EXHIBIT 10.6
EXECUTION VERSION
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FIRST AMENDMENT
to
CREDIT AGREEMENT
Dated as of January 29, 2004
among
AMERICAN CASINO & ENTERTAINMENT PROPERTIES LLC,
as the Borrower,
Certain Subsidiaries of the Borrower
From Time To Time Party Hereto,
as Guarantors,
The Several Lenders
from Time to Time Parties Hereto,
BEAR XXXXXXX CORPORATE LENDING INC.,
as Syndication Agent,
and
BEAR XXXXXXX CORPORATE LENDING INC.,
as Administrative Agent
Dated as of May 26, 2004
BEAR, XXXXXXX & CO. INC., as Sole Lead Arranger and Sole Bookrunner
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TABLE OF CONTENTS
PAGE
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SECTION 1. DEFINITIONS..................................................... 1
1.01 Definitions.................................................... 1
SECTION 2. AMENDMENTS...................................................... 1
2.01 Amendment of Defined Terms..................................... 1
SECTION 3. CONDITIONS PRECEDENT............................................ 1
3.01 Consent........................................................ 1
3.02 Amendment...................................................... 2
SECTION 4. MISCELLANEOUS................................................... 2
4.01 Execution of this Agreement.................................... 2
4.02 No Waiver; Cumulative Remedies................................. 2
4.03 Counterparts................................................... 2
4.04 Integration.................................................... 2
4.05 Ratification................................................... 2
4.06 Severability................................................... 3
4.07 GOVERNING LAW.................................................. 3
4.08 Headings....................................................... 3
ii
This FIRST AMENDMENT dated as of May 26, 2004 (this "Agreement")
among AMERICAN CASINO & ENTERTAINMENT PROPERTIES LLC, a Delaware limited
liability company ("ACEP" or the "Borrower"), THE FOOTHILL GROUP, INC., as
Issuing Lender, and BEAR XXXXXXX CORPORATE LENDING INC., as administrative agent
(in such capacity, the "Administrative Agent") for the financial institutions
party to the Credit Agreement (as defined below) as lenders (collectively, the
"Lenders"), to the Credit Agreement dated as of January 29, 2004, among the
Borrower, certain Subsidiaries of the Borrower from time to time party to such
agreement (the "Guarantors"), the Lenders, BEAR, XXXXXXX & CO. INC., as sole
lead arranger and sole bookrunner, BEAR XXXXXXX CORPORATE LENDING INC., as
syndication agent and the Administrative Agent.
W I T N E S S E T H
WHEREAS, the parties hereto wish to amend the Credit Agreement to
give effect to the foregoing and to acknowledge the designation of Xxxxx Fargo
Foothill, Inc. and its affiliates ("Foothill") as the Issuing Lender, and
WHEREAS, Foothill has agreed to accept such designation.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
SECTION 1. DEFINITIONS
1.01 Definitions.
Except as otherwise expressly provided, capitalized terms used in
this Agreement and its exhibits shall have the meanings given in Section 1.1 of
the Credit Agreement.
SECTION 2. AMENDMENTS
2.01 Amendment of Defined Terms
(a) "Issuing Lender" is hereby amended by replacing the definition
in its entirety with the following:
"Issuing Lender": Xxxxx Fargo Foothill, Inc., and any of its
affiliates.
SECTION 3.CONDITIONS PRECEDENT
The effectiveness of this Agreement shall be subject to the
satisfaction of each of the following conditions precedent:
3.01 Consent.
1
The Administrative Agent shall have received, from the Majority
Lenders, consents in writing with respect to this Amendment.
3.02 Amendment.
The Administrative Agent shall have executed this Agreement and each
of the Borrower and the Issuing Lender shall have delivered to the
Administrative Agent duly executed counterparts of this Agreement.
SECTION 4. MISCELLANEOUS
4.01 Execution of this Agreement.
This Agreement is executed and shall be construed as an Amendment to
the Credit Agreement, and, as provided in the Credit Agreement, this Agreement
forms a part thereof.
4.02 No Waiver; Cumulative Remedies.
This Agreement is made in amendment and modification of the
obligations set forth in the Credit Agreement and the other Loan Documents and,
except as specifically modified pursuant to the terms of this Agreement, the
terms and conditions of the Credit Agreement and the other Loan Documents remain
in full force and effect. No failure to exercise and no delay in exercising, on
the part of any Agent or any Lender, any right, remedy, power or privilege under
this Agreement, the Credit Agreement or the other Loan Documents shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
4.03 Counterparts.
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
Delivery of an executed signature page of this Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof. A set of the copies of this Agreement signed by all the parties shall be
lodged with ACEP and the Administrative Agent.
4.04 Integration.
This Agreement, the Credit Agreement and the other Loan Documents
represent the entire agreement of the Group Members, the Agents and the Lenders
with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by any Agent or any Lender
relative to subject matter hereof not expressly set forth or referred to herein
or in the Credit Agreement or in the other Loan Documents.
4.05 Ratification.
2
Each of the Loan Documents shall continue to be in full force and
effect and are hereby in all respects ratified and confirmed.
4.06 Severability.
Any provision of this Agreement that 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.
GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
4.08 Headings.
Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
AMERICAN CASINO & ENTERTAINMENT
PROPERTIES LLC, a Delaware limited
liability company
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Vice President, Chief
Financial Officer, Secretary and
Treasurer
[FIRST AMENDMENT AND WAIVER TO CREDIT AGREEMENT]
BEAR XXXXXXX CORPORATE LENDING INC.,
as Administrative Agent
By: /s/ Xxxxx X'Xxxxx
------------------------------------
Name: Xxxxx X'Xxxxx
Title: Vice President
[FIRST AMENDMENT AND WAIVER TO CREDIT AGREEMENT]
XXXXX FARGO FOOTHILL, INC., as Issuing
Lender
By: The Foothill Group, Inc., as Lender
/s/ R. Xxxxxxx Xxxxxxxx
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Name: R. Xxxxxxx Xxxxxxxx
Title: Senior Vice President
[FIRST AMENDMENT AND WAIVER TO CREDIT AGREEMENT]
