SUPPLEMENTAL INDENTURE
SUPPLEMENTAL
INDENTURE (this “Supplemental Indenture”), dated as of January 11, 2008, among
American Casino & Entertainment Properties LLC, a Delaware limited liability
company, as issuer (“ACEP”), American Casino & Entertainment Properties
Finance Corp., a Delaware corporation, as co-issuer (“ACEP Finance” and,
together with ACEP, the “Company”), the Guarantors and Wilmington Trust Company,
as trustee under the Indenture (the “Trustee”).
W
I T N E
S S E T H
WHEREAS,
the Company, the Guarantors and the Trustee have heretofore entered into an
indenture, dated as of January 29, 2004 (as heretofore supplemented and
currently in effect, the “Indenture”), providing for the issuance of the
Company’s 7.85% Senior Secured Notes due 2012 (the “Notes”);
WHEREAS,
this Supplemental Indenture sets forth certain proposed amendments to the
Indenture (the “Proposed Amendments”) to (i) eliminate substantially all of the
restrictive and reporting covenants, certain events of default and certain
other
provisions contained in the Indenture, as set forth in Section 2 hereof, (ii)
release the security interest in the collateral securing the Indenture, the
Notes and the Note Guarantees, as set forth in Section 3(a) hereof (the
“Collateral Release”), and (iii) release each Guarantor from its obligations
under its Note Guarantee, as set forth in Section 3(b) hereof (the “Guarantor
Release,” and, together with the Collateral Release, the
“Releases”);
WHEREAS,
the board of directors of American Entertainment Properties Corp., a Delaware
corporation, the sole member of ACEP (“AEP”) has determined that it is in the
best interests of AEP to authorize and approve the Proposed Amendments set
forth
in this Supplemental Indenture;
WHEREAS,
pursuant to Section 9.02 of the Indenture, the Proposed Amendments (other than
the Proposed Amendments to effect the Releases) require the consent of the
Holders of at least a majority in aggregate principal amount of the then
outstanding Notes (the “Requisite Consents”), and the Proposed Amendments to
effect the Releases require the consent of Holders of at least 75% in aggregate
principal amount of the then outstanding Notes (the “Release
Consents”);
WHEREAS,
ACEP has offered to purchase for cash (the “Offer”) any and all of the
outstanding Notes and has solicited consents from Holders of the Notes to the
Proposed Amendments, upon the terms and subject to the conditions set forth
in
the Offer to Purchase and Consent Solicitation Statement, dated as of December
28, 2007 (together with any amendments, the “Statement”);
WHEREAS,
the Offer is conditioned upon, among other things, the execution of a
supplemental indenture providing for the Proposed Amendments;
WHEREAS,
ACEP has received, pursuant to the Offer, the Requisite Consents with respect
to
the Proposed Amendments (other than the Proposed Amendments to effect the
Releases) and the Release Consents with respect to the Proposed Amendments
to
effect the Releases, and all other conditions precedent, if any, provided for
in
the Indenture relating to the execution of this Supplemental Indenture, the
release of the security interests in the Note Collateral under the Indenture,
the Notes, the Note Guarantees and the Collateral Documents, and the release
of
the Guarantors under the Note Guarantees have been complied with as of the
date
hereof;
WHEREAS,
the execution and delivery of this Supplemental Indenture have been duly
authorized by the Company and the Guarantors and all conditions and requirements
necessary to make this Supplemental Indenture a valid and binding agreement
of
the Company and the Guarantors have been duly performed and complied with;
and
WHEREAS,
pursuant to Section 9.02 of the Indenture, the Trustee is authorized to execute
and deliver this Supplemental Indenture.
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company, the
Guarantors and the Trustee mutually covenant and agree, for the benefit of
each
other and for the equal and ratable benefit of the Holders of the Notes, as
follows:
1. Capitalized
Terms.
Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture.
2. Amendments.
The
Proposed Amendments set forth in Section 2 hereof shall become operative, and
the terms of the Indenture, the Notes and the Note Guarantees shall be amended,
supplemented, modified or deleted hereby, in each case only upon the Payment
Date (as defined herein).
(a) The
following Sections of the Indenture, and any corresponding provisions in the
Notes, are hereby deleted in their entirety and replaced with “[Intentionally
Omitted.]”:
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Indenture
Section Reference
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Caption
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4.02
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Maintenance
of Office or Agency
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4.03
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Reports
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4.04
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Compliance
Certificates
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4.05
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Taxes
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4.06
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Stay,
Extension and Usury Laws
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4.07
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Restricted
Payments
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4.08
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Dividend
and Other Payment Restrictions
Affecting
Subsidiaries
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4.09
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Incurrence
of Indebtedness and Issuance of
Preferred
Stock
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4.10
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Asset
Sales
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4.11
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Transactions
with Affiliates
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4.12
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Liens
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4.13
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Business
Activities
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4.14
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Corporate
Existence
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4.15
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Offer
to Purchase Upon Change of Control
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4.16
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Event
of Loss
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4.17
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Sale
and Leaseback Transactions
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4.18
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Insurance
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4.19
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Limitation
on Issuances and Sales of
Capital
Stock of Restricted Subsidiaries
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4.20
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Additional
Note Guarantees
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4.21
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Restrictions
on Leasing and Dedication of Property
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4.22
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Designation
of Restricted and Unrestricted Subsidiaries
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4.23
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Further
Assurances
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(b) Section
5.01 of the Indenture is hereby deleted in its entirety and restated as
follows:
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“ACEP
shall not, directly or indirectly: (1) consolidate or merge with or into another
Person (whether or not ACEP is the surviving corporation), or (2) sell, assign,
transfer, convey or otherwise dispose of all or substantially all of the
properties or assets of ACEP taken as a whole, in one or more related
transactions, to another Person, unless the Person formed by or surviving any
such consolidation or merger (if other than ACEP) or the Person to which such
sale, assignment, transfer, conveyance or other disposition has been made
assumes all the obligations of ACEP under the Notes and this Indenture pursuant
to agreements reasonably satisfactory to the Trustee.”
(c) Section
6.01 of the Indenture is hereby amended by deleting clauses (3), (4), (5),
(6),
(7), (8), (9), (10), (11) and (12) thereof.
(d) Section
8.04 of the Indenture is hereby deleted in its entirety and restated as follows:
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“In
order to exercise either Legal Defeasance or Covenant Defeasance
under
either Section 8.02 or 8.03
thereof:
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(1)
the Company must irrevocably deposit with the Trustee, in trust,
for the
benefit of the Holders, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized investment
bank,
appraisal firm, or firm of independent public accountants, to pay
the
principal of, premium and Liquidated Damages, if any, and interest
on the
outstanding Notes on the stated date for payment thereof or on the
applicable redemption date, as the case may be, and the Company must
specify whether the Notes are being defeased to such stated date
for
payment or to a particular redemption
date;
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(2)
in the case of an election under Section 8.02 hereof, the Company
must
deliver to the Trustee an Opinion of Counsel confirming
that:
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(A)
the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling; or
(B)
since
the date of this Indenture, there has been a change in the applicable federal
income tax law,
in
either
case to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the outstanding Notes will not recognize income, gain
or
loss for federal income tax purposes as a result of such Legal Defeasance and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal Defeasance
had
not occurred;
| (3) in the case of an election under Section 8.03 hereof, the Company must deliver to the Trustee an Opinion of Counsel confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; |
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| (4) no Default or Event of Default shall have occurred and be continuing on the date of such deposit and the deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound; |
| (5) the Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound; and |
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(6)
the Company must deliver to the Trustee an Officers' Certificate
and an
Opinion of Counsel, each stating that all conditions precedent provided
for or relating to the Legal Defeasance or the Covenant Defeasance
have
been complied with.”
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(e) Certain
definitions in the Indenture shall be deemed deleted when references to such
definitions would be eliminated as a result of the amendments described herein;
cross-references to provisions in the Indenture that have been deleted as a
result of the Proposed Amendments shall be deemed deleted; and certain other
changes to the Indenture of a technical or conforming nature shall be deemed
made to the extent necessary to reflect the deletion of the provisions described
herein. Any definitions used exclusively in the provisions of the Notes that
are
hereby deleted, and any definitions used exclusively within such definitions,
are hereby deleted in their entirety from the Notes, and all references in
the
Notes to paragraphs, Sections, Articles or other terms or provisions of the
Indenture that have been otherwise deleted as a result of the Proposed
Amendments are hereby deleted in their entirety or revised to conform herewith,
as the case may be.
3. Release
of Note Collateral and Release of Note Guarantees.
(a)
In
accordance with and subject to Section 10.03(b)(3) of the Indenture,
the
Note
Collateral will be released from the Lien and security interest created by
the
Indenture and the Collateral Documents at such time as (but not before), (i)
the
Officer’s Certificate required by Section 10.03(b) shall have been delivered to
the Collateral Agent, which the Company covenants to deliver prior to the
Acceptance Date (as defined in the Statement), and the Trustee shall have been
provided with a copy thereof, (ii) the Company shall have delivered to the
Trustee all documents specified in Section 10.04 of the Indenture and an Opinion
of Counsel as specified in Section 10.04(2) of the Indenture, which the Company
covenants to deliver prior to the Acceptance Date, (iii) the applicable
provisions of Article 10 of the Indenture and each of the Collateral Documents
with respect to the release of the collateral thereunder shall have otherwise
been complied with, (iv) the Collateral Agent shall have executed, delivered
or
acknowledged any necessary or proper instruments of termination, satisfaction
or
release to evidence the release of any Note Collateral permitted to be released
pursuant to the Indenture or the Collateral Documents, and the Trustee shall
have been provided with copies thereof, and (v) the Company shall have delivered
to the Trustee an Officer’s Certificate and an Opinion of Counsel (which may be
included in the Opinion of Counsel provided under clause (ii) above) stating
that all conditions to the release of the Note Collateral under the Indenture,
Supplemental Indenture and the Collateral Documents have been satisfied. From
and after such time, the provisions of Sections 10.01 and 10.02 of the Indenture
shall be deemed to be repealed and of no further force or affect.
(b)
In
accordance with Section 11.05(d) of the Indenture, each Guarantor shall be
released and relieved of any and all of its Obligations under its Note Guarantee
at such time as (but not before) the Proposed Amendments shall become operative
in accordance with Section 11 hereof. From and after such time, the provisions
of Section 11.01 through Section 11.04 of the Indenture, and any notation of
Note Guarantee executed and delivered by any Guarantor, shall be deemed to
be
repealed and of no further force or affect.
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(c)
Upon
satisfaction of the conditions to the release of the Note Collateral as
specified in clauses (i) through (v) of Section 3(a) above, the Trustee is
hereby instructed to deliver to the Collateral Agent the certificates of the
Trustee contemplated by Section 10.05 and Section 10.08 of the Indenture;
provided, however, that the certificate pursuant to Section 10.08 of the
Indenture shall not state that the Obligations of the Company under the
Indenture and the Notes have been paid in full.
4. Effects
of Supplemental Indenture.
Each
reference in the Indenture to “this Indenture,” “hereunder,” “hereof” or
“herein” shall mean and be a reference to the Indenture as amended and
supplemented by this Supplemental Indenture unless the context otherwise
requires. The Indenture as amended and supplemented by this Supplemental
Indenture shall be read, taken and construed as one and the same instrument,
and
every holder heretofore or hereafter authenticated and delivered under the
Indenture as supplemented by this Supplemental Indenture shall be bound thereby.
5. Existing
Indenture Remains in Full Force and Effect. Except
as amended and supplemented by this Supplemental Indenture, all provisions
in
the Indenture shall remain in full force and effect.
6. Conflict
with Trust Indenture Act. If
any provision of this Supplemental Indenture limits, qualifies or conflicts
with
any provision of the Trust Indenture Act of 1939 (the “Act”) that is required
under such Act to be part of and govern any provision of this Supplemental
Indenture, the provision of such Act shall control. If any provision of this
Supplemental Indenture modifies or excludes any provision of the Act that may
be
so modified or excluded, the provision of such Act shall be deemed to apply
to
the Indenture as so modified or shall be deemed to be excluded by this
Supplemental Indenture, as the case may be.
7. Separability
Clause. In
case any provision in this Supplemental Indenture shall be invalid, illegal
or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
8. Effect
of Headings. The
Section headings herein are for convenience only and shall not affect the
construction hereof.
9. Benefits
of Supplemental Indenture, etc. Nothing
in this Supplemental Indenture, the Indenture, the Notes or the Note Guarantees,
express or implied, shall give to any Person, other than the parties hereto
and
thereto and their successors hereunder and thereunder and the holders of the
Notes, any benefit of any legal or equitable right, remedy or claim under the
Indenture, this Supplemental Indenture, the Notes or the Note
Guarantees.
10. Successors
and Assigns. All
covenants and agreements in this Supplemental Indenture by the Company and
the
Guarantors shall bind their respective successors and assigns, whether so
expressed or not.
11. Effectiveness.
This Supplemental Indenture shall become effective and binding on the Company,
the Guarantors and the Trustee upon the execution and delivery by the parties
to
this Supplemental Indenture; provided, however, that the Proposed Amendments
shall become operative, and the terms of the Indenture shall be amended,
supplemented, modified or deleted hereby, in each case only upon (i)
satisfaction of the conditions to the release of the Note Collateral as
specified in Section 3 above, (ii) the Company depositing with the Tender Agent
(as defined in the Statement) in immediately available funds the Total
Consideration or the Tender Offer Consideration, as applicable (each as defined
in the Statement), together with accrued and unpaid interest payable up to
but
not including such time (the “Payment Date”) in respect of Notes accepted
pursuant to the Offer and (iii) the Company paying in cash or other immediately
available funds all outstanding fees and expenses of the Trustee owing under
the
Indenture and of the Collateral Agent, including payment of the fees and
expenses of their counsel. If there is no Payment Date in accordance with the
terms of the Statement, or any of the other foregoing conditions are not
satisfied, then the Proposed Amendments set forth herein shall not become
operative, and the terms of the Indenture shall not be amended, supplemented,
modified or deleted hereby.
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12. Trustee
Makes No Representation. The
Trustee makes no representation as to the validity or sufficiency of this
Supplemental Indenture.
13. Certain
Duties and Responsibilities of the Trustee.
In
entering into this Supplemental Indenture, the Trustee shall be entitled to
the
benefit of every provision of the Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee, whether or not
elsewhere herein so provided.
14. Governing
Law. THE
INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
THIS
SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
15. Counterparts. This
Supplemental Indenture may be executed in counterparts, each of which, when
so
executed, shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
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IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to
be duly executed and attested, all as of the date first above
written.
| 129-133 WCA LLC | ||
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| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx |
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| Title: President and Chief Executive Officer | ||
| CHICAGO AVENUE LV HOLDINGS LLC | ||
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| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx |
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| Title: President and Chief Executive Officer | ||
| LV ACQUISITIONS LLC | ||
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| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx |
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| Title: President and Chief Executive Officer | ||
| PITTSFIELD ASSOCIATES LLC | ||
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| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx |
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| Title: President and Chief Executive Officer | ||
| FARRAGUT LLC | ||
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| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx |
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| Title: President and Chief Executive Officer | ||
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AMERICAN
CASINO & ENTERTAINMENT
PROPERTIES
LLC
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| By: |
American
Entertainment Properties Corp., its sole member
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| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx |
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| Title: President and Chief Executive Officer | ||
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AMERICAN
CASINO & ENTERTAINMENT
PROPERTIES
FINANCE CORP.
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| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx |
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| Title: President and Chief Executive Officer | ||
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|
CHARLIE’S
HOLDING LLC
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| By: |
American
Casino & Entertainment
Properties
LLC, its sole member
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| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx |
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| Title: President and Chief Executive Officer | ||
| FRESCA, LLC | ||
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| By: | Charlie’s Holding LLC, its sole member | |
| By: |
American
Casino
& Entertainment
Properties LLC, its sole
member
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| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: Xxxxxxx X. Xxxxx | ||
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Title:
President and Chief
Executive
Officer
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| STRATOSPHERE DEVELOPMENT, LLC | ||
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| By: | Stratosphere Corporation, member | |
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: Xxxxxxx X. Xxxxx | ||
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Title:
President and Chief
Executive
Officer
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| By: | Arizona Charlie’s, LLC, member |
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: Xxxxxxx X. Xxxxx | ||
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Title:
President and Chief
Executive
Officer
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| By: | Fresca, LLC, member |
| By: | Charlie’s Holding LLC, its sole member |
| By: |
American
Casino
& Entertainment
Properties LLC, its sole
member
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| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: Xxxxxxx X. Xxxxx | ||
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Title:
President and Chief
Executive
Officer
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| STRATOSPHERE CORPORATION | ||
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| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx |
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| Title: President and Chief Executive Officer | ||
| STRATOSPHERE GAMING CORP. | ||
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| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx |
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| Title: President and Chief Executive Officer | ||
| ARIZONA CHARLIE’S, LLC | ||
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| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx |
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| Title: President and Chief Executive Officer | ||
| STRATOSPHERE LEASING, LLC | ||
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| By: | Stratosphere Corporation, its sole member | |
| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx |
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| Title: President and Chief Executive Officer | ||
| STRATOSPHERE ADVERTISING AGENCY | ||
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| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx |
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| Title: President and Chief Executive Officer | ||
| STRATOSPHERE LAND CORPORATION | ||
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| By: | /s/ Xxxxxxx X. Xxxxx | |
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Name: Xxxxxxx X. Xxxxx |
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| Title: President and Chief Executive Officer | ||
| WILMINGTON TRUST COMPANY, as Trustee | ||
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| By: | /s/ Xxxxxxx X. Xxxxx, Xx. | |
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Name: Xxxxxxx X. Xxxxx, Xx. |
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Title:
Senior Financial Services Officer
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