMON MEMBERSHIP INTEREST" means a Common Share as defined in
the Organizational Documents of the Borrower.
"BORROWER PLEDGE AGREEMENT" means, on any date, the Pledge Agreement
executed and delivered by an Authorized Representative of the Borrower pursuant
to CLAUSE (F) of SECTION 5.1.3 of the Credit Agreement, as originally in effect
on the Closing Date, in substantially the form of EXHIBIT E-1 to the Credit
Agreement and as thereafter from time to time amended, supplemented, amended and
restated or otherwise modified.
"BORROWER SERIES A PREFERRED MEMBERSHIP INTERESTS" means the Series A
Preferred Shares as defined in the Organizational Documents of the Borrower.
"BORROWER'S CLOSING CERTIFICATE" means a closing certificate in the form of
EXHIBIT Q-1 to the Credit Agreement.
"BORROWER'S COMPLETION CERTIFICATE" means a certificate in the form of
EXHIBIT S-1 to the Credit Agreement.
"BORROWER'S FINAL COMPLETION CERTIFICATE" means a certificate in the form
of EXHIBIT U-1 to the Credit Agreement.
"BORROWER'S FUNDS ACCOUNT" is defined in the Borrower Collateral Account
Agreement.
A-7
"BORROWING" means the Loans of the same type and, in the case of LIBO Rate
Loans, having the same Interest Period made by all Lenders required to make such
Loans on the same Business Day and pursuant to the same Borrowing Request in
accordance with SECTION 2.1 of the Credit Agreement.
"BORROWING REQUEST" means a Loan request and certificate duly executed by
an Authorized Representative of the Borrower substantially in the form of
EXHIBIT L-1 to the Credit Agreement.
"BUILDING DEPARTMENT" means the Clark County Building Department.
"BUSINESS DAY" means
(a) any day which is neither a Saturday or Sunday nor a legal holiday
on which banks are authorized or required to be closed in Las Vegas, Nevada
or New York, New York; and
(b) relative to the making, continuing, prepaying or repaying of any
LIBO Rate Loans, any day described in CLAUSE (A) on which dealings in
Dollars are carried on in the London interbank eurodollar market.
"CAPITAL" means Aladdin Capital Corp., a Nevada corporation.
"CAPITAL EXPENDITURES" means, for any period, the aggregate amount of all
expenditures (other than any residual purchase payments under the FF&E Leases)
of the Borrower and the other Aladdin Parties for fixed or capital assets made
during such period which, in accordance with GAAP, would be classified as
capital expenditures.
"CAPITAL STOCK" means, relative to any Person, any and all shares,
interests (including Membership Interests), participations or other equivalents
(however designated, whether voting or non-voting) of such Person's capital,
whether now outstanding or issued after the Effective Date.
"CAPITALIZED LEASE LIABILITY" means, relative to any Person, any monetary
obligation of such Person under any leasing or similar arrangement which, in
accordance with GAAP, would be classified as a capitalized lease, and, for
purposes of this Agreement and each other Loan Document, the amount of such
obligation
A-8
shall be the capitalized amount thereof, determined in accordance with GAAP, and
the stated maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such lease
may be terminated by the lessee without payment of a premium or a penalty.
"CARPARK" is defined in CLAUSE (B) of the FOURTH RECITAL of the Credit
Agreement.
"CASH CONTRIBUTIONS TO CAPITAL" means optional contributions (other than
Cash Equity Contributions as defined in the Keep-Well Agreement), including to
cure a Default that would otherwise exist under the Loan Documents, made by the
Sponsors in cash to the Borrower, which contributions were (x) not made as a
loan, (y) made in exchange for Borrower Series A Preferred Membership Interests
and (z) made on terms and conditions satisfactory to the Administrative Agent as
determined on good faith in its sole discretion.
"CASH EQUIVALENT INVESTMENT" means, at any time, (u) United States Dollars,
(v) securities issued or directly and fully guaranteed or insured by the United
States Government or any agency or instrumentality thereof (provided that the
full faith and credit of the United States is pledged in support thereof) having
maturities of not more than six months from the date of acquisition,
(w) certificates of deposit and eurodollar time deposits with maturities of six
months or less from the date of acquisition, bankers' acceptances with
maturities not exceeding six months and overnight bank deposits, in each case
with any domestic commercial bank having capital and surplus in excess of $500
million and a Thompson Bank Watch Rating of "B" or better, (x) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in ITEM (V) and (W) entered into with any financial
institution meeting the qualifications specified in ITEM (W), (y) commercial
paper having the highest rating obtainable from Moody's Investors Service, Inc.
or Standard & Poor's Corporation and in each case maturing within six months
after the date of acquisition and (z) money market funds at least 95% of the
assets of which constitute Cash Equivalents of the kinds described in ITEMS
(W)-(Y) of this definition.
"CASINO" is defined in CLAUSE (A) of the FOURTH RECITAL of the Credit
Agreement.
"CERCLA" is defined in CLAUSE (A) of the definition of "Environmental Law".
A-9
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"CHANGE IN CONTROL" means at any time,
(a) the failure of the Trust or the beneficiaries or remaindermen of
the Trust to (i) directly own, free and clear of all Liens (other than
Liens in favor of the Administrative Agent for the benefit of the Secured
Parties), all of (A) the Membership Interests of AHL not otherwise owned by
GW Vegas, LLC on the Effective Date or (B) following the dissolution of the
Trust and AHL, the Membership Interests of Sommer Enterprises not otherwise
owned by Ronald B. Dictrow on the Effective Date or (ii) otherwise have the
ability to elect the managers of (A) AHL or (B) following the dissolution
of the Trust and AHL, Sommer Enterprises;
(b) the failure of AHL or following the dissolution of the Trust and
AHL, the beneficiaries or remaindermen of the Trust to directly own, free
and clear of all Liens (other than Liens in favor of the Administrative
Agent for the benefit of the Secured Parties), 98.66% of the Membership
Interests of Sommer Enterprises or otherwise have the ability to elect the
managers of Sommer Enterprises;
(c) the failure of Sommer Enterprises to directly own, free and clear
of all Liens (other than Liens in favor of the Administrative Agent for the
benefit of the Secured Parties), 47.00% of the Membership Interests of
Holdings (except that (v) on the Opening Date, the percentage interest of
Sommer Enterprises in the Holdings Common Membership Interests may be
increased by 0.5% provided that the percentage interest of LCNI therein is
decreased by a corresponding amount (w) in the event of a default by London
Clubs in payment of its share of amounts due under the Keep-Well Agreement,
the percentage interest of Sommer Enterprises in the Holdings Common
Membership Interests may be increased by 1, 1.5 or 2 times (depending on
whether London Clubs is in default for 30 Business Days, 45 Business Days
or 60 Business Days from the date of such default, respectively) MULTIPLIED
BY a dilution fraction (the "DILUTION FRACTION"), the numerator of which is
the delinquent contribution and the denominator of which is
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$200,000,000 provided that the percentage interest of LCNI therein is
decreased by a corresponding amount, (x) in the event of a default by AHL
in its share of amounts due under the Keep-Well Agreement, the percentage
interest of LCNI in the Holdings Common Membership Interests may be
increased by 1, 1.5 or 2 times (depending on whether AHL is in default for
30 Business Days, 45 Business Days or 60 Business Days from the date of
such default, respectively) MULTIPLIED BY the Dilution Fraction provided
that the percentage interest of Sommer Enterprises therein is decreased by
a corresponding amount), (y) in the event of any vesting of any unvested
Membership Interests in Holdings pursuant to an Employment Agreement,
Sommer Enterprises may be diluted thereby and (z) upon the exercise of the
Warrants, the dilutive effect of such exercise directly and indirectly on
the Membership Interests in Holdings) or otherwise for Sommer Enterprises
and LCNI to have the ability to elect the board of managers of Holdings or
for either of them to have the ability individually or collectively to
elect the board of managers of Holdings;
(d) except for Capital Stock of Enterprises issued in connection with
the exercise of Warrants, the failure of Sommer Enterprises to directly
own, free and clear of all Liens (other than Liens in favor of the
Administrative Agent for the benefit of the Secured Parties), all of the
Capital Stock of Enterprises or otherwise have the ability to elect the
members of the Board of Directors of Enterprises;
(e) the failure of Enterprises to directly own, free and clear of all
Liens (other than Liens in favor of the Administrative Agent for the
benefit of the Secured Parties), at least 25% of the Membership Interests
of Holdings (except for any adjustments upon the exercise of any Warrants)
or individually or collectively with Sommer Enterprises and LCNI to have
the ability to elect the managing member of Holdings;
(f) the failure of Holdings to directly own, free and clear of all
Liens (other than Liens in favor of the Administrative Agent for the
benefit of the Secured Parties), all of the Borrower Common Membership
Interests or otherwise to have the ability to elect the managing member of
the Borrower;
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(g) the failure of Holdings to directly own, free and clear of all
Liens (other than Liens in favor of the Discount Note Indenture Trustee for
the benefit of the Discount Noteholders), the Borrower Series A Preferred
Membership Interests unless the failure to own the Borrower Series A
Preferred Membership Interests results from the exercise by the Discount
Note Indenture Trustee of the Lien in favor of the Discount Note Indenture
Trustee for the benefit of the Discount Noteholders;
(h) the failure of Holdings to directly own, free and clear of all
Liens (other than Liens in favor of the Administrative Agent for the
benefit of the Secured Parties), all of the Capital Stock of Capital or
otherwise have the ability to elect all of the members of the Board of
Directors of Capital;
(i) the failure of the Borrower to directly own, free and clear of
all Liens (other than Liens in favor of the Administrative Agent for the
benefit of the Secured Parties), all of the Membership Interests of AMH or
otherwise to have the ability to elect the managing member of AMH;
(j) the failure of AMH to directly own, free and clear of all Liens
(other than Liens in favor of the Administrative Agent for the benefit of
the Secured Parties), at least 49% of the Membership Interests of Aladdin
Music or otherwise to have the ability to elect the managing member of
Aladdin Music;
(k) the failure of LCNI to directly own, free and clear of all Liens
(other than Liens in favor of the Administrative Agent for the benefit of
the Secured Parties), at least 25.0% of the Holdings Common Membership
Interests (except that (v) on the Opening Date, the percentage interest of
LCNI in the Holdings Common Membership Interests may be decreased by 0.5%
provided that the percentage interest of Sommer Enterprises therein is
increased by a corresponding amount (w) in the event of a default by Sommer
Enterprises in payment of its share of amounts due under the Keep-Well
Agreement, the percentage interest of LCNI in the Holdings Common
Membership Interests may be increased by 1, 1.5 or 2 times (depending on
whether Sommer Enterprises is in default for 30 Business Days, 45
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Business Days or 60 Business Days from the date of such default,
respectively) MULTIPLIED BY the Dilution Fraction, provided that the
percentage interest of Sommer Enterprises therein is decreased by a
corresponding amount, (x) in the event of a default by LCNI in payment of
its share of amounts due under the Keep-Well Agreement, the percentage
interest of Sommer Enterprises in the Holdings Common Membership Interests
may be increased by 1, 1.5 or 2 times (depending on whether LCNI is in
default for 30 Business Days, 45 Business Days or 60 Business Days from the
date of such default, respectively) MULTIPLIED BY the Dilution Fraction
provided that the percentage interest of LCNI is decreased by a
corresponding amount) and (y) in the event of any vesting of unvested
membership interests in Holdings pursuant to an Employment Agreement, LCNI
may be diluted thereby and (z) upon the exercise of the Warrants, the
dilutive effect of such exercise directly and indirectly on the Membership
Interest of Holdings) or otherwise for LCNI and Sommer Enterprises to have
the ability to elect the board of managers of Holdings;
(l) until such time as London Clubs has paid and performed, in all
material respects, its obligations under the Completion Guaranty and the
Keep-Well Agreement (or the Completion Guaranty and the Keep-Well Agreement
have expired or terminated), the failure of London Clubs to directly own
all of the Capital Stock of London Clubs Holdings or otherwise have the
ability to elect all members of the Board of Directors of London Clubs
Holdings;
(m) the failure of London Clubs to own directly or indirectly all of
the Capital Stock of LCNI or otherwise have the ability to elect all
members of the Board of Directors of LCNI; or
(n) any "Change of Control" under (and as defined in) the Discount
Note Indenture.
"CHANGE ORDER" means, at any time, 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.
"CIBC" is defined in the PREAMBLE of the Credit Agreement.
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"CLARK COUNTY CODE" is defined in CLAUSE (B) of SECTION 7.1.19 of the
Credit Agreement.
"CLOSING" is defined in SECTION 5.1 of the Credit Agreement.
"CLOSING DATE" means the Business Day, if any, prior to the Term B and Term
C Loan Commitment Termination Date, on which the conditions in ARTICLE V of the
Credit Agreement are satisfied.
"CODE" means the Internal Revenue Code of 1986, and the regulations
thereunder, in each case as amended, reformed or otherwise modified from time to
time.
"COMMITMENT" means, as the context may require, a Term A Loan Commitment, a
Term B Loan Commitment, a Term C Loan Commitment or a Letter of Credit
Commitment made by a Lender under the Credit Agreement.
"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 or the Letter of Credit Commitment Amount.
"COMMITMENT LETTER" means the Commitment Letter, dated December 4, 1997,
between the Arrangers, the Borrower and the Sponsors as thereafter from time to
time amended.
"COMMITMENT TERMINATION DATE" means, as the context may require, the Term A
Loan Commitment Termination Date or the Term B Loan and Term C Loan Commitment
Termination Date.
"COMMITMENT TERMINATION EVENT" means
(a) the occurrence of any Event of Default described in CLAUSES (A)
through (E) of SECTION 8.1.10 of the Credit Agreement; or
(b) the occurrence and continuance of any other Event of Default and
either (x) the declaration of all or any portion of the Loans to be
immediately due and payable pursuant to SECTION 8.3 of the Credit Agreement
or (y) the giving of notice by the
A-14
Administrative Agent, acting at the direction of the Required Lenders, to
the Borrower that the Commitments have been terminated.
"COMMON PARKING AREA USE AGREEMENT" means the Common Parking Area Use
Agreement to be entered into between the Borrower and Aladdin Bazaar in form and
substance satisfactory to the Administrative Agent determined in good faith in
its sole discretion, and as thereafter from time to time amended, supplemented,
amended and restated or otherwise modified in accordance with the terms of the
Credit Agreement.
"COMPLETION" means that each of the following has occurred:
(a) the construction of the Hotel/Casino and any Tenant Improvements
have been completed substantially in accordance with the Credit Agreement,
the Plans and Specifications, the provisions of the Reciprocal Easement
Agreement applicable to the Hotel/Casino and all of the other Operative
Documents to the extent that the development, construction, use or
operation of the Hotel/Casino are affected thereby, except for the Main
Project Punchlist Items applicable to the Hotel/Casino, and in substantial
compliance with all Legal Requirements pertaining to the construction of
the Hotel/Casino so as to allow the Hotel/Casino to be utilized for its
intended purpose;
(b) reasonable and safe means of access and facilities necessary for
the use and occupancy of the Hotel/Casino have been installed and are
operational including corridors, elevators, stairways, heating,
ventilation, air conditioning, sanitary, water and electrical facilities
and all security systems and life safety systems required by the Plans and
Specifications, the Reciprocal Easement Agreement, the other Operative
Documents and all Legal Requirements and that the Borrower has made
arrangements (from the Energy Project or an alternative source) to obtain
reliable electrical and other utility services at appropriate levels
required to start up, operate and maintain the Hotel/Casino in a safe,
efficient and reliable manner; and
(c) there are no outstanding claims or Liens by any Contractor or
Subcontractor or any other Person against any portion of the Hotel/Casino
Component except for Permitted Liens and Permitted Encumbrances.
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"COMPLETION CERTIFICATE" means, collectively, the Borrower's Completion
Certificate and the Construction Consultant's Completion Certificate in the form
of EXHIBITS S-1 and S-2 to the Credit Agreement, respectively.
"COMPLETION DATE" means the date on which Completion occurs but in no event
shall the Completion Date extend beyond the Outside Completion Deadline, time
being of the essence as to the Borrower.
"COMPLETION GUARANTOR" means, jointly and severally, each of London Clubs,
ABH and the Trust.
"COMPLETION GUARANTY" means, on any date, the Guaranty of Performance and
Completion, as originally in effect on the Closing Date, by the Completion
Guarantors in favor of the Lenders substantially in the form of EXHIBIT C to the
Credit Agreement and as thereafter from time to time amended, supplemented,
amended and restated or otherwise modified.
"COMPLEX" is defined in the FOURTH RECITAL of the Credit Agreement and is
more fully described in EXHIBIT N-2 to the Credit Agreement.
"COMPLIANCE CERTIFICATE" means a certificate duly completed and executed by
an Authorized Representative of the Borrower substantially in the form of
EXHIBIT R to the Credit Agreement, as amended, supplemented, amended and
restated or otherwise modified from time to time, together with such changes
thereto as the Administrative Agent may from time to time reasonably request for
the purpose of monitoring the Borrower's compliance with the financial covenants
contained in the Credit Agreement.
"CONSENT" means a consent, substantially in the form of EXHIBIT I to the
Credit Agreement, to the collateral assignment by the Borrower of the Main
Project Documents.
"CONSTRUCTION BENCHMARK SCHEDULE" means the schedule for construction and
completion of each Construction Component, the Main Project as a whole and the
other work that the Borrower is required to perform pursuant to the Operative
Documents in substantially the form of EXHIBIT X-1 to the Credit Agreement (as
amended from time to time in accordance with the terms of the Credit Agreement)
which (w) shall demonstrate that Substantial Completion will occur on or before
the Outside Completion Deadline, (x) includes a statement from the Owner
Representa-
A-16
tive and the Design/Builder that the Construction Benchmark Schedule is
realistic and can be adhered to (subject to Force Majeure Events) in completing
the Main Project in accordance with the Plans and Specifications, (y) shows on a
monthly basis the anticipated progress of the Work and other activities
pertaining to the construction of the Hotel/Casino Component, the Energy Project
Component and Theater renovations, and (z) the Construction Consultant has
reviewed and certified in the Construction Consultant's Closing Certificate that
the statement from the Owner Representative in ITEM (X) is reasonable and that
it is appropriate for the Administrative Agent to rely thereon and on the other
schedules and benchmarks set forth in the Construction Benchmark Schedule.
"CONSTRUCTION COMPONENT" means the Hotel/Casino Component, the Energy
Project Component or the Equipment Component.
"CONSTRUCTION CONSULTANT" means Rider Hunt (NV), L.L.C. or any other Person
designated from time to time by the Administrative Agent to serve as the
Construction Consultant under the Credit Agreement and the Disbursement
Agreement.
"CONSTRUCTION CONSULTANT ENGAGEMENT AGREEMENT" means the Engagement Letter,
dated as of January 28, 1998, by and among the Construction Consultant, the
Borrower, the Administrative Agent, the Disbursement Agent and the Discount Note
Indenture Trustee.
"CONSTRUCTION CONSULTANT'S CLOSING CERTIFICATE" means a closing certificate
in the form of EXHIBIT Q-2 to the Credit Agreement.
"CONSTRUCTION CONSULTANT'S COMPLETION CERTIFICATE" means a certificate in
the form of EXHIBIT S-2 to the Credit Agreement.
"CONSTRUCTION CONSULTANT'S FINAL COMPLETION CERTIFICATE" means a
certificate in the form of EXHIBIT U-2 to the Credit Agreement.
"CONSTRUCTION CONSULTANT'S REPORT" means a report of the Construction
Consultant delivered to the Disbursement Agent and the Administrative Agent
pursuant to SECTION 3.1.10 of the Disbursement Agreement which shall include an
analysis of the Plans and Specifications, the Main Project Budget, the
Construction Benchmark Schedule, the Contracts, to the extent available, the
construction and renovation of the Theater the construction of the Energy
Project to be performed by
A-17
the Energy Provider under the Energy Project Ground Lease and the Energy Project
Development Agreement, and all other reports submitted to the Administrative
Agent and stating, among other things, that (x) the Construction Consultant has
reviewed the Main Project Documents, the Plans and Specifications, and other
material information deemed necessary by the Construction Consultant for the
purpose of evaluating whether the Main Project can be constructed and completed
in the manner contemplated by the Operative Documents and (y) based on its
review of such information, the Construction Consultant is of the opinion that
the Main Project can be constructed in the manner contemplated by the Operative
Documents and, in particular, that the Main Project can be constructed and
completed in accordance with the Main Project Documents and the Plans and
Specifications within the parameters set by the Construction Benchmark Schedule
and the Main Project Budget. Such report shall contain an analysis reasonably
satisfactory to the Administrative Agent demonstrating the adequacy of the Main
Project Budget to complete the Main Project (and any improvements to be
completed by the Borrower pursuant to the Reciprocal Easement Agreement) in
accordance with the Construction Benchmark Schedule, confirmation that the
Construction Benchmark Schedule is realistic, and verifying that the information
delivered by the Borrower relating to the Complex and any improvements to be
completed by the Borrower pursuant to the Reciprocal Easement Agreement are
accurate.
"CONSTRUCTION EXPENSES" means all Main Project Costs, EXCLUDING, HOWEVER,
Pre-Opening Expenses, Debt Service due and payable after the Conversion Date and
Issuance Fees and Expenses.
"CONSTRUCTION NOTE DISBURSEMENT ACCOUNT" is defined in the Holdings
Collateral Account Agreement.
"CONTINGENT LIABILITY" means, relative to any Person, any agreement,
undertaking or arrangement by which such Person guarantees, endorses or
otherwise becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment, to supply
funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor
against loss) the Indebtedness of any other Person (other than by endorsements
of instruments in the course of collection), or guarantees the payment of
dividends or other distributions upon the shares of any other Person. The
amount of any Person's obligation under any Contingent Liability shall (subject
to any limitation set forth therein) be deemed to be the outstanding principal
amount of the debt, obligation or other liability guaranteed thereby.
A-18
"CONTINUATION/CONVERSION NOTICE" means a notice of continuation or
conversion and certificate duly executed by an Authorized Representative of the
Borrower substantially in the form of EXHIBIT M to the Credit Agreement.
"CONTRACT" means any contract entered into from time to time by the
Borrower with any Contractor for performance of services or sale of goods or
services in connection with the design, engineering, installation, construction,
operation or maintenance of the Main Project, including all warranties and
guarantees.
"CONTRACT AMENDMENT CERTIFICATE" means a Contract Amendment Certificate
substantially in the form of EXHIBIT Z to the Credit Agreement.
"CONTRACTOR" means any architect, consultant, designer, contractor,
subcontractor, supplier, laborer or any other Person engaged by the Borrower in
connection with the design, engineering, installation and construction of the
Main Project (EXCLUDING, HOWEVER, the Design/Builder).
"CONTROLLED GROUP" means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with the Borrower, are
treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
"CONVERSION DATE" means the date on which either of the following first
occurs:
(a) the relevant Governmental Instrumentality issues a Main Project
Certificate of Occupancy (which must include appropriate parking
facilities) and operating permit for the Energy Project; or
(b) the Administrative Agent and the Construction Consultant
determine that Completion of the Main Project has occurred.
A-19
"CREDIT EXTENSION" means, as the context may require,
(a) the making of a Loan by a Lender; or
(b) the issuance of any Letter of Credit, or the extension of any
Stated Expiry Date of any existing Letter of Credit, by an Issuer.
"CREDIT EXTENSION REQUEST" means, as the context may require, any Borrowing
Request or Letter of Credit Issuance Request.
"CURRENT COMPLIANCE CERTIFICATE" means the Compliance Certificate most
recently delivered by the Borrower to the Administrative Agent pursuant to
CLAUSE (D) of SECTION 7.1.1 of the Credit Agreement. Changes in the Applicable
Base Rate Margin or Applicable LIBO Rate Margin resulting, after the Conversion
Date, from a change in the Total Debt to EBITDA Ratio shall become effective
upon delivery by the Borrower to the Administrative Agent of a new Compliance
Certificate pursuant to CLAUSE (D) of SECTION 7.1.1 of the Credit Agreement. If
the Borrower shall fail to deliver a Compliance Certificate within the number of
days after the end of any Fiscal Quarter as required pursuant to CLAUSE (D) of
SECTION 7.1.1 of the Credit Agreement (without giving effect to any grace
period), the Applicable Base Rate Margin or Applicable LIBO Rate Margin, as the
case may be, from and including the first day after the date on which such
Compliance Certificate was required to be delivered to but not including the
date the Borrower delivers to the Administrative Agent a Compliance Certificate
shall conclusively equal the highest Applicable Base Rate Margin or Applicable
LIBO Rate Margin, as the case may be, set forth in the definition of such term.
"DEBT SERVICE" means all principal repayments or interest and other amounts
payable or accrued from time to time under any Loan Document or the Approved
Equipment Funding Commitments.
"DEED OF TRUST" means, on any date, the Deed of Trust, Assignment of Rents
and Leases, Security Agreement and Fixture Filing in the form of EXHIBIT B to
the Credit Agreement, as originally in effect on the date on which it is
recorded, made by the Borrower, as trustor, to the trustee named therein, for
the benefit of the Administrative Agent and the Lenders, as beneficiaries
covering the Site and as
A-20
thereafter from time to time amended, supplemented, amended and restated or
otherwise modified.
"DEFAULT" means any Event of Default or any condition, occurrence or event
which, after notice or lapse of time or both, would constitute an Event of
Default.
"DEFAULTING LENDER" means any Lender with respect to which a Lender Default
is in effect.
"DESERT PASSAGE" is defined in CLAUSE (B) of the FOURTH RECITAL of the
Credit Agreement.
"DESIGN/BUILD CONTRACT" means, on any date, the Design/Build Contract, as
originally in effect on the Closing Date, between the Borrower and the
Design/Builder and as thereafter from time to time amended, supplemented,
amended and restated or otherwise modified in accordance with the terms of the
Credit Agreement.
"DESIGN/BUILD CONTRACT TIME" is defined in SECTION 14.1 of the Design/Build
Contract.
"DESIGN/BUILDER" means Fluor Daniel, Inc., a California corporation.
"DESIGN/BUILDER CONSENT AND ACKNOWLEDGMENT" means the Consent and
Acknowledgment by the Design/Builder in favor of the Lenders and the
Administrative Agent dated as of the Closing Date.
"DESIGN/BUILD FINAL COMPLETION" means "FINAL COMPLETION" as defined in
SECTION 31.9 of the General Conditions annexed to the Design/Build Contract as
ATTACHMENT D.
"DEVELOPMENT AGREEMENT" means, on any date, the Aladdin Hotel & Casino
Agreement, dated March 18, 1997, among Holdings, Aladdin Management Corporation
and the County of Clark, as assigned by Holdings and Aladdin Management
Corporation to the Borrower, and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified in accordance with the
terms of the Credit Agreement.
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"DIRECT COSTS" means all Main Project Costs expended or incurred by the
Borrower for labor, services, materials, tools, utilities, equipment, fixtures
and furnishings in connection with the construction of the Main Project all as
set forth on the Main Project Budget.
"DISBURSEMENT AGENT" means Scotiabank, in its capacity as the disbursement
agent under the Disbursement Agreement and its successors in such capacity.
"DISBURSEMENT AGREEMENT" means, on any date, the Disbursement Agreement, as
originally in effect on the Closing Date, among the Borrower, Holdings, the
Administrative Agent, the Discount Note Indenture Trustee, the Disbursement
Agent, the Servicing Agent and the Investment Intermediary and as thereafter
from time to time amended, supplemented, amended and restated or otherwise
modified.
"DISCLOSURE SCHEDULE" means the Disclosure Schedule attached to the Credit
Agreement as SCHEDULE I, as it may be amended, supplemented, amended and
restated or otherwise modified from time to time by the Borrower with the
written consent of the Administrative Agent and the Required Lenders.
"DISCOUNT NOTE" means the 131/2% Series A and B Senior Discount Notes due
2010 of Holdings and Capital issued on the Closing Date for gross proceeds of
$115,000,000.
"DISCOUNT NOTE INDENTURE" means, on any date, the Indenture relating to the
Discount Notes, as originally in effect on the Effective Date, among Holdings,
Capital and the Discount Note Indenture Trustee and as thereafter from time to
time amended, supplemented, amended and restated or otherwise modified in
accordance with the terms of the Credit Agreement.
"DISCOUNT NOTE INDENTURE TRUSTEE" means State Street Bank and Trust
Company, in its capacity as the indenture trustee for the Discount Noteholders
under the Discount Note Indenture.
"DISCOUNT NOTE OFFERING CIRCULAR" means the offering memorandum, dated
February 14, 1998, with respect to the units, consisting of the Discount Notes
offered by Holdings and Capital and the Warrants offered by Enterprises.
A-22
"DISCOUNT NOTE PURCHASE AGREEMENT" means the Purchase Agreement with
respect to the Discount Notes and Warrants, dated as of February 18, 1998, among
Holdings, Capital, Enterprises, AHL, the Trust and Merrill Lynch and First
Boston (as representatives of the several initial purchasers).
"DISCOUNT NOTEHOLDER" means the duly registered holder of a Discount Note.
"DOCUMENTATION AGENT" is defined in the PREAMBLE of the Credit Agreement.
"DOLLAR" and the symbol "$" mean lawful money of the United States.
"DOWNGRADED LENDER" is defined in CLAUSE (B) of SECTION 4.11 of the Credit
Agreement.
"EBITDA" means, for the Borrower only, for any applicable period, the sum
(without duplication) of
(a) Net Income for such period,
PLUS
(b) the amount deducted by the Borrower, in determining Net Income
for such period, representing
(i) Interest Expense of the Borrower;
PLUS
(ii) the amount deducted, in determining Net Income, of all
federal, state and local income taxes (whether paid in cash or
deferred) of the Borrower or, if the Borrower is treated as a
A-23
pass-through entity or is not treated as a separate entity for United
States federal income tax purposes, the amount of Restricted Payments
made by the Borrower in accordance with CLAUSE (C) of SECTION 7.2.6 of
the Credit Agreement, subject to the terms of the Credit Agreement;
PLUS
(iii) depreciation of assets of the Borrower;
PLUS
(iv) amortization;
PLUS
(v) the amount of Cash Equity Contributions (as defined in the
Keep-Well Agreement);
PLUS
(vi) the amount of Cash Contributions to Capital;
PROVIDED, HOWEVER, that in computing EBITDA for purposes of determining the
"Total Debt to EBITDA Ratio" in CLAUSE (H)(I)(B) of SECTION 7.2.6 of the Credit
Agreement or the amount of "Excess Cash Flow", the "Applicable Base Rate Margin"
or the "Applicable LIBO Rate Margin", SUBCLAUSES (B)(V) and (B)(VI) shall be
excluded from such computation; PROVIDED FURTHER, HOWEVER, that in computing
EBITDA for any period commencing on the Conversion Date and ending as of the
close of any Fiscal Quarter on or prior to the first anniversary of the
Conversion
A-24
Date, EBITDA for such period shall equal the product of (x) the sum of the
amounts determined pursuant to CLAUSES (A) and (B) for such period MULTIPLIED BY
(y) a fraction, the numerator of which is equal to 365 and the denominator of
which is equal to the number of days that have elapsed in such period.
"EFFECTIVE DATE" means the date the Credit Agreement becomes effective
pursuant to SECTION 10.8 thereof.
"EMPLOYMENT AGREEMENT" means, collectively, (u) the Amended Employment and
Consulting Agreement among Holdings, the Borrower and Richard J. Goeglein
effective January 1, 1997, (v) the Amended Employment Agreement among Holdings,
the Borrower and James H. McKennon effective April 15, 1997, (w) the Amended
Employment Agreement among Holdings, the Borrower and Cornelius T. Klerk
effective July 1, 1997, (x) the Amended Employment Agreement among Holdings, the
Borrower and Lee A. Galati effective July 1, 1997, (y) the Amended Employment
Agreement among Holdings, the Borrower and Jose A. Rueda effective July 1, 1997
and (z) the Amended Consulting Agreement between GAI, LLC, Holdings and the
Borrower effective January 1, 1997.
"ENERGY PROJECT" is defined in CLAUSE (E) of the FOURTH RECITAL of the
Credit Agreement.
"ENERGY PROJECT COMMITMENT" means the commitment (as set forth in the
letter agreement, dated October 21, 1997, between the Energy Project Provider
and AHL) of the Energy Project Provider to enter into the Energy Project Ground
Lease, the Energy Project Development Agreement and the Energy Project Service
Agreement.
"ENERGY PROJECT COMPLETION" means that
(a) the construction of the Energy Project has been completed
substantially in accordance with the Energy Project Ground Lease and the
provisions of the Reciprocal Easement Agreement applicable to the Energy
Project except for any punchlist items applicable to the Energy Project and
in substantial compliance with all Legal Requirements pertaining to the
construction of the Energy Project so as to allow the Energy Project to be
utilized for its intended purposes;
A-25
(b) reasonable and safe means of access and facilities necessary for
the use and operation of the Energy Project have been installed and are
operational;
(c) the Borrower has certified to the Administrative Agent that (1)
arrangements have been made to obtain reliable electric and other utility
services at the appropriate levels required for the operation of the
Hotel/Casino and, to the extent applicable, other parts of the Complex that
are subject to the Energy Service Agreement, (2) all other conditions
precedent in the Energy Project Ground Lease relating to construction,
installation, start-up and test activities have been satisfied in all
material respects, and (3) there are no outstanding claims or Liens by any
contractor or subcontractor or any other Person against any portion of the
Energy Project Component except for Permitted Liens and Permitted
Encumbrances.
"ENERGY PROJECT COMPONENT" means the portion of the Complex described in
EXHIBIT N-9 to the Credit Agreement.
"ENERGY PROJECT DEVELOPMENT AGREEMENT" means, on any date, the Development
Agreement, as originally in effect on the Closing Date, between the Borrower and
the Energy Project Provider and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified in accordance with the
terms of the Credit Agreement.
"ENERGY PROJECT EASEMENTS" means the easements appurtenant, easements in
gross, license agreements and other right running for the benefit of the Energy
Project Provider and/or appurtenant to the Energy Project Ground Lease,
including those certain easements and licenses described in each Title Policy.
"ENERGY PROJECT GROUND LEASE" means, on any date, the Ground Lease, as
originally in effect on the Effective Date, between the Borrower and the Energy
Project Provider and as thereafter from time to time amended, supplemented,
amended and restated or otherwise modified in accordance with the terms of the
Credit Agreement.
"ENERGY PROJECT GUARANTOR" means Unicom Corporation, an Illinois
corporation.
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"ENERGY PROJECT GUARANTY" means the Guaranty, dated as of December 3, 1997,
executed by the Energy Project Guarantor to and for the benefit of the Borrower
and as thereafter from time to time amended, supplemented, amended and restated
or otherwise modified in accordance with the terms of the Credit Agreement.
"ENERGY PROJECT PROVIDER" means Northwind Aladdin, LLC, a Nevada
limited-liability company.
"ENERGY PROJECT SERVICE AGREEMENT" means, on any date, the Energy Services
Agreement, as originally in effect on the Effective Date, between the Borrower
and the Energy Project Provider and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified in accordance with the
terms of the Credit Agreement.
"ENTERPRISES" means Aladdin Gaming Enterprises, Inc., a Nevada corporation.
"ENTERPRISES PLEDGE AGREEMENT" means, on any date, the Pledge Agreement
executed and delivered by an Authorized Representative of Enterprises pursuant
to CLAUSE (E) of SECTION 5.1.3 of the Credit Agreement, as originally in effect
on the Closing Date, in substantially the form of EXHIBIT E-4 to the Credit
Agreement and as thereafter from time to time amended, supplemented, amended and
restated or otherwise modified.
"ENVIRONMENTAL CLAIM" means any and all obligations, liabilities, losses,
administrative, regulatory or judicial actions, suits, demands, decrees, claims,
liens, judgments, warning notices, notices of noncompliance or violation,
investigations, proceedings, removal or remedial actions or orders, or damages
(foreseeable and unforeseeable, including consequential and punitive damages),
penalties, fees, out-of-pocket costs, expenses, disbursements, attorneys' or
consultants' fees, relating in any way to any Environmental Law or any Permit
issued under any such Environmental Law including (x) any and all Claims by
Governmental Instrumentalities for enforcement, cleanup, removal, response,
remedial or other actions or damages pursuant to any applicable Environmental
Law and (y) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from
Hazardous Substances or arising from alleged injury or threat of injury to
health, safety or the environment.
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"ENVIRONMENTAL CONSULTANT" means ERM-Northeast, Inc., or any other Person
designated from time to time by the Administrative Agent in its sole discretion
to serve as the Environmental Consultant.
"ENVIRONMENTAL INDEMNITY" means, on any date, the Environmental Indemnity
Agreement, as originally in effect on the Effective Date, from the Borrower, the
Trust and London Clubs for the benefit of the Administrative Agent on behalf of
the Lenders in the form of EXHIBIT K to the Credit Agreement and as thereafter
from time to time amended, supplemented, amended and restated or otherwise
modified.
"ENVIRONMENTAL LAW" means any of:
(a) the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. Section 9601, ET SEQ.)
("CERCLA");
(b) the Federal Water Pollution Control Act (33 U.S.C. Section 1251,
ET SEQ.) ("CLEAN WATER ACT" OR "CWA");
(c) the Resource Conservation and Recovery Act (42 U.S.C. Section
6901, ET SEQ.) ("RCRA");
(d) the Atomic Energy Act of 1954 (42 U.S.C. Section 2011, ET SEQ.);
(e) the Clean Air Act (42 U.S.C. Section 7401, ET SEQ.);
(f) the Emergency Planning and Community Right to Know Act (42 U.S.C.
Section 11001, ET SEQ.);
(g) the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.
Section 136, ET SEQ.) ("FIFRA");
(h) the Oil Pollution Act of 1990 (P.L. 101-380, 104 Stat. 486);
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(i) the Safe Drinking Water Act (42 U.S.C. Sections 300f, ET SEQ.)
("SDWA");
(j) the Surface Mining Control and Reclamation Act of 1974 (30 U.S.C.
Sections 1201, ET SEQ.);
(k) the Toxic Substances Control Act (15 U.S.C. Section 2601, ET
SEQ.) ("TSCA");
(l) the Hazardous Materials Transportation Act (49 U.S.C. Section
1801, ET SEQ.) ("HMTA");
(m) the Uranium Mill Tailings Radiation Control Act of 1978 (42
U.S.C. Section 7901, ET SEQ.) ("UMTRCA");
(n) the Occupational Safety and Health Act (29 U.S.C. Section 651, ET
SEQ.) ("OSHA");
(o) the Nevada Hazardous Materials law (NRS Chapter 459);
(p) the Nevada Solid Waste/Disposal of Garbage or Sewage law (NRS
444.440 to 444.650, inclusive);
(q) the Nevada Water Controls/Pollution law (NRS Chapter 445A);
(r) the Nevada Air Pollution law (NRS Chapter 445B);
(s) the Nevada Cleanup of Discharged Petroleum law (NRS 590.700 to
590.920, inclusive);
(t) the Nevada Control of Asbestos law (NRS 618.750 to 618.850);
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(u) the Nevada Appropriation of Public Waters law (NRS 533.324 to
533.4385, inclusive);
(v) the Nevada Artificial Water Body Development Permit law (NRS
502.390);
(w) the Nevada Protection of Endangered Species, Endangered Wildlife
Permit (NRS 503.585) and Endangered Flora Permit law (NRS 527.270); and
(x) all other Federal, state and local Legal Requirements which
govern Hazardous Substances, and the regulations adopted and publications
promulgated pursuant to all such foregoing laws;
in each case as amended by an amendment thereto or succeeded by a successor law,
statute or regulation thereto.
"ENVIRONMENTAL MATTER" means any:
(a) release, emission, entry or introduction into the air including
the air within buildings and other natural or man-made structures above
ground;
(b) discharge, release or entry into water including into any river,
watercourse, lake or pond (whether natural or artificial or above ground or
which joins or flows into any such water outlet above ground) or reservoir,
or the surface of the riverbed or of other land supporting such waters,
ground waters, sewer or the sea;
(c) deposit, disposal, keeping, treatment, importation, exportation,
production, transportation, handling, processing, carrying, manufacture,
collection, sorting or presence of any Hazardous Substance (including, in
the case of waste, any substance which constitutes a scrap material or an
effluent or other unwanted surplus substance arising from the application
of any process or activity (including making it reusable or reclaiming
substances from it) and any substance or article which is required to be
disposed of as being broken, worn out, contaminated or otherwise spoiled);
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(d) nuisance, noise, defective premises, health and safety at work,
industrial illness, industrial injury due to environmental factors,
environmental health problems (including asbestosis or any other illness or
injury caused by exposure to asbestos) or genetically modified organisms;
(e) conservation, preservation or protection of the natural or
man-made environment or any living organisms supported by the natural or
man-made environment; or
(f) other matter howsoever directly affecting the environment or any
aspect of it.
"EQUIPMENT COMPONENT" means the equipment, fixtures and other items
described in EXHIBIT N-10 to the Credit Agreement.
"EQUITY INTEREST" means, relative to any Person, Capital Stock and all
warrants, options or other rights to acquire Capital Stock (EXCLUDING, HOWEVER,
any debt security that is convertible into, or exchangeable for, Capital Stock)
of such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections thereto.
"ERISA PLAN" means any employee benefit plan (x) maintained by the Borrower
or any member of the Controlled Group, or to which the Borrower or any member of
the Controlled Group contributes or is obligated to contribute, for its
employees and (y) covered by Title IV of ERISA or to which Section 412 of the
Code applies.
"EVENT OF DEFAULT" is defined in SECTION 8.1 of the Credit Agreement.
"EVENT OF LOSS" means, relative to any property or asset (tangible or
intangible, real or personal), (x) any loss, destruction or damage of such
property or asset, (y) any actual condemnation, seizure or taking by exercise of
the power of eminent domain or otherwise of all or a part of such property or
asset, or confiscation
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of all or a part of such property or asset or the requisition of the use of all
or a part of such property or asset or (z) any settlement in lieu of ITEM (Y).
"EXCESS CASH FLOW" means, for any Fiscal Quarter, the excess (if any), of
(a) EBITDA for such Fiscal Quarter
OVER
(b) the sum (during such Fiscal Quarter) of
(i) Interest Expense of the Borrower actually paid in cash by
the Borrower;
PLUS
(ii) scheduled payments, to the extent actually made, of the
principal amount of the Loans pursuant to SECTION 3.1.1 of the Credit
Agreement and scheduled payments, to the extent actually made, with
respect to the FF&E Financing;
PLUS
(iii) the amount of all federal, state and local income taxes
(whether paid in cash or deferred) of the Borrower paid in cash by the
Borrower or, if the Borrower is treated as a pass-through entity or is
not treated as a separate entity for
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United States federal income tax purposes, the amount of Restricted
Payments made in cash by the Borrower in accordance with CLAUSE (C) of
SECTION 7.2.6 of the Credit Agreement, subject to the terms thereof;
PLUS
(iv) the amount of all Restricted Payments on the Borrower Series
A Preferred Membership Interests made in accordance with CLAUSE (D) of
SECTION 7.2.6 of the Credit Agreement;
PLUS
(v) Capital Expenditures actually made or reserved by the
Borrower.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXISTING INDEBTEDNESS" means Indebtedness of the Borrower in existence on
the Effective Date (after giving effect to payment of Indebtedness that is being
discharged and retired on the Closing Date, including all Indebtedness to be
Paid) and identified in ITEM (B) OF SECTION 7.2.2 ("Existing Indebtedness") of
the Disclosure Schedule.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate PER
ANNUM equal for each day during such period to
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published
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for such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it.
"FEE LETTER" means, the Arrangers' Fee Letter or the Scotiabank Fee Letter.
"FF&E" means all furnishings, fixtures and equipment other than the
Specified Equipment and the Gaming Equipment.
"FF&E FINANCING" means the incurrence of Indebtedness, the proceeds of
which are utilized solely to finance or refinance the acquisitions of (or the
incurrence of Capitalized Lease Liabilities by the Borrower with respect to) the
Gaming Equipment and the Specified Equipment.
"FF&E LEASE" means one or more leases entered into by the Borrower giving
rise to synthetic lease liabilities to one or more lessors (the "FF&E LESSORS")
covering a portion of the FF&E, the Specified Equipment and/or the Gaming
Equipment.
"FF&E LEASE DOCUMENT" means the FF&E Lease and any other document executed
and delivered by the Borrower and the FF&E Lessors in connection therewith, as
the same may be amended, supplemented, amended and restated, replaced or
otherwise modified from time to time in accordance with the terms of the Credit
Agreement.
"FF&E LESSOR" is defined in the definition of "FF&E Lease".
"FF&E RESERVE" is defined in SECTION 7.1.3 of the Credit Agreement.
"FINAL COMPLETION" means that (r) Design/Build Final Completion shall have
occurred, (s) Energy Project Completion shall have occurred, (t) Theater
Renovation Completion shall have occurred, (u) all other construction work with
respect to the Main Project shall have been substantially completed in
accordance
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with the Main Project Document applicable thereto so as to allow such
improvements to be utilized for their intended purposes and in substantial
compliance with all Legal Requirements applicable thereto, (v) each of the Hotel
Casino, the Energy Project and the Theater shall have received a permanent Main
Project Certificate of Occupancy from the Building Department and the Energy
Project shall have received all Permits required by the Governmental
Instrumentality having or asserting jurisdiction over the operation of the
Energy Project (and a copy of each such certificate shall have been delivered to
the Administrative Agent), (w) a Notice of Completion shall have been posted
with respect to Hotel/Casino, the Energy Project and the Theater, as required,
and recorded in the Office of the County, (x) the Borrower shall have delivered
to the Administrative Agent its Final Completion Certificate certifying to the
extent set forth therein that all Main Project Punchlist Items have been
completed, (y) the Construction Consultant shall have delivered to the
Administrative Agent its Final Completion Certificate in which it verifies the
statements in items (r), (s), (t), (u), (v), and (w) and certifies that it is
appropriate for the Administrative Agent to rely on the Final Completion
Certificate of the Borrower delivered to the Administrative Agent pursuant to
ITEM (X) and (z) the Mall Project Parcel and the Music Project Parcel shall be
separate legal parcels in accordance with SECTION 7.1.19 of the Credit
Agreement.
"FINAL COMPLETION CERTIFICATE" means a Borrower's Final Completion
Certificate or a Construction Consultant's Final Completion Certificate in the
form of EXHIBIT U-1 or EXHIBIT U-2 to the Credit Agreement.
"FINAL COMPLETION DATE" means the date on which Final Completion occurs.
"FINAL PLANS AND SPECIFICATIONS" means, relative to any particular portion
of the Work or other improvement, Plans and Specifications for such portion
which (x) have received final approval from all Governmental Instrumentalities
required to approve such Plans and Specifications prior to completion of the
Work or improvements and (y) contain sufficient specificity to permit the
completion of such portion of the Work or other improvements.
"FISCAL QUARTER" or "FQ" means a calendar quarter ending on the last day of
March, June, September or December; references to a FQ with a following number
(E.G., FQ1) refer to the number of Fiscal Quarters then to have elapsed in whole
or in part since the Conversion Date.
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"FISCAL YEAR" means any period of twelve consecutive calendar months ending
on December 31; references to a Fiscal Year with a number corresponding to any
calendar year (E.G., the "1998 Fiscal Year") refer to the Fiscal Year ending on
December 31 of such calendar year.
"FLEET COMMITMENT" means, on any date, the Commitment Letter, as originally
in effect on the Effective Date, between Fleet National Bank and Aladdin Bazaar
and as thereafter from time to time amended, supplemented, amended and restated
or otherwise modified in accordance with the terms thereof.
"FLUOR" means Fluor Corporation, a California corporation.
"FLUOR GUARANTY" means, on any date, the Fluor Guaranty, as originally in
effect on the Effective Date, by Fluor in favor of the Borrower and as
thereafter from time to time amended, supplemented, amended and restated or
otherwise modified in accordance with the terms of the Credit Agreement.
"FORCE MAJEURE EVENT" means any event which is defined as "Force Majeure"
in the Design/Build Contract and/or that causes a delay in the construction of
the Main Project and is outside the Borrower's control but only to the extent
(a) such event does not arise out of (w) the negligence, willful
misconduct or inefficiencies of the Borrower, (x) late performance by the
Design/Builder or the Architect of Record, (y) any cause or circumstance
resulting in delays, stoppage or any other interference with the
construction of the Main Project caused by the insolvency, bankruptcy or
any lack of funds by the Borrower, any other Project Party, the Energy
Provider, the Energy Project Guarantor and/or the Architect of Record or
(z) delays, stoppage or other interference with the construction of the
Main Project caused by the insolvency, bankruptcy or any lack of funds by
Aladdin Bazaar, Aladdin Music and/or the construction contractors and
project architects with respect to the Mall Project, the Music Project
and/or the Energy Project; and
(b) such event consists of an act of God (such as tornado, flood,
hurricane, etc.), fires and other casualties; strikes, lockouts or other
labor disturbances (except to the extent taking place at the Site only);
riots, insurrections or civil commotions; embargos, shortages or
unavailability of materials, supplies, labor,
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equipment and systems that first arise after the Effective Date, but only
to the extent caused by another act, event or condition covered by this
CLAUSE (B); sabotage; vandalism; the requirements of law, statutes,
regulations and other Legal Requirements enacted after the Effective Date
(unless the Borrower should, in the exercise of due diligence and prudent
judgment, have anticipated such enactment); orders or judgments; or any
similar types of events;
PROVIDED, HOWEVER, that (x) the Borrower has sought to mitigate the impact of
the delay, (y) any delay resulting from the foregoing shall not exceed 365 days
and (z) the period during which a Force Majeure Event exists shall commence on
the date that the Borrower has given the Administrative Agent written notice
describing in reasonable detail the event which constitutes a Force Majeure
Event and the Administrative Agent has confirmed the existence of such Force
Majeure Event on the date of such notice and shall end on the date that such
Force Majeure Event no longer exists, whether or not notice is given to the
Administrative Agent, as determined by the Construction Consultant.
"F.R.S. BOARD" means the Board of Governors of the Federal Reserve System
or any successor thereto.
"GAAP" is defined in SECTION 1.4 of the Credit Agreement.
"GAI, LLC" means GAI, LLC, a Nevada limited-liability company.
"GAMING EQUIPMENT" means the gaming equipment and gaming devices which are
regulated gaming devices under any Nevada Gaming Law (such as slot machines,
cashless wagering systems and associated equipment) together with all
improvements and/or additions thereto financed by the $20,000,000 term loan
facility under the GECC Commitment.
"GAMING LICENSE" means any and all duly issued and valid licenses,
approvals, regulations, findings of suitability and authorizations relating to
gaming at the Hotel/Casino under the Nevada Gaming Laws or required by the
Nevada Gaming Authorities or necessary for the operation of gaming at the
Hotel/Casino.
"GECC" means General Electric Capital Corporation.
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"GECC COMMITMENT" means the commitment of GECC to enter into a $60,000,000
synthetic lease facility and a $20,000,000 term loan facility pursuant to that
certain commitment letter, dated as of January 23, 1998, between the Borrower
and GECC.
"GECC INTERCREDITOR AGREEMENT" means the Intercreditor Agreement to be
entered into between GECC and the Administrative Agent, initially in the form
approved by the Administrative Agent determined in good faith in its sole
discretion, and as from time to time thereafter amended, supplemented, amended
and restated or otherwise modified.
"GOVERNMENTAL INSTRUMENTALITY" means any national, state or local
government (whether domestic or foreign), any political subdivision thereof or
any other governmental, quasi governmental, judicial, public or statutory
instrumentality, authority, body, agency, bureau or entity (including the Nevada
Gaming Authorities, any zoning authority, the Federal Deposit Insurance
Corporation, the Comptroller of the Currency or the F.R.S. Board, any central
bank or any comparable authority) or any arbitrator with authority to bind a
party at law.
"GROUND LEASE" means, collectively, the Mall Project Ground Lease, the
Music Project Ground Lease and the Energy Project Ground Lease.
"GUARANTEED MAXIMUM PRICE" means the total costs payable by the Borrower to
the Design/Builder for the Work, which costs shall not exceed $267,000,000,
except as adjusted in accordance with the Credit Agreement and the Design/Build
Contract.
"GUARANTY DEPOSIT ACCOUNT" is defined in the Borrower Collateral Account
Agreement.
"HAZARDOUS SUBSTANCES" means (statutory acronyms and abbreviations having
the meaning given them in the definition of "Environmental Laws") substances
defined as "hazardous substances," "pollutants" or "contaminants" in Section 101
of the CERCLA; those substances defined as "hazardous waste," "hazardous
materials" or "regulated substances" by the RCRA; those substances designated as
a "hazardous substance" pursuant to Section 311 of the CWA; those substances
defined as "hazardous materials" in Section 103 of the HMTA; those substances
regulated as a hazardous chemical substance or mixture or as an imminently
hazardous chemical substance or mixture pursuant to Sections 6 or 7 of the TSCA;
those
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substances defined as "contaminants" by Section 1401 of the SDWA, if present in
excess of permissible levels; those substances regulated by the Oil Pollution
Act; those substances defined as a pesticide pursuant to Section 2(u) of the
FIFRA; those substances defined as a source, special nuclear or by-product
material by Section 11 of the AEA; those substances defined as "residual
radioactive material" by Section 101 of the UMTRCA; those substances defined as
"toxic materials" or "harmful physical agents" pursuant to Section 6 of the
OSHA); those substances defined as hazardous wastes in 40 C.F.R. Part 261.3;
those substances defined as hazardous waste constituents in 40 C.F.R. Part
260.10, specifically including Appendices VII and VIII of Subpart D of 40 C.F.R.
Part 261; those substances designated as hazardous substances in 40 C.F.R. Parts
116.4 and 302.4; those substances defined as hazardous substances or hazardous
materials in 49 C.F.R. Part 171.8; those substances regulated as hazardous
materials, hazardous substances or toxic substances in 40 C.F.R. Part 1910;
those substances defined as hazardous materials, hazardous substances or toxic
substances in any other Environmental Laws; and those substances defined as
hazardous materials, hazardous substances or toxic substances in the regulations
adopted and publications promulgated pursuant to said laws, whether or not such
regulations or publications are specifically referenced herein.
"HEDGING LIABILITY" means, relative to any Person, any liability of such
Person under any currency exchange agreement, interest rate swap agreement,
interest rate cap agreement or interest rate collar agreement, or any other
agreement designed to protect such Person against fluctuations in interest rates
or currency exchange rates including the Rate Protection Agreement.
"HEREIN", "HEREOF", "HERETO", "HEREUNDER" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"HOLDINGS" means Aladdin Gaming Holdings, LLC, a Nevada limited-liability
company.
"HOLDINGS COLLATERAL ACCOUNT AGREEMENT" means, on any date, the Holdings
Collateral Account Agreement, as originally in effect on the Closing Date,
between Holdings, the Investment Intermediary and the Disbursement Agent, for
the benefit of the Discount Note Indenture Trustee, and as thereafter from time
to time amended, supplemented, amended and restated or otherwise modified in
accordance with the terms of the Credit Agreement.
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"HOLDINGS COMMON MEMBERSHIP INTEREST" means a Common Share as defined in
the Organizational Documents of Holdings.
"HOLDINGS PLEDGE AGREEMENT" means, on any date, the Pledge Agreement
executed and delivered by an Authorized Representative of Holdings pursuant to
CLAUSE (A) of SECTION 5.1.3 of the Credit Agreement, as originally in effect on
the Closing Date, in substantially the form of EXHIBIT E-5 to the Credit
Agreement and as thereafter from time to time amended, supplemented, amended and
restated or otherwise modified.
"HOLDINGS SERIES A PREFERRED MEMBERSHIP INTERESTS" means the Series A
Preferred Shares as defined in the Organizational Documents of Holdings and
issued to LCNI or Sommer Enterprises pursuant thereto in consideration for any
payments to the Borrower required by London Clubs, the Trust or AHL pursuant to
the Keep-Well Agreement, the Completion Guaranty or the Noteholder Completion
Guaranty, as the case may be, when such payments are Cash Equity Contributions
(as defined in the Keep-Well Agreement).
"HOLDINGS SERIES B PREFERRED MEMBERSHIP INTERESTS" means the Series B
Preferred Shares as defined in the Organizational Documents of Holdings and
issued to LCNI or Sommer Enterprises pursuant thereto in consideration for any
payments to the Borrower required by London Clubs, the Trust or AHL pursuant to
the Keep-Well Agreement when such payments are Cash Equity Contributions (as
defined in the Keep-Well Agreement).
"HOTEL" is defined in CLAUSE (A) of the FOURTH RECITAL of the Credit
Agreement.
"HOTEL/CASINO" is defined in CLAUSE (A) of the FOURTH RECITAL of the Credit
Agreement.
"HOTEL/CASINO COMPONENT" means the portion of the Complex described in
EXHIBIT N-8 to the Credit Agreement.
"HOTEL/CASINO COMPONENT FUNDING SOURCE" means the Land Equity, the London
Clubs Contribution, the proceeds of the Borrower Series A Preferred Membership
Interests, the Loans, the Approved Equipment Funding Commitments, the amounts
payable to the Borrower by Aladdin Bazaar pursuant to Section 4.5
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of the Site Work Agreement, together with any amounts payable under the
Completion Guaranty from time to time.
"IMPERMISSIBLE QUALIFICATION" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of the Borrower, any other Aladdin Party, LCNI, London Clubs Holdings or London
Clubs, any qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters
relevant to such financial statement; or
(c) which relates to the treatment or classification of any item in
such financial statement and which, as a condition to its removal, would
require an adjustment to such item the effect of which would be to cause
the Borrower to be in default of any of its obligations under SECTION 7.2.4
of the Credit Agreement.
"IMPOSITION" means any real estate tax, payment in lieu of taxes or other
assessment levied, assessed or imposed against the portion of the Site owned by
the Borrower, and any water rates, sewer rentals or other governmental,
municipal or public dues, charges or impositions, of every nature and to
whomever assessed, that may now or hereafter be levied or assessed upon the
portion of the Site owned by the Borrower, or upon the rents, issues, income,
proceeds or profits thereof, whether the Imposition is levied directly or
indirectly against such portion of the Site owned by the Borrower or as excise
taxes or income taxes.
"IMPROVEMENT" means any building, structure or other improvements to be
located or constructed on the Main Project Parcel.
"IN BALANCE" will be deemed to exist when (x) the Unallocated Contingency
Balance equals or exceeds the Required Minimum Contingency, (y) after giving
effect to the requested Credit Extension, the Available Funds allocated to each
Line Item Category equals or exceeds for such Line Item Category the aggregate
of (1) the costs required to complete such Line Item Category, (2) the Retainage
Amount to be paid to Persons who have supplied labor or materials in connection
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with such Line Item Category and (3) the amount required to pay interest and all
other amounts due under the Credit Agreement and the Approval Equipment Funding
Commitments at the maximum rate of interest set forth in the Main Project Budget
through the Conversion Date and (z) the Guaranteed Maximum Price remains in
effect.
"INCLUDING" and "INCLUDE" means including, without limiting the generality
of any description preceding such term, and, for purposes of this Agreement and
each other Loan Document, the parties hereto agree that the rule of EJUSDEM
GENERIS shall not be applicable to limit a general statement, which is followed
by or referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"INDEBTEDNESS" means, relative to any Person, without duplication:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(b) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit (or reimbursement agreements in respect
thereof), whether or not drawn, and banker's acceptances issued for the
account of such Person;
(c) all obligations of such Person as lessee under leases which have
been or should be, in accordance with GAAP, recorded as Capitalized Lease
Liabilities;
(d) all other items which, in accordance with GAAP, would be included
as liabilities on the liability side of the balance sheet of such Person as
of the date at which Indebtedness is to be determined;
(e) net liabilities of such Person under all Hedging Liabilities;
(f) whether or not so included as liabilities in accordance with
GAAP, all obligations of such Person to pay the deferred purchase price of
property or services, and indebtedness
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(EXCLUDING, HOWEVER, prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements),
whether or not such indebtedness shall have been assumed by such Person or
is limited in recourse; and
(g) all Contingent Liabilities of such Person in respect of any of
the foregoing.
For all purposes of this Agreement, (x) the Indebtedness of any Person shall
include the proportion of Indebtedness of any partnership in which such Person
is a general partner or joint venturer with liability for the entire
indebtedness of the joint venture and (y) the amount of any Indebtedness
outstanding as of any date shall be (1) the accredited value thereof, in the
case of Indebtedness issued with original issue discount and (2) the principal
amount thereof, together with any interest thereon that is more than 30 days
past due, in the case of any other Indebtedness.
"INDEBTEDNESS TO BE PAID" means the Indebtedness identified in ITEM 5.1.10
on the DISCLOSURE SCHEDULE.
"INDEMNIFIED LIABILITY" is defined in SECTION 10.4 of the Credit Agreement.
"INDEMNIFIED PARTY" is defined in SECTION 10.4 of the Credit Agreement.
"INDEPENDENT CONSULTANT" means the Construction Consultant, the Insurance
Consultant, the Environmental Consultant or their successors engaged pursuant to
the Credit Agreement.
"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 fees set forth in the Fee Letters, interest on the
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 fees and disbursements of the attorneys for the
Administrative Agent.
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"INSTRUMENT" means any contract, agreement, indenture, mortgage, deed of
trust, document or writing (whether by formal agreement, letter or otherwise)
under which any obligation is evidenced, assumed or undertaken, or any Lien (or
right or interest therein) is granted or perfected.
"INSURANCE CONSULTANT" means Sedgwick of Tennessee, Inc. or its successor
appointed pursuant to SECTION 9.8 of the Credit Agreement.
"INSURANCE REQUIREMENT" means any provisions of any insurance policy
covering or applicable to the Borrower, the Main Project or any portion thereof,
all requirements of the issuer of any such policy and all orders, rules,
regulations and other requirements of the National Board of Fire Underwriters
(or any body exercising similar functions) applicable to or affecting the Main
Project or any portion thereof, any use or condition thereof or the Borrower.
"INTEREST COVERAGE RATIO" means, at the close of any Fiscal Quarter, the
ratio computed for the period consisting of such Fiscal Quarter (or such shorter
portion of any Fiscal Quarter after the occurrence therein of the Conversion
Date and each of the three immediately prior Fiscal Quarters (or such lesser
number of Fiscal Quarters to have closed since the Conversion Date) of:
(a) EBITDA for such period
TO
(b) Interest Expense of the Borrower for such period;
PROVIDED, HOWEVER, that in computing the Interest Coverage Ratio for any such
period ending on or prior to the first anniversary of the Conversion Date, the
amount determined pursuant to CLAUSE (B) shall equal the product of (x) the
Interest Expense for such period MULTIPLIED BY (y) a fraction, the numerator of
which is equal to 365 and the denominator of which is equal to the number of
days that have elapsed in such period.
"INTEREST EXPENSE" means, for any period, the aggregate cash interest
expense (net of cash interest income) of the Borrower (including, to the extent
the Borrower has any Contingent Liability in respect of such interest expense,
the interest expense of other Persons) for such period, as determined in
accordance with
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GAAP, including the portion of any payments made in respect of Capitalized Lease
Liabilities allocable to interest expense, but EXCLUDING, HOWEVER, deferred
financing costs and other non-cash interest expense.
"INTEREST PAYMENT ACCOUNT" means the account established by the Borrower
with the Disbursement Agent pursuant to the Borrower Collateral Account
Agreement into which the proceeds of the Loans shall be deposited by the
Administrative Agent from time to time.
"INTEREST PERIOD" means, relative to any LIBO Rate Loan, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to SECTION 2.3 or
SECTION 2.4 of the Credit Agreement and shall end on (but exclude) the day which
numerically corresponds to such date one, two, three, six or, if then generally
available from all Lenders, twelve months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such month), as the
Borrower may select in its relevant notice pursuant to SECTION 2.3 or SECTION
2.4 of the Credit Agreement; PROVIDED, HOWEVER, that
(a) the Borrower shall not be permitted to select Interest Periods to
be in effect at any one time which have expiration dates,
(1) in the case of Term A Loans made or maintained as LIBO Rate
Loans, occurring on more than eight different dates,
(2) in the case of Term B Loans made or maintained as LIBO Rate
Loans, occurring on more than four different dates, and
(3) in the case of Term C Loans made or main-
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tained as LIBO Rate Loans, occurring on more than four different
dates;
(b) if such Interest Period would otherwise end on a day which is not
a Business Day, such Interest Period shall end on the next following
Business Day (unless such next following Business Day is the first Business
Day of a calendar month, in which case such Interest Period shall end on
the Business Day next preceding such numerically corresponding day); and
(c) no Interest Period for any Loan may end later than the Stated
Maturity Date for such Loan.
"INVESTMENT" means, relative to any Person,
(a) any loan or advance made by such Person to any other Person
(including Affiliates) (EXCLUDING, HOWEVER, commission, travel, petty cash
and similar advances to officers and employees made in the ordinary course
of business);
(b) any Contingent Liability of such Person incurred in connection
with loans or advances described in CLAUSE (A);
(c) any ownership or similar interest held by such Person in any
other Person; and
(d) any other item that is or would be classified as an investment on
a balance sheet of such Person prepared in accordance with GAAP.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property at the time of such Investment. If Holdings or any Subsidiary
of Holdings sells, assigns, transfers or otherwise disposes of any Equity
Interests of any direct or indirect
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Subsidiary of Holdings such that, after giving effect thereto, such Person is no
longer a Subsidiary of Holdings, Holdings or such Subsidiary shall be deemed to
have made an Investment on the date of such sale, assignment, transfer or other
disposition equal to the fair market value of the Equity Interests of such
Subsidiary not sold, assigned, transferred or otherwise disposed of in an amount
determined as provided in CLAUSE (D) of SECTION 7.2.6 of the Credit Agreement.
"ISSUANCE FEE OR EXPENSE" means any fee or expense incurred by the Borrower
in connection with the raising of debt or equity to finance the Main Project
which is paid on or before the Closing Date as more fully set forth on SCHEDULE
IX to the Credit Agreement.
"ISSUER" means Scotiabank in its capacity as issuer of the Letters of
Credit. At the request of Scotiabank, another Lender or an Affiliate of
Scotiabank may issue one or more Letters of Credit under the Credit Agreement.
"KEEP-WELL AGREEMENT" means, on any date, the Keep-Well Agreement, as
originally in effect on the Closing Date, by the Sponsors and ABH in favor of
the Lenders substantially in the form of EXHIBIT D to the Credit Agreement and
as thereafter from time to time amended, supplemented, amended and restated or
otherwise modified.
"KNOWLEDGE" of any Obligor means, at any time and relative to any matter,
knowledge which the Authorized Representatives of such Obligor would have after
inquiring of the current employees of such Obligor and its Subsidiaries who
would reasonably be expected to have knowledge regarding such matter, whether or
not such Authorized Representatives actually made inquiry of such employees.
"LAND EQUITY" is defined in CLAUSE (A) of the FIFTH RECITAL of the Credit
Agreement.
"LCNI" means London Clubs Nevada Inc., a Nevada corporation.
"LCNI PLEDGE AGREEMENT" means, on any date, the Pledge Agreement executed
and delivered by an Authorized Representative of LCNI pursuant to CLAUSE (B) of
SECTION 5.1.3 of the Credit Agreement, as originally in effect on the Closing
Date, in substantially the form of EXHIBIT E-6 to the Credit Agreement and as
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thereafter from time to time amended, supplemented, amended and restated or
otherwise modified.
"LEGAL REQUIREMENT" means, relative to any Person or property, all laws
(including Nevada Gaming Laws, if applicable), statutes, codes, regulations,
rules, acts, ordinances, permits, licenses, authorizations, directions and
requirements of all Governmental Instrumentalities, departments, commissions,
boards, courts, authorities, agencies, officials and officers, and any deed
restrictions or other requirements of record, applicable to such Person or such
property, or any portion thereof or interest therein or any use or condition of
such property or any portion thereof or interest therein (including those
relating to zoning, planning, subdivision, building, safety, health, use,
environmental quality and other similar matters).
"LENDER" is defined in the PREAMBLE of the Credit Agreement and, in
addition, shall include any commercial bank or other financial institution that
becomes a Lender pursuant to SECTION 10.11.1 of the Credit Agreement.
"LENDER ASSIGNMENT AGREEMENT" means a lender assignment agreement
substantially in the form of EXHIBIT H to the Credit Agreement.
"LENDER DEFAULT" means (x) the refusal (which has not been retracted) of a
Lender to make available its portion of any Borrowing or to fund its portion of
any unreimbursed payment under SECTION 2.6.1 of the Credit Agreement or (y) a
Lender having notified the Administrative Agent or the Borrower that it does not
intend to comply with its obligations under SECTION 2.3 or under SECTION 2.6.1
of the Credit Agreement, in either case, as a result of the appointment of a
receiver or conservator with respect to such Lender at the direction or request
of any regulatory agency or authority.
"LENDER'S ENVIRONMENTAL LIABILITY" means any and all losses, liabilities,
obligations, penalties, claims, litigation, demands, defenses, costs, judgments,
suits, proceedings, damages (including consequential damages), disbursements or
expenses of any kind or nature whatsoever (including reasonable attorneys' fees
at trial and appellate levels and consultants' and experts' fees and
disbursements and expenses incurred in investigating, defending against or
prosecuting any litigation, claim or proceeding) which may at any time be
imposed upon, incurred by or asserted or awarded against any Lender or any of
such Lender's parent and subsidiary corpora-
A-48
tions, and their Affiliates, shareholders, directors, officers, employees, and
agents in connection with or arising from:
(a) any Hazardous Substances on, in, under or affecting all or any
portion of any property of the Borrower, any of the Borrower's Subsidiaries
or Aladdin Bazaar, the groundwater thereunder, or any surrounding areas
thereof to the extent caused by Releases from the Borrower, any of the
Borrower's Subsidiaries, any other Aladdin Party or Aladdin Bazaar or any
of their respective properties;
(b) any misrepresentation, inaccuracy or breach of any warranty,
contained or referred to in SECTION 6.12 of the Credit Agreement;
(c) any violation or claim of violation by the Borrower, any of the
Borrower's Subsidiaries, any other Aladdin Party or Aladdin Bazaar of any
Environmental Laws; or
(d) the imposition of any Lien for damages caused by or the recovery
of any costs for the cleanup, release or threatened release of Hazardous
Substances by the Borrower, any of the Borrower's Subsidiaries, any other
Aladdin Party or Aladdin Bazaar, or in connection with any property owned
or formerly owned by the Borrower, any of the Borrower's Subsidiaries, any
other Aladdin Party or Aladdin Bazaar, as the case may be.
"LENDER'S TAX" is defined in SECTION 4.6 of the Credit Agreement.
"LETTER OF CREDIT" is defined in SECTION 2.1.2 of the Credit Agreement.
"LETTER OF CREDIT COMMITMENT" means, (x) relative to an Issuer, such
Issuer's obligation to issue Letters of Credit pursuant to SECTION 2.1.2 of the
Credit Agreement and (y) relative to each Lender (other than the Issuer) that
has a Term A Loan Commitment, the obligation of such Lender to participate in
Letters of Credit pursuant to SECTION 2.6.1 of the Credit Agreement.
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"LETTER OF CREDIT COMMITMENT AMOUNT" means, on any date, a maximum amount
of $20,000,000, as such amount may be permanently reduced from time to time
pursuant to SECTION 2.2 of the Credit Agreement.
"LETTER OF CREDIT DISBURSEMENT" is defined in SECTION 2.6.2 of the Credit
Agreement.
"LETTER OF CREDIT DISBURSEMENT DATE" is defined in SECTION 2.6.2 of the
Credit Agreement.
"LETTER OF CREDIT ISSUANCE REQUEST" means a Letter of Credit request and
certificate duly executed by an Authorized Representative of the Borrower
substantially in the form of EXHIBIT L-2 to the Credit Agreement.
"LETTER OF CREDIT OUTSTANDINGS" means, on any date, an amount equal to the
sum of
(a) the then aggregate amount which is undrawn and available under
all issued and outstanding Letters of Credit,
PLUS
(b) the then aggregate amount of all unpaid and outstanding Letter of
Credit Reimbursement Obligations.
"LETTER OF CREDIT REIMBURSEMENT OBLIGATION" is defined in SECTION 2.6.3 of
the Credit Agreement.
"LETTER OF CREDIT STATED EXPIRY DATE" is defined in SECTION 2.6 of the
Credit Agreement.
"LIBO RATE" means, relative to any Interest Period for LIBO Rate Loans, the
rate of interest equal to the average (rounded upwards, if necessary, to the
nearest 1/16 of 1%) of the rate PER ANNUM at which Dollar deposits in
immediately available funds are offered to the Administrative Agent in the
London, England interbank market as at or about 11:00 a.m. London, England time
two Business Days prior to the beginning of such Interest
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Period for delivery on the first day of such Interest Period, and in an amount
approximately equal to the amount of the LIBO Rate Loans and for a period
approximately equal to such Interest Period.
"LIBO RATE LOAN" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
"LIBO RATE (RESERVE ADJUSTED)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/16 of
1%) determined pursuant to the following formula:
LIBO Rate LIBO Rate
= -------------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans
will be determined by the Administrative Agent on the basis of the LIBOR Reserve
Percentage in effect, and the applicable rates furnished to and received by the
Administrative Agent from the Lenders, two Business Days before the first day of
such Interest Period.
"LIBOR RESERVE PERCENTAGE" means, relative to any Interest Period for LIBO
Rate Loans, the reserve percentage (expressed as a decimal) equal to the maximum
aggregate reserve requirements (including all basic, emergency, supplemental,
marginal and other reserves and taking into account any transitional adjustments
or other scheduled changes in reserve requirements) specified under regulations
issued from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of or including "Eurocurrency Liabilities", as currently
defined in Regulation D of the F.R.S. Board, having a term approximately equal
or comparable to such Interest Period.
"LIEN" means, relative to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such asset, whether
or not filed, recorded or otherwise perfected under applicable law (including
any conditional sale or other title retention agreement, any lease in the nature
thereof, any option or other agreement to sell or give a security interest
therein).
A-51
"LINE ITEM" means each of the individual line items set forth in the Main
Project Budget.
"LINE ITEM CATEGORY" means each of the following line item categories of
the Main Project Budget:
(a) Construction Costs;
(b) Indirect Costs;
(c) Indirect Fees;
(d) General FF&E;
(e) Gaming Equipment;
(f) Owner FF&E;
(g) Theming;
(h) Project Contingency;
(i) Mall Project Reimbursement;
(j) Capitalized Interest;
(k) Fees/Other Expenses;
(l) Retirement of Existing Debt;
(m) Retirement of Partnership Debt;
(n) Pre-Opening Expenses;
(o) Working Capital;
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(p) Investment in Aladdin Music; and
(i) Land/Infrastructure Contract.
"LOAN" means a Term A Loan, a Term B Loan or a Term C Loan of any type.
"LOAN DOCUMENT" means, collectively, the Credit Agreement, the Notes, the
Letters of Credit, each Pledge Agreement, each Rate Protection Agreement, each
Borrowing Request, each Letter of Credit Issuance Request, the Security
Agreement, the Keep-Well Agreement, the Completion Guaranty, the GECC
Intercreditor Agreement, the Trademark Security Agreement, the Deed of Trust,
the Disbursement Agreement, the Mall Project Completion Assignment, the Fee
Letters, the Environmental Indemnity, the Assignment of Contracts, the Borrower
Collateral Account Agreement, the Holding Collateral Account Agreement, the
Servicing and Collateral Account Agreement, the Design/Builder Consent and
Acknowledgment and any other agreement, certificate, document or Instrument
delivered in connection with the Credit Agreement and such other agreements,
whether or not specifically mentioned herein or therein.
"LONDON CLUBS" means London Clubs International, plc, a company registered
in England and Wales.
"LONDON CLUBS CONTRIBUTION" means the $50,000,000 cash contribution by
London Clubs indirectly through London Clubs Holding and LCNI in consideration
for Common Membership Interests in Holdings.
"LONDON CLUBS HOLDINGS" means London Clubs Holdings, Ltd., a company
registered in England and Wales.
"LONDON CLUBS PARTIES" means, collectively, London Clubs and LCNI.
"LONDON CLUBS PURCHASE AGREEMENT" means the Amended and Restated Purchase
Agreement, dated the Effective Date, among London Clubs, LCNI, AHL, Sommer
Enterprises, the Trust, Holdings and the Borrower as originally in effect on the
Effective Date and as thereafter from time to time amended, supplemented,
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amended and restated or otherwise modified in accordance with the terms of the
Credit Agreement.
"LOSS PROCEEDS" is defined in SECTION 7.1.20 of the Credit Agreement.
"LOSS PROCEEDS ACCOUNT" is defined in the Borrower Collateral Account
Agreement.
"MAIN PROJECT" is defined in CLAUSE (A) of the FOURTH RECITAL of the Credit
Agreement.
"MAIN PROJECT BUDGET" means a budget in substantially the form of EXHIBIT
X-2 to the Credit Agreement (as amended from time to time in accordance with
SECTION 7.2.18 of the Credit Agreement) which shall include (w) a breakdown of
all Direct Costs and Indirect Costs by Line Item Categories, together with a
schedule of costs by trades and Main Project Costs (including Main Project Costs
incurred prior to, as well as after, the Effective Date, the Pre-Opening
Expenses, the Issuance Fees or Expenses, Debt Service and initial working
capital required to operate the Main Project on and after the Opening Date)
which (1) are to be paid from the Hotel/Casino Component Funding Sources and (2)
are to be constructed and paid for by the Borrower pursuant to the Site Work
Agreement for improvements to the Mall Project, (x) a schedule setting forth the
FF&E which is to be purchased from the proceeds of the Loans (which FF&E shall
not include any Gaming Equipment and/or Specified Equipment), (y) a drawdown
schedule for Advances necessary to achieve Final Completion and such other
information relative to such Main Project Costs and the funding thereof as the
Administrative Agent may reasonably require and (z) a balanced statement of
sources and uses of proceeds (and any other funds necessary to complete the Main
Project), broken down by Construction Component and Line Item. The Main Project
Costs shall not exceed $724,000,000.
"MAIN PROJECT BUDGET/SCHEDULE AMENDMENT CERTIFICATE" means a Main Project
Budget/Schedule Amendment Certificate substantially in the form of EXHIBIT X-3
to the Credit Agreement.
"MAIN PROJECT CERTIFICATE OF OCCUPANCY" means a permanent or temporary
certificate of occupancy, in either case, for the portion of the Main Project
specified in such certificate of occupancy issued by the Building Department
pursuant to applicable Legal Requirements which permanent or temporary
certificate of occupancy shall permit such portion of the Main Project to be
used for its intended
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purposes, shall be in full force and effect and, in the case of a temporary
certificate of occupancy, if such temporary certificate of occupancy shall
provide for an expiration date, any Main Project Punchlist Items which must be
completed in order for such temporary certificate of occupancy to be renewed or
extended shall be completed no later than 15 days prior to the applicable
expiration date.
"MAIN PROJECT COSTS" means all costs incurred or to be incurred in
accordance with the Main Project Budget in connection with the development,
design, engineering, procurement, installation, construction, Final Completion
and opening of the Main Project, including:
(a) all costs incurred under the Design/Build Contract and the
Contracts;
(b) interest accruing under the Credit Agreement, the other Loan
Documents and the Approved Equipment Funding Commitments prior to the
Conversion Date;
(c) reasonable financing and closing costs related to the Main
Project until the Conversion Date, including insurance costs (including,
with respect to directors and officers insurance, costs relating to such
insurance extending beyond the Conversion Date), guarantee fees, legal fees
and costs and expenses, financial advisory fees and expenses, technical
fees and expenses (including fees and expenses of the Construction
Consultant, the Environmental Consultant and the Insurance Consultant),
commitment fees, management fees, agency fees (including fees and expenses
of the Disbursement Agent and the Administrative Agent), interest, taxes
(including value-added tax and Restricted Payments made in accordance with
CLAUSE (C) of SECTION 7.2.6 of the Credit Agreement) and other
out-of-pocket expenses payable by the Borrower under all documents related
to the financing and construction of the Main Project until the Conversion
Date;
(d) the costs of acquiring Permits for the Main Project prior to the
Final Completion Date (including Permits required for the operation of the
Main Project subsequent to the Final Completion Date);
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(e) costs incurred in settling insurance claims in connection with
Events of Loss and collecting Loss Proceeds;
(f) amounts due under the Energy Project Service Agreement prior to
the Conversion Date; and
(g) without duplication, working capital costs.
"MAIN PROJECT DOCUMENT" means, collectively, the Design/Build Contract, the
Fluor Guaranty, the Contracts, the Energy Project Service Agreement, the Energy
Project Ground Lease, the Mall Project Ground Lease, the Music Project Ground
Lease, the Theater Lease (if entered into), the Reciprocal Easement Agreement,
the Common Parking Area Use Agreement, the Site Work Agreement, the Project
Management Agreement, the Development Agreement or any other document or
agreement entered into on, prior to or after the Effective Date, relating to the
development, construction, maintenance or operation of the Main Project (other
than the Loan Documents and the Discount Note Trust Indenture), as the same may
be amended from time to time in accordance with the terms and conditions of the
Credit Agreement and thereof.
"MAIN PROJECT EASEMENT" means any easement appurtenant, easement in gross,
license agreement or other right running for the benefit of the Borrower or
appurtenant to the Main Project Parcel, including those easements and licenses
described in the Reciprocal Easement Agreement and each Title Policy.
"MAIN PROJECT INTENDED USE" means each intended use of the Main Project, as
more particularly set forth on EXHIBIT O to the Credit Agreement.
"MAIN PROJECT PARCEL" means the portion of the Site described on
EXHIBIT N-3 to the Credit Agreement together with the Main Project Easements.
"MAIN PROJECT PUNCHLIST COMPLETION CERTIFICATE" means the Main Project
Punchlist Completion Certificate substantially in the form of EXHIBIT V to the
Credit Agreement.
"MAIN PROJECT PUNCHLIST ITEM" means any minor or insubstantial detail of
construction or mechanical adjustment, the non-completion of which, when all
such
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items are taken together, will not interfere in any material respect with the
use or occupancy of any portion of the Main Project for its intended purposes or
the ability of the owner of the Main Project or the Energy Project Provider, as
applicable, to perform work that is necessary or desirable to prepare such
portion of the Main Project for such use or occupancy; PROVIDED, HOWEVER, that,
in all events, "MAIN PROJECT PUNCHLIST ITEMS" shall include the items set forth
in the punchlist to be delivered by the Borrower in connection with Substantial
Completion (as defined in the Design/Build Contract) and all items that are
listed on the "punchlists" furnished by the Building Department, the Nevada
Department of Transportation or the Clark County Department of Public Works in
connection with, or after, the issuance of a temporary Main Project Certificate
of Occupancy for the portion of the Main Project covered thereby as those that
must be completed in order for the Building Department to issue a permanent Main
Project Certificate of Occupancy.
"MAIN PROJECT SECURITY" means all real and personal property which is
subject or is intended to become subject to the security interests or liens
granted by any of the Operative Documents.
"MAJOR CONTRACTOR" means a Contractor who is party to a Material Main
Project Document.
"MALL PROJECT" is defined in CLAUSE (B) of the FOURTH RECITAL of the Credit
Agreement.
"MALL PROJECT COMPLETION ASSIGNMENT" means, on any date, the Mall Project
Completion Assignment, as originally in effect on the Closing Date, from
Holdings in favor of the Lenders substantially in the form of EXHIBIT G to the
Credit Agreement and as thereafter from time to time amended, supplemented,
amended and restated or otherwise modified.
"MALL PROJECT EASEMENT" means any easement appurtenant, easement in gross,
license agreement or other right running for the benefit of Aladdin Bazaar or
appurtenant to the Mall Project Parcel, including those certain easements and
licenses described in the Reciprocal Easement Agreement and each Title Policy.
"MALL PROJECT GROUND LEASE" means, on any date, the Lease, as originally in
effect on the Effective Date, between the Borrower and Aladdin Bazaar and as
thereafter from time to time amended, supplemented, amended and restated or
otherwise modified in accordance with the terms of the Credit Agreement.
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"MALL PROJECT PARCEL" means the portion of the Site described on
EXHIBIT N-4 to the Credit Agreement, together with the Mall Project Easements.
"MALL PROJECT PARCEL CREATION DATE" means the date on which the Mall
Project Parcel is created in accordance with CLAUSE (B) of SECTION 7.1.19 of the
Credit Agreement.
"MANDATORY PREPAYMENT" is defined in CLAUSE (C) of SECTION 3.1.1 of the
Credit Agreement.
"MATERIAL ADVERSE EFFECT" means (x) a material adverse effect on the
financial condition, business, property, prospects of the Borrower or on its
ability to perform in all material respects its obligations under any Operative
Document to which it is a party, (y) a material adverse effect on the financial
condition, business, property, prospects and ability of any other Project Party
to perform in all material respects its obligations under any Operative Document
to which it is a party or (z) a material impairment of the validity or
enforceability of, or a material impairment of the rights, remedies or benefits
available to the Administrative Agent, the Issuer or the Lenders under the
Credit Agreement or any other Operative Document; PROVIDED, HOWEVER, that
whenever the term "Material Adverse Effect" is used in a representation or
warranty made by the Borrower, such representation or warranty as it relates to
CLAUSE (Y) above shall be deemed to have been made to the Borrower's Knowledge.
"MATERIAL MAIN PROJECT DOCUMENT" means the Mall Project Ground Lease, the
Music Project Ground Lease, the Reciprocal Easement Agreement, the Site Work
Agreement, the Common Parking Area Use Agreement, the Energy Project Ground
Lease, the Energy Project Service Agreement, the Theater Lease, the Design/Build
Contract, the Fluor Guaranty, the Project Management Agreement, the Development
Agreement any other material agreement, certificate, document or Instrument
delivered in connection with or by the Borrower and any other Person to any
Material Main Project document and such other agreements, whether or not
specifically mentioned herein or therein and, without duplication, any Main
Project Document with a total contract amount in excess of $2,500,000.
"MEMBERSHIP INTEREST" means, relative to any Person which is a limited
liability company, a membership interest or a limited liability company
interest, as the case may be, of such Person.
"MERRILL LYNCH" is defined in the PREAMBLE of the Credit Agreement.
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"MINIMUM FIXED CHARGE COVERAGE RATIO" means, as of the close of any Fiscal
Quarter, commencing with the close of the Fiscal Quarter in which the Conversion
Date occurs, the ratio computed for the period consisting of such Fiscal
Quarter (or such shorter period of any Fiscal Quarter after the occurrence
therein of the Conversion Date and each of the three immediately prior Fiscal
Quarters (or such lesser number of Fiscal Quarters to have closed since the
Conversion Date) of:
(a) EBITDA (for all such Fiscal Quarters or such shorter period, as
the case may be and determined for any period ending on or prior to the
first anniversary of the Conversion Date, consistently with the proviso to
the definition of "EBITDA");
TO
(b) the sum (for all such Fiscal Quarters or such shorter period, as
the case may be) of
(i) Interest Expense;
PLUS
(ii) scheduled principal repayments of the Loans pursuant to
CLAUSES (B) and (C) of SECTION 3.1.1 of the Credit Agreement after
giving effect to any reductions in such scheduled principal repayments
attributable to any optional or mandatory prepayments of the Loans and
scheduled payments made with respect to the FF&E Financing;
PLUS
(iii) the amount of all federal, state and local income taxes
(whether paid in cash or deferred) of the Borrower paid by the
Borrower or, if the Borrower is treated as a pass-through entity or is
not treated as a separate entity for United States federal income tax
purposes, the amount of Restricted Payments made by the Borrower in
accordance with CLAUSE (C) of SECTION 7.2.6 of the Credit Agreement,
subject to the terms thereof, in each case, in cash during such Fiscal
Quarters;
PLUS
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(iv) Restricted Payments of the types described in CLAUSE (D) of
SECTION 7.2.6 of the Credit Agreement made in cash during such Fiscal
Quarters;
PLUS
(v) Capital Expenditures of the Borrower actually made or
reserved during all such Fiscal Quarters pursuant to SECTION 7.2.7 of
the Credit Agreement;
PROVIDED, HOWEVER, that in computing the Minimum Fixed Charge Coverage Ratio for
any such period ending on or prior to the first anniversary of the Conversion
Date, the amount determined pursuant to CLAUSE (B) shall equal the product of
(x) the sum of the amounts determined pursuant to CLAUSE (B) for such period
MULTIPLIED BY (y) a fraction, the numerator of which is equal to 365 and the
denominator of which is equal to the number of days that have elapsed in such
period.
"MOODY'S" means Moody's Investors Service, Inc., a Delaware corporation, or
any successor thereto.
"MUSIC INVESTMENT PREPAYMENT" is defined in CLAUSE (D) of SECTION 3.1.1 of
the Credit Agreement.
"MUSIC PROJECT" is defined in CLAUSE (C) of the FOURTH RECITAL of the
Credit Agreement.
"MUSIC PROJECT EASEMENT" means any easement appurtenant, easement in gross,
license agreement or other right running for the benefit of Aladdin Music or
appurtenant to the Music Project Parcel, including those certain easements and
licenses described in the Reciprocal Easement Agreement and each Title Policy.
"MUSIC PROJECT GROUND LEASE" means, on any date, the Lease, as originally
in effect on the Effective Date, between the Borrower and Aladdin Music and as
thereafter from time to time amended, supplemented, amended and restated or
otherwise modified in accordance with the terms of the Credit Agreement.
"MUSIC PROJECT PARCEL" means the portion of the Site described on
EXHIBIT N-5 to the Credit Agreement, together with the Music Project Easements.
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"MUSIC PROJECT PARCEL CREATION DATE" means the date on which the Music
Project Parcel is created in accordance with CLAUSE (C) of SECTION 7.1.19 of the
Credit Agreement.
"NET DISTRIBUTION AMOUNT" means, for any period, the amount of fees paid to
AMH under any keep-well agreement relating to the Music Project and then paid as
distributions in cash to the Borrower by AMH to the extent permitted thereunder.
"NET INCOME" means, for any period, the aggregate of all amounts (including
extraordinary losses) which, in accordance with GAAP, would be included in
determining net income on the financial statements of the Borrower for such
period (EXCLUDING, HOWEVER, (x) all amounts in respect of any extraordinary
gains and any non-cash income and (y) net income of any Subsidiary, other than
any Net Distribution Amount paid in cash to the Borrower during such period).
"NET WORTH" means the net worth of the Borrower determined in accordance
with GAAP.
"NEVADA GAMING AUTHORITY" means the Nevada Gaming Commission, the Nevada
State Gaming Control Board or the Clark County Liquor and Gaming Licensing
Board.
"NEVADA GAMING LAW" means the Nevada Gaming Control Act, as codified in
Chapter 463 of the NRS, as amended from time to time, and the regulations of the
Nevada Gaming Commission promulgated thereunder, as amended from time to time,
and Clark County Code Sections 8.04.010 to 8.04.310 and 8.20.010 to 8.20.580, as
amended from time to time.
"NON-DEFAULTING LENDER" means and includes each Lender other than a
"Defaulting Lender".
"NOTE" means a Term A Note, a Term B Note, a Term C Note or a Registered
Note.
"NOTE CONSTRUCTION DISBURSEMENT ACCOUNT" is defined in the Holdings
Collateral Account Agreement.
"NOTEHOLDER COMPLETION GUARANTY" means, on any date, the Noteholder
Completion Guaranty, as originally in effect on the Effective Date, by the
Comple-
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tion Guarantors in favor of the Discount Note Indenture Trustee (for the benefit
of the Discount Noteholders) as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified in accordance with the
terms of the Credit Agreement.
"NRS" means Nevada Revised Statutes.
"OBLIGATIONS" means (x) all loans, advances, debts, liabilities and
obligations, howsoever arising, owed by the Borrower under the Credit Agreement
to any Lender of every kind and description (whether or not evidenced by any
note or instrument and whether or not for the payment of money), direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, pursuant to the terms of the Disbursement Agreement, any of
the Loan Documents or any of the other Operative Documents, including all
interest, fees, charges, expenses, attorneys' fees, consultants' fees and
accountants' fees chargeable to the Borrower in connection with such Person's
dealings with the Borrower and payable by the Borrower under the Credit
Agreement or thereunder; (y) any and all sums advanced by the Lenders in order
to preserve the Main Project Security or preserve any Secured Parties' security
interest in the Main Project Security, including all protective advances; and
(z) in the event of any proceeding for the collection or enforcement of, or any
"working out" of, the Obligations after an Event of Default shall have occurred
and be continuing, the reasonable expenses of retaking, holding, preparing for
sale or lease, selling or otherwise disposing of or realizing on the Main
Project Security, or of any exercise by any Secured Party of its rights under
the Operative Documents, together with reasonable attorneys' fees and court
costs.
"OBLIGOR" means, as the context may require, the Borrower, each other
Aladdin Party, LCNI, London Clubs Holdings, London Clubs, each Sponsor, each
Completion Guarantor and each other Person (other than the Agents, the Issuer or
any Lender) to the extent such Person is obligated under the Credit Agreement or
any other Operative Document.
"ONGOING INVESTMENT" is any Investment listed in ITEM 7.2.5(A) on the
Disclosure Schedule.
"ON SCHEDULE CERTIFICATE" means a certificate in the form of EXHIBIT AA to
the Credit Agreement.
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"OPENING CONDITION" means, collectively, the following:
(a) Substantial Completion shall have occurred;
(b) the Hotel/Casino shall have received a Main Project Certificate
of Occupancy from the Building Department (and a copy of such certificate
shall have been delivered to the Administrative Agent);
(c) each remaining Main Project Punchlist Item with respect to the
Hotel/Casino and the completion thereof shall be such that it will not
interfere with or disrupt the operation of the Main Project for its
intended purposes or detract from the aesthetic appearance of the Main
Project other than to a DE MINIMIS extent, as reasonably determined by the
Owner Representative and confirmed by the Construction Consultant;
(d) the failure to complete each remaining Main Project Punchlist
Item would not interfere with or disrupt the operation of the Main Project
for its intended purposes or detract from the aesthetic appearance of the
Main Project other than to a DE MINIMIS extent, as reasonably determined by
the Owner Representative and confirmed by the Construction Consultant; and
(e) the Borrower shall have available a fully trained staff to
operate the Hotel/Casino in accordance with first-class industry standards
for a hotel/casino operation of similar size and location.
"OPENING DATE" means the date on which all of the Opening Conditions are
satisfied.
"OPERATING" means the first time that (t) all Gaming Licenses have been
granted and are not then revoked or suspended, (u) all Liens (other than
Permitted Liens) related to the development, construction, and equipping of the
Main Project have been paid or, if payment is not yet due or if such payment is
contested in good faith by Borrower, either (1) sufficient funds remain in the
Construction Note Disbursement Account to discharge such Liens or (2) such Liens
have been bonded, (v) the Construction Consultant, the Design/Builder and the
Architect of Record shall have delivered one or more certificates to the
Administrative Agent each certifying that the Main Project is Complete in all
material respects in accordance with the Plans and Specifications and all
applicable Legal Requirements, (w) the Main Project is in a condition (including
installation of FF&E) to receive invitees in the ordinary
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course of business, (x) gaming and other operations in accordance with
applicable Legal Requirements are open to the general public and are being
conducted at the Hotel/Casino, (y) a Main Project Certificate of Occupancy has
been issued for the Main Project by the Building Department and (z) a notice of
completion of the Main Project has been duly recorded.
"OPERATING COSTS" means all actual cash costs incurred by the Borrower and
related to the operation of the Main Project or any portion thereof in the
ordinary course of business, including costs incurred for labor, consumables,
utility services and all other operation-related costs; PROVIDED, HOWEVER, that
(x) Operating Costs shall not include non-cash charges (including depreciation
and amortization) and (y) Debt Service shall constitute Operating Costs from and
after the Conversion Date but not prior to such date.
"OPERATIVE DOCUMENT" means any Loan Document or Main Project Document.
"ORGANIZATIONAL DOCUMENT" means, relative to any Obligor, as applicable,
its certificate or articles of incorporation, by-laws, certificate of
partnership, partnership agreement, certificate of formation, articles of
organization, operating agreement, limited liability company or operating
agreement and all shareholder agreements, voting trusts and similar arrangements
applicable to any of such Obligor's partnership interests, limited liability
company interests or authorized shares of capital stock.
"OUTSIDE COMPLETION DEADLINE" means the date which is 28 months following
the Effective Date, time being of the essence; PROVIDED, HOWEVER, if a Force
Majeure Event occurs, then the Borrower shall be permitted to extend the
Completion Date for up to one year subject to the satisfaction by the Borrower
of the conditions to such extension as set forth in the definition of "Force
Majeure Event".
"OWNER REPRESENTATIVE" means Tishman Construction Corporation of Nevada.
"PARTICIPANT" is defined in SECTION 10.11.2 of the Credit Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
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"PENSION PLAN" means a "pension plan", as such term is defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (EXCLUDING,
HOWEVER, a multiemployer plan as defined in Section 4001(a)(3) of ERISA), and to
which the Borrower or any corporation, trade or business that is, along with the
Borrower, a member of a Controlled Group, may have liability, including any
liability by reason of having been a substantial employer within the meaning of
Section 4063 of ERISA at any time during the preceding five years, or by reason
of being deemed to be a contributing sponsor under Section 4069 of ERISA.
"PERCENTAGE" means, relative to any Lender, the applicable percentage
relating to Term A Loans, Term B Loans or Term C Loans, as the case may be, as
set forth opposite its signature to the Credit Agreement under the applicable
column heading or as set forth in a Lender Assignment Agreement under the
applicable column heading, 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 of the Credit
Agreement. A Lender shall not have any Commitment to make Term A Loans, Term B
Loans or Term C Loans, as the case may be, if its percentage under the
applicable column heading is zero percent (0%).
"PERMIT" means any material building, construction, land use, environmental
or other permit, license, franchise, approval, consent and authorization
(including central bank and planning board approvals from applicable
Governmental Instrumentalities and approvals required under the Nevada Gaming
Law) required for or in connection with the construction, ownership, use,
occupation and operation of the Main Project and the transactions provided for
in the Credit Agreement and the other Operative Documents.
"PERMITTED ENCUMBRANCE" means any encumbrance against all or a portion of
the Site as set forth in EXHIBIT BB to the Credit Agreement.
"PERMITTED EXCEPTION" means any exception to title to all or a portion of
the Site as set forth in EXHIBIT CC to the Credit Agreement.
"PERMITTED LIEN" means any of the following types of Liens (EXCLUDING,
HOWEVER, any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or by ERISA, any such Lien relating to or imposed in
connection with any Environmental Claim and any such Lien expressly prohibited
by
A-65
any applicable terms of any of the Operative Documents or the Discount Note
Indenture):
(a) Liens in favor of the Borrower;
(b) Liens to secure the performance of statutory obligations, surety
or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business or in the construction of the
Main Project; PROVIDED, HOWEVER, that the Borrower has obtained a title
insurance endorsement insuring against losses arising therewith or, if such
Lien arises after completion of the Main Project, the Borrower has bonded
such Lien within a reasonable time after becoming aware of the existence of
such Lien;
(c) Liens securing the Obligations under the Operative Documents;
(d) Liens existing on the Effective Date and set forth in ITEM 7.2.3
of the DISCLOSURE SCHEDULE;
(e) (x) Liens for Impositions or (y) statutory Liens of landlords,
and carriers', warehousemen's, mechanics', suppliers', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of
business or in the construction of the Main Project, in the case of each of
ITEMS (X) and (Y), with respect to amounts that either (1) are not yet
delinquent or (2) are being diligently contested in good faith by
appropriate proceedings, PROVIDED, however, that, in each case, any reserve
or other appropriate provision as shall be required in conformity with GAAP
shall have been made therefor;
(f) easements, rights-of-way, avigational servitude, restrictions,
minor defects or irregularities in title and other similar charges or
encumbrances which do not interfere in any material respect with the
ordinary conduct of business of the Borrower;
(g) Liens created by the Reciprocal Easement Agreement;
(h) Liens created by the Disbursement Agreement;
(i) licenses of patents, trademarks and other intellectual property
rights granted by the Borrower in the ordinary course of business;
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(j) any judgment attachment or judgment Lien not constituting an
Event of Default;
(k) subject to the terms of the GECC Intercreditor Agreement, Liens
to secure all obligations under the FF&E Financing; PROVIDED, HOWEVER, that
(x) the principal amount of such Indebtedness does not exceed the cost
(including sales and excise taxes, installation and delivery charges and
other direct costs of, and other direct expenses paid or charged in
connection with, such purchase) of the FF&E purchased or leased with the
proceeds thereof and (y) the aggregate principal amount of such
Indebtedness including any Permitted Refinancing Indebtedness incurred to
refinance or replace any Indebtedness secured by such Lien does not exceed
$80,000,000 (including obligations characterized as operating leases or
other off-balance sheet financing arrangements) outstanding at any time;
(l) Liens securing obligations arising under the Contribution
Agreement and between the parties thereto so long as such Liens cannot be
enforced by the holder thereof until all Obligations have been paid in cash
in full, all Letters of Credit have been terminated or expired and all
Commitments have terminated PROVIDED, HOWEVER, that to the extent any
distributions on any relevant Capital Stock or Membership Interests, as the
case may be, are permitted to be made to the shareholders or members, as
the case may be, in respect thereof under the Loan Documents, such holder
shall be permitted to enforce such Liens (including by causing the
redirection of any such distribution to such holder);
(m) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and return-of-money
bonds and other similar obligations (EXCLUDING, HOWEVER, obligations for
the payment of borrowed money), incurred in the ordinary course of business
so long as no foreclosure, sale or similar proceedings have been commenced
with respect to any portion of the Main Project Security on account
thereof, (x) for amounts not yet overdue or (y) for amounts that are
overdue and that (in the case of any such amounts overdue for a period in
excess of 5 days) are being contested in good faith by appropriate
proceedings, so long as (1) such reserves or other appropriate provisions,
if any, as shall be required by generally
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accepted accounting principles shall have been made for any such contested
amounts, and (2) in the case of a Lien with respect to any portion of the
Main Project Security, such contest proceedings conclusively operate to
stay the sale of any portion of the Main Project Security on account of
such Lien;
(n) Liens for taxes, assessments or governmental charges or claims
the payment of which is not, at the time due and payable or which is being
contested in good faith by appropriate governmental proceedings promptly
instituted and diligently contested, so long as (x) such reserve or other
appropriate provision, if any, as shall be required in conformity with
generally accepted accounting principles shall have been made therefor
through an allocation in the Trade Detail Report and (y) in case of any
charge or claim which has or may become a Lien against any of the Main
Project Security, such contest proceedings conclusively operate to stay the
sale of any portion of the Main Project Security to satisfy such charge or
claim;
(o) Liens created by the Common Parking Area Use Agreement; and
(p) Liens created pursuant to Permitted Refinancing Indebtedness
which is incurred to refinance Indebtedness which has been secured by a
Lien and is permitted under SECTION 7.2.2 of the Credit Agreement and which
has been incurred in accordance with such Section; PROVIDED, HOWEVER, that
such Liens do not extend to cover any property or assets of the Borrower
not already securing the Indebtedness so refinanced.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the Borrower
issued in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund other Indebtedness of the Borrower;
PROVIDED, HOWEVER, that (u) the principal amount of such Permitted Refinancing
Indebtedness does not exceed the principal amount plus accrued interest on the
Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded
(PLUS the amount of reasonable expenses incurred in connection therewith),
(v) such Permitted Refinancing Indebtedness has a final maturity date later than
the final maturity date of, and has a Weighted Average Life to Maturity equal to
or greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded, (w) such
Indebtedness is incurred by the Borrower as the Obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded, (x) the
security, if any, for the Permitted Refinancing Indebtedness shall be the same
as that for the Indebtedness
A-68
being refinanced (except to the extent that less security is granted to holders
of such refinancing Indebtedness), (y) the holders of the Permitted Refinancing
Indebtedness are not afforded covenants, defaults, rights or remedies more
burdensome to the obligor or obligors than those contained in the Indebtedness
being refinanced and (z) the Permitted Refinancing Indebtedness is subordinated
to the same degree, if any, as the Indebtedness being refinanced.
"PERSON" means any natural person, corporation, limited liability company,
partnership, joint venture, joint stock company, firm, association, trust or
unincorporated organization, government, governmental agency, Governmental
Instrumentality, court or any other legal entity, whether acting in an
individual, fiduciary or other capacity.
"PLAN" means any Pension Plan or Welfare Plan.
"PLANET HOLLYWOOD" means Planet Hollywood International, Inc.
"PLANS AND SPECIFICATIONS" means all plans, specifications, design
documents, schematic drawings and related items for the design, architecture and
construction of the Main Project that are listed on SCHEDULE VII to the Credit
Agreement, as the same may be (x) finalized in a manner that reflects a natural
evolution of their status on the date of the Credit Agreement and in a manner
consistent with the standards set forth in SECTION 7.2.17 of the Credit
Agreement and (y) amended in accordance with SECTION 7.2.17 of the Credit
Agreement.
"PLEDGE AGREEMENT" means, as the context may require, the Holdings Pledge
Agreement, the LCNI Pledge Agreement, the Sommer Enterprises Pledge Agreement,
the AHL Pledge Agreement, the Enterprises Pledge Agreement, the Borrower Pledge
Agreement or the AMH Pledge Agreement.
"PLEDGED ENTITY" means, at any time, each Person in respect of which the
Lenders have been granted, at such time, a security interest in and to, or a
pledge of, any of the issued and outstanding interests or shares of Capital
Stock of such Person.
"PREFERRED STOCK" means any Equity Interest with preferential right of
payment of dividends or distributions, as applicable, or upon liquidation,
dissolution or winding up.
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"PRE-OPENING EXPENSE" means any expense of the type listed in SCHEDULE VIII
to the Credit Agreement.
"PRE-OPENING REVENUES" means all operating revenues received by the
Borrower with respect to the Main Project prior to the Opening Date.
"PROCESS AGENT" is defined in SECTION 10.14 of the Credit Agreement.
"PROJECT MANAGEMENT AGREEMENT" means, on any date, the Project Management
Agreement, as originally in effect on the Effective Date, between AHL and the
Owner Representative and as thereafter from time to time amended, supplemented,
amended and restated or otherwise modified in accordance with the terms of the
Credit Agreement.
"PROJECT PARTY" means the Borrower, AHL, Sommer Enterprises, Capital,
Holdings, London Clubs, LCNI, the Design/Builder or Fluor.
"QUARTERLY PAYMENT DATE" means the last Business Day of each March, June,
September and December.
"RATE PROTECTION AGREEMENT" means any interest rate swap, cap, collar or
similar agreement entered into by the Borrower in respect of the Loans pursuant
to the terms of the Credit Agreement under which the counterparty to such
agreement is (or, at the time such Rate Protection Agreement was entered into,
was) a Lender or an Affiliate of a Lender reasonably acceptable to the
Administrative Agent.
"REAL PROPERTY" means, relative to any Person, such Person's present and
future right, title and interest (including any leasehold estate) in
(a) any plots, pieces or parcels of land;
(b) any improvements, buildings, structures and fixtures now or
hereafter located or erected thereon or attached thereto of every nature
whatsoever;
(c) any other interests in property constituting appurtenances to the
Site, or which hereafter shall in any way belong, relate or be appurtenant
thereto; and
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(d) all other rights and privileges thereunto belonging or
appertaining and all extensions, additions, improvements, betterments,
renewals, substitutions and replacements to or of any of the rights and
interests described in CLAUSE (C).
"REALIZED SAVINGS" means:
(a) the portion of any decrease to the Guaranteed Maximum Price
retained or to be retained by the Borrower in accordance with the
provisions of Attachment H to the Design/Build Contract in the "COST OF THE
WORK" (as defined in Section 3 of attachment G to the Design/Build
Contract) contemplated by a Line Item but only to the extent that the
Guaranteed Maximum Price has been reduced as a result of such decrease in
the anticipated "COST OF THE WORK" as approved in writing by the
Design/Builder and such reduction is confirmed by the Construction
Consultant;
(b) with respect to the Construction Period Interest Line Item, a
decrease in the anticipated cost of construction period interest resulting
from (x) a decrease in the interest rates payable by the Borrower prior to
the date which is six months after the Conversion Date as determined by the
Administrative Agent with the reasonable concurrence of the Borrower taking
into account the current and future anticipated interest rates and the
anticipated times and amounts of draws under the Bank Credit Facility for
the payment of Main Project Costs or (y) the anticipated Conversion Date
being earlier than the date set therefor in the Construction Benchmark
Schedule as determined by the Owner Representative with the reasonable
concurrence of the Construction Consultant; and
(c) with respect to any other Line Item, the amount by which the
total cost allocated to such Line Item exceeds the total cost incurred by
the Borrower to complete all aspects of the Work contemplated by such Line
Item which amount shall not be established until the Borrower has actually
completed 90% of all such Work;
in each case, which is documented by the Borrower in a Realized Savings
Certificate substantially in the form of EXHIBIT W to the Credit Agreement, duly
executed and completed with all exhibits and attachments thereto.
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"RECIPROCAL EASEMENT AGREEMENT" means, on any date, the Construction,
Operation and Reciprocal Easement Agreement, as originally in effect on the
Effective Date, by and among the Borrower, Aladdin Bazaar and AMH and as
thereafter from time to time amended, supplemented, amended and restated or
otherwise modified in accordance with the terms of the Credit Agreement.
"REGISTER" is defined in CLAUSE (B) of SECTION 2.8 of the Credit Agreement.
"REGISTERED NOTE" is defined in SECTION 2.8 of the Credit Agreement, in the
form of EXHIBIT A-4 to the Credit Agreement (as such promissory note may be
amended, endorsed or otherwise modified from time to time).
"RELEASE" means a "RELEASE", as such term is defined in CERCLA.
"REMAINING COSTS" means, without duplication, the sum of (w) the costs
required to achieve Final Completion PLUS (x) the Retainage Amounts to be paid
to Persons who have supplied labor or materials in connection with such line
item, PLUS (y) the amount required to pay fees and interest at the maximum rate
of interest set forth in the Loan Documents (after giving effect to the Rate
Protection Agreement) through the date which is six months after the Conversion
Date PLUS (z) the Required Minimum Contingency.
"REQUIRED LENDERS" means, at any time,
(a) Non-Defaulting Lenders holding at least 66 2/3% of the sum of the
aggregate outstanding principal amount of the Loans then held by such
Lenders PLUS the participation interests of such Lenders in the Letter of
Credit Outstandings, or
(b) if no Loans or Letter of Credit are then outstanding, Lenders
having at least 66 2/3% of the Commitments;
PROVIDED, HOWEVER, that (x) amendments affecting only one class of Lenders (with
a class for each of the Term A Lenders, the Term B Lenders and the Term C
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 and (y) the consent of all of the
Non-Defaulting Lenders in the same class and of all Non-Defaulting Lenders in
all classes shall be required with respect to the matters set forth in SECTION
10.1 of the Credit Agreement.
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"REQUIRED MINIMUM CONTINGENCY" means (w) during the first month after the
Effective Date, no less than $24,000,000, (x) during the second month after the
Effective Date, no less than $23,000,000, (y) during the third month after the
Effective Date, no less than $22,000,000 and (z) thereafter the product of (1)
$25,000,000 REDUCED BY (2) the $25,000,000 multiplied by the percentage
completed in respect of such Line Item Category on the date that the Advance is
made.
"REQUIRED SCOPE CHANGE APPROVAL" means, relative to each proposed Scope
Change, the consent of the Administrative Agent.
"RESTRICTED PAYMENT" is defined in CLAUSE (B) of SECTION 7.2.6 of the
Credit Agreement.
"RETAINAGE AMOUNT" means, at any given time, amounts which have accrued and
are owing under the terms of the Design/Build Contract, a Contract or a
Subcontract, as the case may be, for work or services already provided but which
at such time (and in accordance with the terms of the Design/Build Contract, the
Contract or Subcontract, as the case may be) are being withheld from payment to
the Design/Builder, a Contractor or a Subcontractor, as the case may be, until
certain subsequent events (E.G., completion benchmarks) have been achieved under
the Design/Build Contract or relevant Contract or Subcontract.
"REVIEWING ACCOUNTANT" means Arthur Andersen LLP or any nationally
recognized firm of independent public accountants subsequently selected by the
Borrower with the consent of the Administrative Agent from time to time (which
shall not be unreasonably withheld or delayed), as auditors of the Borrower.
"S&P" means Standard & Poor's Ratings Group, Inc., a New York corporation,
or any successor thereto.
"SALLE PRIVEE MANAGEMENT AGREEMENT" means, on any date, the Management
Agreement, as originally in effect on the Effective Date, between the Borrower,
LCNI and London Clubs and as thereafter from time to time amended, supplemented,
amended and restated or otherwise modified in accordance with the terms of the
Credit Agreement.
"SCHEDULED AMORTIZATION" is defined in CLAUSE (B) of SECTION 3.1.1 of the
Credit Agreement.
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"SCOPE CHANGE" means any change in the "Services" or "Work".
"SCOTIABANK" is defined in the PREAMBLE of the Credit Agreement.
"SCOTIABANK FEE LETTER" means the confidential letter agreement, dated
December 4, 1997, among the Borrower, the Sponsors and Scotiabank.
"SEC" means the Securities and Exchange Commission.
"SECURED PARTY" means the Lenders, the Issuer, the Agents, each
counterparty to a Rate Protection Agreement that is (or at the time such Rate
Protection Agreement was entered into, was) a Lender or an Affiliate thereof
reasonably acceptable to the Administrative Agent and, in each case, each of
their respective successors, transferees and assigns.
"SECURITY AGREEMENT" means, on any date, the Security Agreement executed
and delivered by an Authorized Representative of the Borrower pursuant to
SECTION 5.1.5 of the Credit Agreement, as originally in effect on the Closing
Date, in substantially the form of EXHIBIT F to the Credit Agreement and as
thereafter from time to time amended, supplemented, amended and restated or
otherwise modified.
"SERVICES" is defined in SECTION 1.7 of the Design/Build Contract.
"SERVICING AND COLLATERAL ACCOUNT AGREEMENT" means, on any date, the
Servicing and Collateral Account Agreement, as originally in effect on the
Closing Date, among the Disbursement Agent, the Borrower and the Servicing Agent
and as thereafter from time to time amended, supplemented, amended and restated
or otherwise modified in accordance with the terms of the Credit Agreement.
"SHOULDER SPACE" means the property and space described in EXHIBIT N-6 to
the Credit Agreement.
"SITE" is defined in the FOURTH RECITAL of the Credit Agreement and is more
fully described in EXHIBIT N-1 to the Credit Agreement.
"SITE EASEMENT" means any easement appurtenant, easement in gross, license
agreement and other right running for the benefit of the Borrower, the Main
Project, the Mall Project and the owner of the Mall Project, the Music Project
and the owner of the Music Project, the Energy Project and the lessee of the
Energy Project or
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appurtenant to the Site, including those certain easements and licenses
described in the Title Policy.
"SITE WORK AGREEMENT" means, on any date, the Site Work Development and
Construction Agreement, as originally in effect on the Effective Date, among the
Borrower, AHL and Aladdin Bazaar and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified in accordance with the
terms of the Credit Agreement.
"SOLVENCY CERTIFICATE" means a solvency certificate to be executed and
delivered by the chief financial or accounting Authorized Representative of the
Borrower substantially in the form of EXHIBIT P to the Credit Agreement.
"SOLVENT" means, relative to any Person and its Subsidiaries on a
particular date, that on such date (w) the fair value of the property of such
Person and its Subsidiaries on a consolidated basis is greater than the total
amount of liabilities, including contingent liabilities, of such Person and its
Subsidiaries on a consolidated basis, (x) the present fair salable value of the
assets of such Person and its Subsidiaries on a consolidated basis is not less
than the amount that will be required to pay the probable liability of such
Person and its Subsidiaries on a consolidated basis on its debts as they become
absolute and matured, (y) such Person does not intend to, and does not believe
that it or its Subsidiaries will, incur debts or liabilities beyond the ability
of such Person and its Subsidiaries to pay as such debts and liabilities mature
and (z) such Person and its Subsidiaries on a consolidated basis are not engaged
in a business or transaction, and such Person and its Subsidiaries on a
consolidated basis are not about to engage in business or a transaction, for
which the property of such Person and its Subsidiaries on a consolidated basis
would constitute an unreasonably small capital.
"SOMMER ENTERPRISES" means Sommer Enterprises, LLC, a Nevada
limited-liability company.
"SOMMER ENTERPRISES PLEDGE AGREEMENT" means, on any date, the Pledge
Agreement executed and delivered by an Authorized Representative of Sommer
Enterprises pursuant to CLAUSE (C) of SECTION 5.1.3 of the Credit Agreement, as
originally in effect on the Closing Date, in substantially the form of
EXHIBIT E-7 to the Credit Agreement and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified.
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"SPECIFIED EQUIPMENT" means the portion of the new FF&E together with all
improvements and/or additions thereto covered by an FF&E Lease and financed by a
portion of the FF&E Financing.
"SPONSOR" means AHL or London Clubs.
"STATED AMOUNT" of each Letter of Credit means the total amount available
to be drawn under such Letter of Credit upon the issuance thereof.
"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 8.5 years
after the Closing Date; and
(c) with respect to all Term C Loans, the tenth anniversary of the
Closing Date.
"SUBCONTRACT" means a contract between the Design/Builder and a
Subcontractor which has been entered into in accordance with the Design/Build
Contract.
"SUBCONTRACTOR" is defined in the Design/Build Contract.
"SUBSIDIARY" means, relative to any Person, any corporation, partnership or
other business entity of which more than 50% of the outstanding capital stock
(or other ownership interest) having ordinary voting power to elect the board of
directors, managers or other voting members of the governing body of such Person
(irrespective of whether at the time Capital Stock (or other ownership interest)
of any other class or classes of such Person shall or might have voting power
upon the occurrence of any contingency) is at the time directly or indirectly
owned by such Person, by such Person and one or more other Subsidiaries of such
Person, or by one or more other Subsidiaries of such Person. Except as
otherwise indicated herein, references to Subsidiaries refer to Subsidiaries of
the Borrower.
"SUBSTANTIAL COMPLETION" means that (x) the conditions set forth in the
definition of "Completion" have occurred, (y) "SUBSTANTIAL COMPLETION" (as such
is defined in SECTION 31.8 of the General Conditions annexed to the Design/Build
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Contract as ATTACHMENT D) has occurred and (z) a Main Project Certificate of
Occupancy has been issued and is outstanding for the Hotel/Casino.
"SURVEY" means, collectively, the surveys required by SECTION 3.1.24 of the
Disbursement Agreement.
"SYNDICATION AGENT" is defined in the PREAMBLE of the Credit Agreement.
"TAX" means any federal, state, local, foreign or other tax, levy, impost,
fee, assessment or other government charge, including income, estimated income,
business, occupation, franchise, property, payroll, personal property, sales,
transfer, use, employment, commercial rent, occupancy, franchise or withholding
taxes, and any premium, including interest, penalties and additions in
connection therewith.
"TAX AMOUNT" means, relative to any period, without duplication, the
increase in the cumulative United States federal, state and local income tax
liability of the holders of Equity Interests in the Borrower (or if the holder
is a pass-though entity for United States income tax purposes, the direct or
indirect holders of its equity interests subject to United States, state and
local income tax) in respect of such interests for such period, plus any
additional amounts payable to such holders for taxes arising from ownership of
such Equity Interests.
"TENANT IMPROVEMENT" means (x) the portion of the construction to be
performed by or on behalf of the Borrower in the interior of the Main Project
pursuant to a lease to adapt the same for the initial use and occupancy by the
tenant under such lease or (y) if a tenant under a Lease undertakes to complete
the work to the portion of the Main Project covered by such Lease, any
allowances or payments advanced to such Person by the Borrower.
"TERM A LENDER" means any Lender which has made a Term A Loan Commitment or
holds a Term A Loan.
"TERM A LOAN" is defined in SECTION 2.1.1 of the Credit Agreement.
"TERM A LOAN COMMITMENT" means the aggregate principal amount of Term A
Loans which the Term A Lenders are obligated to make pursuant to SECTION 2.1.1
of the Credit Agreement. The Term A Loan Commitment shall not exceed
$136,000,000.
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"TERM A LOAN COMMITMENT AMOUNT" means, on any date, relative to any Term A
Lender, the portion of the Term A Loan Commitment of such Term A Lender reduced
by the principal amount of any Term A Loans made by such Term A Lender as of
such date. The portion of the Term A Loan Commitment of each Term A Lender is
set forth below such Term A Lender's signature to the Credit Agreement or in a
Lender Assignment Agreement.
"TERM A LOAN COMMITMENT FEE" is defined in SECTION 3.3.1 of the Credit
Agreement.
"TERM A LOAN COMMITMENT TERMINATION DATE" means the earlier of
(a) the Term B and Term C Loan Commitment Termination Date (if the
Term B Loans and Term C Loans have not been made on or prior to such date);
(b) the Conversion Date; and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in CLAUSE (A) or (B), the Term A Loan
Commitments shall terminate automatically and without any further action.
"TERM A NOTE" means, on any date, a promissory note of the Borrower payable
to any Term A Lender, in the form of EXHIBIT A-1 to the 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 A Lender resulting from outstanding
Term A Loans, and also means all other promissory notes accepted from time to
time in substitution or replacement therefor or renewal thereof.
"TERM B AND TERM C LOAN COMMITMENT FEE" is defined in SECTION 3.3.1 of the
Credit Agreement.
.
"TERM B AND TERM C LOAN COMMITMENT TERMINATION DATE" means the earlier of
(a) February 27, 1998; and
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(b) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in CLAUSE (A) or (B), the Term B Loan
Commitments and the Term C Loan Commitments shall terminate automatically and
without any further action.
"TERM B LENDER" means any Lender which has made a Term B Loan Commitment or
holds a Term B Loan.
"TERM B LOAN" is defined in CLAUSE (A) of SECTION 2.1.3 of the Credit
Agreement.
"TERM B LOAN COMMITMENT" means the aggregate principal amount of Term B
Loans which the Term B Lenders are obligated to make pursuant to CLAUSE (B) of
SECTION 2.1.3 of the Credit Agreement. The Term B Loan Commitment shall not
exceed $114,000,000.
"TERM B LOAN COMMITMENT AMOUNT" means, on any date, relative to any Term B
Lender, the portion of the Term B Loan Commitment of such Term B Lender reduced
by the principal amount of any Term B Loans made by such Term B Lender as of
such date. The portion of the Term B Loan Commitment of each Term B Lender is
set forth below such Term B Lender's signature to the Credit Agreement or in a
Lender Assignment Agreement.
"TERM B NOTE" means, on any date, a promissory note of the Borrower payable
to any Term B Lender, in the form of EXHIBIT A-2 to the 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 B Lender resulting from outstanding
Term B Loans, and also means all other promissory notes accepted from time to
time in substitution or replacement therefor or renewal thereof.
"TERM C LENDER" means any Lender which has made a Term C Loan Commitment or
holds a Term C Loan.
"TERM C LOAN" is defined in CLAUSE (B) of SECTION 2.1.3 of the Credit
Agreement.
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"TERM C LOAN COMMITMENT"means the aggregate principal amount of Term C
Loans which the Term C Lenders are obligated to make pursuant to CLAUSE (C) of
SECTION 2.1.3 of the Credit Agreement. The Term C Loan Commitment shall not
exceed $160,000,000.
"TERM C LOAN COMMITMENT AMOUNT" means, on any date, relative to any Term C
Lender, the portion of the Term C Loan Commitment of such Term C Lender reduced
by the principal amount of any Term C Loans made by such Term C Lender as of
such date. The portion of the Term C Loan Commitment of each Term C Lender is
set forth below such Term C Lender's signature to the Credit Agreement or in a
Lender Assignment Agreement.
"TERM C NOTE" means, on any date, a promissory note of the Borrower payable
to any Term C Lender, in the form of EXHIBIT A-3 to the 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 C Lender resulting from outstanding
Term C Loans, and also means all other promissory notes accepted from time to
time in substitution or replacement therefor or renewal thereof.
"THEATER" is defined in CLAUSE (D) of the FOURTH RECITAL of the Credit
Agreement.
"THEATER LEASE" means, on any date, the Lease, to be entered into between
the Borrower and Aladdin Music covering the Theater Space as the same may be
amended, supplemented, amended and restated, replaced or otherwise modified from
time to time in accordance with the terms of the Credit Agreement.
"THEATER RENOVATION COMPLETION" means that each of the following has
occurred:
(a) the renovation of the Theater has been completed substantially in
accordance with the Credit Agreement, the Plans and Specifications, the
provisions of the Reciprocal Easement Agreement applicable to the Theater
and all of the other Operative Documents to the extent that the
development, renovation, use or operation of the Theater are affected
thereby, except for the Main Project Punchlist Items applicable to the
Theater and in substantial compliance with all Legal Requirements
pertaining to the renovation of the Theater so as to allow the Theater to
be utilized for its intended purpose;
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(b) reasonable and safe means of access and facilities necessary for
the use and occupancy of the Theater have been installed and are
operational including corridors, elevators, stairways, heating,
ventilation, air conditioning, sanitary, water and electrical facilities
and all security systems and life safety systems required by the Plans and
Specifications, the Reciprocal Easement Agreement, the other Operative
Documents and all Legal Requirements; and
(c) there are no outstanding claims or Liens by any Contractor or
Subcontractor or any other Person against any portion of the Hotel/Casino
Component except for Permitted Liens and Permitted Encumbrances.
"THEATER SPACE" means the property and the space described in EXHIBIT N-7
to the Credit Agreement.
"TITLE INSURER" means, collectively, Stewart Title Guaranty Company and
Lawyers Title Insurance Corporation.
"TITLE POLICY" means each lenders A.L.T.A. policy of title insurance issued
by the Title Insurer as of the Effective Date, as provided in SECTION 3.1.25 of
the Disbursement Agreement, including all amendments thereto, endorsements
thereof and substitutions or replacements therefor.
"TOTAL DEBT" means, on any date, the outstanding principal amount of all
Indebtedness of the Borrower of the type described in CLAUSES (A), (B) and (C)
of such definition and (without duplication) any Contingent Liability in respect
of any of the foregoing of any other Person.
"TOTAL DEBT TO EBITDA RATIO" means, as of the close of any Fiscal Quarter,
commencing with the close of the Fiscal Quarter in which the Conversion Date
occurs, the ratio of
(a) Total Debt outstanding on the last day of such Fiscal Quarter
TO
(b) EBITDA computed for the period consisting of such Fiscal Quarter
(or such shorter portion of any Fiscal Quarter after the occurrence therein
of the Conversion Date) and each of the three immediately preceding
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Fiscal Quarters (or such lesser number of Fiscal Quarters to have closed
since the Conversion Date) and determined for any period ending on or prior
to the first anniversary of the Conversion Date, consistently with the
proviso to the definition of the term "EBITDA".
"TRADE DETAIL REPORT" means a Trade Detail Report in the form of EXHIBIT DD
to the Credit Agreement.
"TRADEMARK SECURITY AGREEMENT" means, on any date, the Trademark Security
Agreement executed and delivered by an Authorized Representative of the Borrower
pursuant to SECTION 5.1.6 of the Credit Agreement, as originally in effect on
the Closing Date, in substantially the form of Exhibit B to the Security
Agreement and as thereafter from time to time amended, supplemented, amended and
restated or otherwise modified.
"TRANSACTION" means the transactions contemplated by the Discount Note
Indenture and the Operative Documents.
"TRUST" means the Trust under Article Sixth u/w/o Sigmund Sommer, or in the
event of the dissolution of the Trust, the beneficiaries or the remaindermen
thereof.
"TRUST ESTATE" is defined in the Deed of Trust.
"TYPE" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"UCC" means the Uniform Commercial Code of the jurisdiction the law of
which governs the document with respect to the term used.
"UNALLOCATED CONTINGENCY BALANCE" means (w) during the first month after
the Effective Date, the greater of (1) $24,000,000 or (2) the Unallocated
Contingency Calculation, (x) during the second month after the Effective Date,
the greater of $23,000,000 or (2) the Unallocated Contingency Calculation, (y)
during the third month after the Effective Date, the greater of $22,000,000 or
(2) the Unallocated Contingency Calculation, and (z) thereafter, from time to
time, the Unallocated Contingency Calculation.
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"UNALLOCATED CONTINGENCY CALCULATION" means an amount equal to (x)
$25,000,000 MINUS (y) the product of (1) $25,000,000 MULTIPLIED BY (2) the
percentage of construction completed on the date that the Advance is to be made,
as determined by the Construction Consultant.
"UNITED STATES" or "U.S." means the United States of America, its fifty
states and the District of Columbia.
"UNSUITABLE LENDER" is defined in CLAUSE (C) of SECTION 4.11 of the Credit
Agreement.
"VOTING STOCK" means, with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"WARRANT" means the warrants issued by Enterprises on February 18, 1998
which, if exercised, will in the aggregate for all such warrants entitle the
holders thereof to acquire an aggregate of not more than 2,215,000 shares of the
Capital Stock of Enterprises representing an indirect interest in not more than
10% of the Holdings Common Membership Interests, plus, warrants for up to
1,107,500 shares of the Capital Stock of Enterprises which may be issued in
connection with the Mall Project credit enhancement on terms substantially the
same as the Warrants issued by Enterprises on February 18, 1998.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, relative to any Indebtedness at
any date, the number of years (calculated to the nearest one-twelfth) obtained
as the quotient of (x) the sum of the product of (1) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment at final maturity, in respect thereof,
MULTIPLIED BY (2) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date and the making of such payment DIVIDED BY
(y) the then outstanding principal amount or liquidation preference, as
applicable, of such Indebtedness.
"WELFARE PLAN" means a "WELFARE PLAN", as such term is defined in
Section 3(1) of ERISA.
"WHOLLY-OWNED" means, with respect to any direct or indirect Subsidiary,
any Subsidiary all of the outstanding common stock (or similar equity interest)
of which
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(other than any director's qualifying shares or investments by foreign nationals
mandated by applicable laws) is owned directly or indirectly by the Borrower.
"WORK" is defined in SECTION 1.7 of the Design/Build Contract.
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