Exhibit 99.5
October __, 2004
EXCHANGE AGENT AGREEMENT
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
American Casino & Entertainment Properties LLC ("ACEP") and American
Casino & Entertainment Properties Finance Corp. ("ACEP Finance", and together
with ACEP, the "Company"), proposes to make an offer (the "Exchange Offer") to
exchange its $215,000,000 principal amount of 7.85% Senior Secured Notes due
2012 (the "New Notes") for a like principal amount of its outstanding 7.85%
Senior Secured Notes due 2012 (the "Old Notes"). The terms and conditions of the
Exchange Offer as currently contemplated are set forth in a prospectus dated
____________, 2004 (the "Prospectus"), included in the Company's registration
statement on Form S-4 (File No. 333-118149) as amended (the "Registration
Statement") filed with the Securities and Exchange Commission (the "SEC"), and
proposed to be distributed to all record holders of the Old Notes. The Old Notes
and the New Notes are collectively referred to in this Exchange Agent Agreement
(this "Agreement") as the "Notes" or the "Securities." Capitalized terms used
herein and not defined shall have the respective meanings ascribed to them in
the Prospectus or the accompanying letter of transmittal (the "Letter of
Transmittal").
The Company hereby appoints Wilmington Trust Company, a corporation
organized and existing under the laws of the State of Delaware, to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to Wilmington Trust Company.
The Exchange Offer is expected to be commenced by the Company on or
about _________, 2004. The Letter of Transmittal accompanying the Prospectus is
to be used by the holders of the Old Notes to tender into the Exchange Offer,
and contains instructions with respect to the delivery of Old Notes tendered.
The Exchange Agent's obligations with respect to receipt and inspection of the
Letter of Transmittal in connection with the Exchange Offer shall be satisfied
for all purposes hereof by (1) inspection of the electronic message transmitted
to the Exchange Agent by Exchange Offer participants in accordance with the
Automated Tender Offer
Program ("ATOP") of the Depository Trust Company ("DTC"), and by otherwise
observing and complying with all procedures established by DTC in connection
with ATOP, to the extent that ATOP is utilized by Exchange Offer participants,
or (2) by inspection of the Letter of Transmittal by each respective holder of
Old Notes.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
________, 2004, or on such later date or time to which the Company may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Company expressly reserves the right to extend
the Exchange Offer from time to time and may extend the Exchange Offer by giving
oral (confirmed in writing) or written notice to you at any time before 9:00
a.m., New York City time, on the business day following the previously scheduled
Expiration Date, and in such case the term "Expiration Date" shall mean the time
and date on which the Exchange Offer as so extended shall expire.
The Company expressly reserves the right, in its sole discretion, to
delay, amend or terminate the Exchange Offer, and not to accept for exchange any
Old Notes not theretofore accepted for exchange, in among other cases upon the
occurrence of any of the conditions of the Exchange Offer specified in the
Prospectus under the captions "The Exchange Offer -- Conditions" and "The
Exchange Offer -- Expiration Date; Extensions; Amendments". The Company will
give to you as promptly as practicable oral (confirmed in writing) or written
notice of any delay, amendment, termination or non-acceptance.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth herein or in the section of the Prospectus captioned the
"The Exchange Offer", in the Letter of Transmittal accompanying the Prospectus
and such duties which are necessarily incidental thereto.
2. You will establish a book-entry account with respect to the Old
Notes at The Depository Trust Company (the "Book-Entry Transfer Facility") for
purposes of the Exchange Offer within two business days after the date of the
Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry delivery of the Old
Notes by causing the Book-Entry Transfer Facility to transfer such Old Notes
into your account in accordance with the Book-Entry Transfer Facility's
procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Old Notes (or confirmation of book-entry transfers into your
account at the Book-Entry Transfer Facility) and any other documents delivered
or mailed to you by or for holders of the Old Notes to ascertain whether: (i)
the Letters of Transmittal, certificates and any such other documents are duly
executed and properly completed in accordance with instructions set forth
therein and in the Prospectus and that such book-entry confirmations are in due
and proper form and contain the information required to be set forth therein,
and (ii) the Old Notes have otherwise been properly
-2-
tendered. In each case where the Letter of Transmittal or any other document has
been improperly completed or executed or where book-entry confirmations are not
in due and proper form or omit certain information or any of the certificates
for Old Notes are not in proper form for transfer or some other irregularity in
connection with the acceptance of the Exchange Offer exists, you will endeavor
to inform the presenters of the need for fulfillment of all requirements and to
take any other action as may be necessary or advisable to cause such
irregularity to be corrected.
4. With the approval of the President or Chief Financial Officer
of the Company (such approval, if given orally, promptly to be confirmed in
writing) or any other party designated by such officer in writing, you are
authorized to waive any irregularities in connection with any tender of Old
Notes pursuant to the Exchange Offer. You are not otherwise authorized to waive
any such irregularities.
5. Tenders of Old Notes may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer -- Procedures for Tendering" and Old Notes shall be considered
properly tendered to you only when tendered in accordance with the procedures
set forth therein.
Notwithstanding the provisions of this paragraph 5, Old Notes
which the President or Chief Financial Officer of the Company or any other party
designated by any such officer in writing shall approve as having been properly
tendered shall be considered to be properly tendered (such approval, if given
orally, shall be promptly confirmed in writing).
6. You shall promptly advise the Company with respect to any Old
Notes delivered subsequent to the Expiration Date and accept its instructions
with respect to disposition of such Old Notes.
7. You shall accept tenders:
(a) in cases where the Old Notes are registered in two or
more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Old
Notes provided that customary transfer requirements, including any payment of
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Notes where so
indicated and as permitted in the Letter of Transmittal and return any
untendered Old Notes to the holder (or such other person as may be designated in
the Letter of Transmittal) as promptly as practicable after expiration or
termination of the Exchange Offer. A new certificate for the remainder of the
-3-
principal amount of the Old Notes will be sent to the holders of Old Notes
unless otherwise indicated by partial tendering holders of Old Notes.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer , the Company will notify you (such notice if given orally,
promptly to be confirmed in writing) of its acceptance, promptly after the
Expiration Date, of all Old Notes properly tendered and you, on behalf of the
Company, will exchange such Old Notes for New Notes and cause such Old Notes to
be cancelled. Delivery of New Notes, will be made on behalf of the Company by
you at the rate of $1,000 principal amount of New Notes for each $1,000
principal amount of the Old Notes tendered, and, in the case of Old Notes
tendered, promptly after notice (such notice if given orally, promptly to be
confirmed in writing) of acceptance of said Old Notes by the Company; provided,
however, that in all cases, Old Notes tendered pursuant to the Exchange Offer
will be exchanged only after timely receipt by you of certificates for such Old
Notes (or confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility), a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) and an Agent's Message (as defined in the
Prospectus in the section captioned "The Exchange Offer -- Book Entry Transfer")
with any required signature guarantees and any other required document. You
shall issue New Notes only in denominations of $1,000 or any integral multiple
thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable after
the Expiration Date. Subject to the terms and upon the conditions set forth in
the Prospectus and the Letter of Transmittal, Old Notes tendered pursuant to the
Exchange Offer may be withdrawn at any time on or prior to the Expiration Date
in accordance with the terms of the Exchange Offer.
10. The Company shall not be required to exchange any Old Notes
tendered if any of the conditions set forth in the Prospectus are not met.
Notice of any decision by the Company not to exchange any Old Notes tendered
shall be given (such notices if given orally, promptly shall be confirmed in
writing) by the President or Chief Financial Officer of the Company to you.
11. If, pursuant to the Prospectus, the Company does not accept for
exchange all or part of the Old Notes tendered because of an invalid tender, the
occurrence of certain other events set forth in the Prospectus or otherwise, you
shall as soon as practicable after the expiration or termination of the Exchange
Offer return those certificates for unaccepted Old Notes (or effect appropriate
book-entry transfer), together with any related required documents and the
Letters of Transmittal relating thereto that are in your possession, to the
persons who deposited them (or effected such book-entry transfer).
12. All certificates for reissued Old Notes, unaccepted Old Notes
or New Notes (other than those effected by book-entry transfer), shall be
forwarded by (a) first-class mail, postage pre-paid under a blanket surety bond
protecting you and the Company from loss or liability arising out of the
non-receipt or non-delivery of such certificates or (b) by registered mail
insured separately for the replacement value of each of such certificates.
-4-
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any persons to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having
no responsibilities as to the validity, sufficiency, value or genuineness of any
of the Old Notes deposited with you pursuant to the Exchange Offer, and will not
be required to and will make no representation as to the validity, value or
genuineness of the Prospectus;
(b) shall not be obligated to take any legal action hereunder
which might in your reasonable judgment involve any expense or liability, unless
you shall have been furnished with reasonable indemnity;
(c) shall not be liable to the Company for any action taken
or omitted by you, or any action suffered by you to be taken or omitted, without
negligence, misconduct or bad faith on your part, by reason of or as a result of
the administration of your duties hereunder in accordance with the terms and
conditions of this Agreement or by reason of your compliance with the
instructions set forth herein or with any instructions, whether written or oral,
delivered to you pursuant hereto, and may reasonably rely on and shall be
protected in acting in good faith in reliance upon any certificate, instrument,
opinion, notice, letter, facsimile or other document or security delivered to
you and reasonably believed by you to be genuine and to have been signed by the
proper party or parties;
(d) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as to the
truth and accuracy of any information contained therein, which you shall in good
faith reasonably believe to be genuine or to have been signed or represented by
a proper person or persons;
(e) may rely on and shall be protected in acting upon written
notice or oral instructions from the President or Chief Financial Officer of the
Company or any other party designated in writing by any such officer of the
Company;
(f) shall not advise any person tendering Old Notes pursuant
to the Exchange Offer as to whether to tender or refrain from tendering all or
any portion of Old Notes or as to the market value, decline or appreciation in
market value of any Old Notes that may or may not occur as a result of the
Exchange Offer or as to the market value of the New Notes;
(g) may consult with counsel with respect to any questions
relating to your duties and responsibilities, and the written advice or opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by you hereunder in good faith
and in reliance thereon; and
-5-
(h) shall act solely as agent of the Company and shall not
assume any obligation, or relationship of agency or trust for or, with any of
the owners or holders of the Old Notes.
15. You shall send to all holders of Old Notes a copy of the
Prospectus, the Letter of Transmittal, the Notice of Guaranteed Delivery (as
defined in the Prospectus) and such other documents (collectively, the "Exchange
Offer Documents") as may be furnished by the Company to commence the Exchange
Offer and take such other action as may from time to time be requested by the
Company or its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Exchange Offer Documents or such other
forms as may be approved from time to time by the Company, to all holders of Old
Notes and to all persons requesting such documents and to accept and comply with
telephone requests for information relating to the Exchange Offer, provided that
such information shall relate only to the procedures for accepting (or
withdrawing from) the Exchange Offer. The Company will furnish you with copies
of such documents at your request. All other requests for information relating
to the Exchange Offer shall be directed to the Company, Attention: Chief
Financial Officer, at the Company's offices at 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx,
Xxx Xxxxx, XX 00000, telephone number: (000) 000-0000.
16. You shall advise by facsimile transmission, email or by
telephone, and promptly thereafter confirm in writing to the Chief Financial
Officer of the Company with copies to the Company's counsel, and such other
person or persons as the Company may request in writing, daily, and more
frequently during the week immediately preceding the Expiration Date and if
otherwise requested, up to and including the Expiration Date, as to the
aggregate principal amount of Old Notes which have been tendered pursuant to the
Prospectus and the items received by you pursuant to the Exchange Offer and this
Agreement, separately reporting and giving cumulative totals as to items
properly received and items improperly received. In addition, you will also
inform, and cooperate in making available to, the Company or any such other
person or persons as the Company requests in writing from time to time prior to
the Expiration Date of such other information as it or he or she reasonably
requests. Such cooperation shall include, without limitation, the granting by
you to the Company and such person as the Company may request of access to those
persons on your staff who are responsible for receiving tenders, in order to
ensure that immediately prior to the Expiration Date the Company shall have
received information in sufficient detail to enable it to decide whether to
extend the Exchange Offer. You shall prepare a final list of all persons whose
tenders were accepted, the aggregate principal amount of Old Notes tendered, the
aggregate principal amount of Old Notes accepted and the identity of any
participating broker-dealers and the aggregate principal amount of New Notes
delivered to each, and deliver said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall
be stamped by you as to the date and, after the expiration of the Exchange
Offer, the time of receipt thereof shall be preserved by you for a period of
time at least equal to the period of time you customarily preserve other records
pertaining to the transfer of securities, or one year, whichever is longer,
-6-
and thereafter shall be delivered by you to the Company. You shall dispose of
unused Letters of Transmittal and other surplus materials in accordance with
your customary procedures.
18. You hereby expressly waive any lien, encumbrance or right of
set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reasons of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder you shall be
entitled to such compensation and reimbursement of out-of-pocket expenses as
agreed in the attached Schedule A.
20. You hereby acknowledge receipt of the Prospectus, the Letter of
Transmittal (Exhibit A), the Notice of Guaranteed Delivery (Exhibit B)and the
other Exchange Offer Documents (Exhibits C and D) attached hereto and further
acknowledge that you have examined each of them. Any inconsistency between this
Agreement, on the one hand, and the Prospectus, the Letter of Transmittal and
such other forms (as they may be amended from time to time), on the other hand,
shall be resolved in favor of the Prospectus, the Letter of Transmittal and such
other Exchange Offer Documents, except with respect to the duties, liabilities
and indemnification of you as Exchange Agent which shall be controlled by this
Agreement.
21. The Company agrees to indemnify and hold you harmless in your
capacity as Exchange Agent hereunder against any liability, cost or expense,
including reasonable attorneys' fees and expenses, arising out of or in
connection with your appointment as Exchange Agent and the performance of your
duties hereunder, including, without limitation, any act, omission, delay or
refusal made by you in reasonable reliance upon any signature, endorsement,
assignment, certificate, order, request, notice, instruction or other instrument
or document reasonably believed by you to be valid, genuine and sufficient and
in accepting any tender or effecting any transfer of Old Notes reasonably
believed by you in good faith to be authorized, and in delaying or refusing in
good faith to accept any tenders or effect any transfer of Old Notes; provided,
however, that the Company shall not be liable for indemnification or otherwise
for any loss, liability, cost or expense to the extent arising out of your gross
negligence, willful misconduct or bad faith. The Company's obligations under
this paragraph 21 shall survive the termination of this Agreement and the
discharge of your obligation hereunder and any other termination of this
Agreement under any federal or state bankruptcy law.
22. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service. The Company understands that you are required, in certain
instances, to deduct an amount (computed using the rate applicable by law) with
respect to interest paid on the New Notes and proceeds from the sale, exchange,
redemption or retirement of the New Notes from holders who have not supplied
their correct Taxpayer Identification Numbers or required certification. Such
funds will be turned over to the Internal Revenue Service in accordance with
applicable regulations.
-7-
23. You shall notify the Company of the amount of any transfer
taxes payable in respect of the exchange of Old Notes and shall deliver or cause
to be delivered, in a timely manner, to each governmental authority to which any
transfer taxes are payable in respect of the exchange of Old Notes your check in
the amount of all transfer taxes so payable, and the Company shall reimburse you
for the amount of any and all transfer taxes payable in respect of the exchange
of Old Notes; provided, however, that you shall reimburse the Company for
amounts refunded to you in respect of your payment of any such transfer taxes,
at such time as such refund is received by you.
24. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement. Without limitation of the foregoing, the parties hereto
expressly agree that no holder of Old Notes or New Notes shall have any right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
25. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
26. In case any provision of this Agreement 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.
27. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged.
28. Unless otherwise provided herein, all notices, requests and
other communications to any party hereunder shall be in writing (including
facsimile) and shall be given to such party, addressed to it, as its address or
telecopy number set forth below:
If to the Company:
American Casino & Entertainment Properties LLC
American Casino & Entertainment Properties Finance Corp.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
-8-
Attention: Chief Financial Officer
With copies to:
Xxxxx Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
If to the Exchange Agent:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Operations
29. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Paragraphs 18, 19, 21, 22, 24 and 28 shall survive the termination of
this Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any certificates for notes, funds or property (including,
without limitation, Letters of Transmittal and any other documents relating to
the Exchange Offer) then held by you as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the date
hereof.
-9-
Please acknowledge receipt of this Agreement and confirm the arrangements herein
provided by signing and returning the enclosed copy.
AMERICAN CASINO & ENTERTAINMENT
PROPERTIES LLC
By:______________________________
Name: Xxxxxx Xxxxxx
Title: Chief Financial Officer
AMERICAN CASINO & ENTERTAINMENT
PROPERTIES FINANCE CORP.
By:______________________________
Name: Xxxxxx Xxxxxx
Title: Chief Financial Officer
Accepted as the date
first above written:
WILMINGTON TRUST COMPANY,
as exchange agent
By:_________________________
Name:
Title:
-10-
