EXHIBIT 10.1
FIRST AMENDMENT TO
THIRD AMENDED AND RESTATED LOAN AGREEMENT
This First Amendment to Third Amended and Restated Loan Agreement
dated as of August 11, 2004 ("Amendment") is entered into among MGM MIRAGE, a
Delaware corporation ("Borrower"), MGM Grand Detroit, LLC, a Delaware limited
liability company ("Detroit"), as Co-Borrower, and Bank of America, N.A., as
Administrative Agent ("Administrative Agent"), acting with the consent of each
of the Lenders under the Loan Agreement referred to below with reference to the
following facts.
RECITALS
A. Borrower, Detroit, the Lenders and the Administrative Agent are
parties to the Third Amended and Restated Loan Agreement dated as of November
24, 2003 (the "Loan Agreement").
B. Pursuant to the Loan Agreement, the Lenders have heretofore
provided credit facilities in the aggregate principal amount of $2,500,000,000
to the Borrower and Detroit, as a Co-Borrower, consisting of a Revolving
Commitment in the principal amount of $1,500,000,000 and a Term Commitment in
the principal amount of $1,000,000,000.
C. Borrower has requested that the Term Commitment be converted to
an additional incremental Revolving Commitment, so that the Revolving Commitment
(after giving effect to this Amendment) shall be $2,500,000,000.
D. Certain of the Lenders under the Loan Agreement have elected not
to continue as Lenders following the effective date of this Agreement (the
"Exiting Lenders"), and each Exiting Lender has entered into an Exit Agreement
substantially in the form of Annex 1 hereto, pursuant to which it has agreed to
terminate its status as a Lender concurrently with the effectiveness hereof.
E. Certain of the existing Lenders and certain new Lenders
(collectively, the "Increasing Lenders") shall assume the Pro Rata Shares of the
Commitments previously held by the Exiting Lenders concurrently with the
effectiveness hereof, and each Increasing Lender has executed an Assumption
Agreement with the Administrative Agent, the Borrower and Detroit substantially
in the form of Annex 2 hereto, consenting to the terms hereof and setting forth
the Pro Rata Share of that Increasing Lender in the Revolving Commitment after
giving effect to this Amendment.
F. Each other Lender shall execute a Consent hereto, substantially
in the form of Annex 3 hereto, confirming that its Pro Rata Share of the Term
Commitment (if any) shall be converted to a Pro Rata Share of the Revolving
Commitment.
NOW, THEREFORE, the parties hereto hereby agree to amend the Loan
Agreement as follows:
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AGREEMENT
1. Definitions. Capitalized terms used herein but not defined herein are
used with the meanings set forth for those terms in the Loan Agreement.
2. Amendment to Definitions -- Section 1.1.
2.1 Applicable Leverage Ratio. Section 1.1 of the Loan Agreement is
hereby amended so that the definition of "Applicable Leverage Ratio" reads in
full as follows:
"Applicable Leverage Ratio" means, as of each date of determination,
the Leverage Ratio in effect as of the last day of the Fiscal
Quarter ending immediately prior to the first day of the Pricing
Period.
2.2 Applicable Rates. Section 1.1 of the Loan Agreement is hereby
amended so that the definition of "Applicable Rates" reads in full as follows:
"Applicable Rates" means, as of any date of determination, the
following percentages per annum, based upon the Pricing Level on
that date:
STANDBY
LIBOR BASE RATE UNUSED FEE LETTER OF
PRICING LEVEL MARGIN MARGIN RATE CREDIT FEE
------------- ------ --------- ---------- ----------
I 0.750% 0.000% 0.150% 0.750%
II 1.000% 0.000% 0.200% 1.000%
III 1.250% 0.250% 0.200% 1.250%
IV 1.375% 0.375% 0.250% 1.375%
V 1.500% 0.500% 0.250% 1.500%
2.3 Average Quarterly Funded Debt. Section 1.1 of the Loan Agreement
is hereby amended so that the definition of "Average Quarterly Funded Debt" is
deleted.
2.4 Cash Interest Charges. Section 1.1 of the Loan Agreement is
hereby amended so the definition of "Cash Interest Charges" reads in full as
follows:
"Cash Interest Charges" means, for any period, that portion of
Interest Charges of Borrower and its Restricted Subsidiaries which
are paid or currently payable in Cash during that period excluding
Interest Charges in respect of:
(i) intercompany accounts; and
(ii) any other Indebtedness of Borrower or its Restricted
Subsidiaries for borrowed money (including debt securities issued by
Borrower or any of its Restricted Subsidiaries) to the extent that
(A) the proceeds of such Indebtedness are held by either the trustee
or other representative for the holders of such Indebtedness or a
third party escrow agent pending satisfaction or waiver of the
conditions for the release of such proceeds to the Borrower or its
Restricted Subsidiaries or
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to a third party, and (B) such trustee, representative or escrow
agent also holds the amount of any Interest Charges which would
otherwise be payable in Cash during that period in respect of such
Indebtedness;
provided, in each case, that if any Material Transaction occurs
during that period, Cash Interest Charges shall be adjusted on a pro
forma basis (a) in the case of any Material Transaction which is a
Disposition, to exclude Interest Charges associated with Funded Debt
in an amount equal to the consideration received by Borrower and its
Restricted Subsidiaries in the form of cash and Cash Equivalents in
connection with such Disposition, and (b) in the case of any
Material Transaction which is an Acquisition, to increase Interest
Charges by the amount of Interest Charges which would be associated
with Funded Debt in an amount equal to the consideration paid by
Borrower and its Restricted Subsidiaries in the form of cash and
Cash Equivalents in connection with such Acquisition (in each case,
for that portion of the period occurring prior to the receipt of
such consideration, and at an interest rate which is equal, as of
the time of calculation, to the rate of interest associated with
LIBOR Loans under this Agreement).
2.5 Funded Debt. Section 1.1 of the Loan Agreement is hereby amended
so that clause (a) of the definition of "Funded Debt" reads in full as follows:
(a) all principal Indebtedness of Borrower and its Restricted
Subsidiaries for borrowed money (including debt securities issued by
Borrower or any of its Restricted Subsidiaries) on that date (other
than any such Indebtedness to the extent (x) it has been legally or
contractually defeased, (y) it is the subject of a deposit in Cash
or Cash Equivalents for the purpose of defeasing the same in
accordance with its terms or (z) the proceeds thereof are held by
the trustee or other representative for the holders of such
Indebtedness or any third party escrow agent pending satisfaction or
waiver of the conditions for the release of such proceeds to the
Borrower or its Restricted Subsidiaries or to a third party), plus
2.6 Guarantors. Section 1.1 of the Loan Agreement is hereby amended
so that the definition of "Guarantors" reads in full as follows:
"Guarantors" means, collectively, each Restricted Subsidiary of
Borrower which exists as of the Closing Date, and each other
Restricted Subsidiary of Borrower which hereafter becomes a
Guarantor pursuant to Section 5.8, provided that any Guarantor which
is sold or otherwise transferred in a Disposition which is not
prohibited hereby may be released from the Guaranty in accordance
with Section 11.2(d)(iii).
2.7 Leverage Ratio. Section 1.1 of the Loan Agreement is hereby
amended so that the definition of "Leverage Ratio" reads in full as follows:
"Leverage Ratio" means, as of the last day of each Fiscal Quarter,
the ratio of (a) Funded Debt as of that date to (b) Cash Flow for
the four Fiscal Quarter period then ended.
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2.8 Other Available EBITDA. Section 1.1 of the Loan Agreement is
hereby amended so that the definition of "Other Available EBITDA" reads in full
as follows:
"Other Available EBITDA" means, for any fiscal period, that portion
of the EBITDA of any Unrestricted Subsidiaries for that fiscal
period to the extent that the same may be distributed in Cash to
Borrower and its Restricted Subsidiaries during that fiscal period
in accordance with applicable Law and subject to any Contractual
Obligations (including credit documents) which are binding upon such
Unrestricted Subsidiaries or their respective Properties (whether or
not so distributed).
2.9 Pricing Period. Section 1.1 of the Loan Agreement is hereby
amended so that the definition of "Pricing Period" reads in full as follows:
"Pricing Period" means each period commencing on the date of
delivery of each Pricing Certificate and ending on the date
immediately preceding the delivery of the next Pricing Certificate.
2.10 Principal Resort Casino Properties. Section 1.1 of the Loan
Agreement is hereby amended so that the definition of "Principal Resort Casino
Properties" is deleted.
2.11 Revolving Commitment. Section 1.1 of the Loan Agreement is
hereby amended so that the definition of "Revolving Commitment" reads in full as
follows:
"Revolving Commitment" means, subject to any decrease in the amount
thereof pursuant to Sections 2.9, 2.10 or 11.26, $2,500,000,000.
3. Deletion of Section 6.2 -- Disposition of Property. Section 6.2 of the
Loan Agreement is deleted and replaced to read in full as follows: "6.2
[Intentionally Omitted]."
4. Amendment to Section 11.2(d) -- Amendments; Consents. Section 11.2(d)
of the Loan Agreement is hereby amended to read in full as follows:
(d) To release the Guaranty, the Collateral Documents or any other
material portion of any collateral for the Obligations, or to permit
the Collateral Agent to take any such action (except in accordance
with the provisions of the Intercreditor Agreement), provided that
if no Default or Event of Default exists, the Administrative Agent
may without the consent of any Lender (and shall at the request of
Borrower), (i) release its Lien in any personal property financed or
leased by Borrower or its Subsidiaries and granted a Lien in
accordance with Section 6.6(e), (ii) release its Lien in any
collateral as otherwise may be expressly provided for in any Loan
Document, (iii) release its Lien in the equity securities of, and
all Guaranty Obligations executed by, any Subsidiary which is the
subject of a Disposition which is not prohibited hereby, (iv)
subordinate its Lien with respect to any Property which is the
subject of a Disposition which is not prohibited hereby, (v) release
its Lien in any Property which is the subject of a Distribution not
prohibited by this
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Agreement, (vi) release all of the Liens under the Loan Documents in
a Collateral Release under Section 2.12, (vii) authorize the
Collateral Agent to make any amendments to the deed of trust
covering the Theme Park Property and/or subordinate the lien of such
deed of trust to any maps subdividing the Theme Park Property so as
to give effect to any subdivision of the Theme Park Property
(whether concurrently with or prior to the Disposition thereof) by
Borrower, and (viii) send notice to the Collateral Agent and the
Creditor Representatives requesting the release of any Theme Park
Property concurrently with the sale or other Disposition thereof;
or, in each case to the extent such Lien or Guaranty Obligations are
held by the Collateral Agent, shall to the extent permitted by the
Intercreditor Agreement direct the Collateral Agent to take such
actions;
5. Revised Compliance Certificate -- Exhibit G. The form of Compliance
Certificate attached as Exhibit G to the Loan Agreement is hereby amended and
replaced in its entirety by the form of Compliance Certificate attached hereto
as Annex 4.
6. Revised Pricing Certificate -- Exhibit H. The form of Pricing
Certificate attached as Exhibit H to the Loan Agreement is hereby amended and
replaced in its entirety by the form of Pricing Certificate attached hereto as
Annex 5.
7. Conversion of Term Loans. On the date of the effectiveness of this
Amendment the following transactions shall occur:
(a) the Term Commitment shall be converted into an addition to the
Revolving Commitment, so that the Revolving Commitment shall be increased
from $1,500,000,000 to $2,500,000,000 and the former Term Commitment shall
be terminated;
(b) the Borrower shall be deemed to have requested Loans under the
Revolving Commitment (as increased pursuant to this Amendment by the
conversion of the Term Commitment) in an amount sufficient to repay the
then outstanding Term Loans and Revolving Loans;
(c) each Lender will fund such new Revolving Loans in accordance
with their Pro Rata Shares (as adjusted in connection with this
Amendment);
(d) the risk participations of the Lenders in any outstanding Swing
Line Loans and Letters of Credit shall be deemed to give effect to the
adjusted Pro Rata Shares of the Lenders in the Revolving Commitment;
(e) all accrued and unpaid interest in respect of the Revolving
Loans and the Term Loans, any breakage fees due pursuant to Section 3.8 of
the Loan Agreement, all accrued and unpaid Unused Fees, and all accrued
and unpaid Letter of Credit Fees, shall be paid in full by the Borrower;
and
(f) for the avoidance of doubt, any Competitive Advances which then
are outstanding under the Loan Agreement shall remain outstanding, and
shall not be affected by this Amendment.
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8. Conditions Precedent. The effectiveness of this Amendment shall be
conditioned upon the following:
(a) The Administrative Agent shall have received an original of
this Amendment, duly executed by the Borrower, Detroit, and
the Administrative Agent;
(b) The Administrative Agent shall have received, from each
Exiting Lender, an Exit Agreement substantially in the form of
Annex 1;
(c) The Administrative Agent shall have received, from each
Increasing Lender, an Assumption Agreement substantially in
the form of Annex 2, and such Assumption Agreement shall have
been countersigned by the Borrower and Detroit;
(d) The Administrative Agent shall have received written consents
to the execution, delivery and performance of this Amendment
from each other Lender, substantially in the form of Annex 3;
(e) The Administrative Agent shall have received new Revolving
Notes for each Lender reflecting the Pro Rata Share of each
Lender (giving effect to this Amendment); and
(f) Each Guarantor shall have executed a Consent and Reaffirmation
of Guaranties in the form of Annex 6 to this Amendment.
9. Representation and Warranty. Each of Borrower and Detroit represents
and warrants to the Administrative Agent and the Lenders that no Default or
Event of Default has occurred and remains continuing, and that each of the
representations and warranties of Borrower and Detroit set forth in the Loan
Agreement is true and correct as of the date hereof (other than those which
relate by their terms solely to another date).
10. Confirmation. In all other respects, the terms of the Loan Agreement
and the other Loan Documents are hereby confirmed.
11. Counterparts. This Amendment may be executed in any number of
counterparts and any party hereto may execute any counterpart, each of which
when executed and delivered will be deemed to be an original and all of which
counterparts of this Amendment when taken together will be deemed to be but one
and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
MGM MIRAGE
By: /s/ XXXXX X. XXXXXX
----------------------------------------------
Xxxxx X. Xxxxxx, Vice President -- Assistant
General Counsel and Assistant Secretary
MGM GRAND DETROIT, LLC
By: MGM Grand Detroit, Inc.,
Managing Member
By: /s/ XXXXX X. XXXXXX
--------------------------------------
Xxxxx X. Xxxxxx, Assistant Secretary
BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ XXXXX X. OXFORD
-------------------------------------------
Title: Vice President
-------------------------------------------
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Annex 1
Form of Exit Agreement
[Executed only by lenders which will not continue in the credit]
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Annex 2
Form of Assumption Agreement
[Executed only by new lenders and existing lenders which increase
their aggregate exposure]
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Annex 3
Form of Lender Consent
CONSENT OF LENDER
This Consent of Lender is delivered with reference to the Third
Amended and Restated Loan Agreement dated as of November 24, 2003 (the " Loan
Agreement") among MGM MIRAGE, a Delaware corporation formerly known as MGM
Grand, Inc., as Borrower, MGM Grand Detroit, LLC, a Delaware limited liability
company, as Co-Borrower, the Lenders named therein, and Bank of America, N.A.,
as Administrative Agent. Capitalized terms used but not defined in this Consent
of Lender have the meanings given to them in the Loan Agreement.
The undersigned Lender hereby consents to the execution, delivery
and performance of the proposed First Amendment to Third Amended and Restated
Loan Agreement (the "Amendment") by the Administrative Agent on behalf of the
Lenders, substantially in the form presented to the undersigned as a draft.
It is acknowledged that, pursuant to the Amendment, the former Term
Commitment will be converted to an additional component of the Revolving
Commitment, which will thereby be increased to $2,500,000,000. The former Pro
Rata Share of the Term Commitment held by the undersigned Lender will be
converted to an additional Pro Rata Share of the Revolving Commitment to be held
by the undersigned Lender.
------------------------------------------
[Typed/Printed Name of Lender]
By:
--------------------------------------
Title:
------------------------------------
Date: , 2004
------------
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Annex 4
Exhibit G - Compliance Certificate
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Annex 5
Exhibit H - Pricing Certificate
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Annex 6
CONSENT AND REAFFIRMATION OF GUARANTIES
This Consent and Reaffirmation of Guaranties is delivered with
reference to the Third Amended and Restated Loan Agreement dated as of November
24, 2003 (the " Loan Agreement") among MGM MIRAGE, a Delaware corporation
formerly known as MGM Grand, Inc., as Borrower, MGM Grand Detroit, LLC, a
Delaware limited liability company, as Co-Borrower, the Lenders named therein,
and Bank of America, N.A., as Administrative Agent. Capitalized terms used but
not defined in this Consent and Reaffirmation of Guaranty have the meanings
given to them in the Loan Agreement.
Reference is also hereby made to the Amended and Restated Subsidiary
Guaranty dated as of November 24, 2003 (the "Subsidiary Guaranty"), executed by
the Restricted Subsidiaries party thereto (the "Guarantors"), and to the various
guarantees issued by Restricted Subsidiaries in favor of the Collateral Agent
pursuant to the Collateral Agent and Intercreditor Agreement referred to in the
Loan Agreement (the "Collateral Agent Guarantees").
Each of the Guarantors hereby consents to the execution, delivery
and performance of the proposed First Amendment to Third Amended and Restated
Loan Agreement (the "Amendment") substantially in the form presented to the
undersigned as a draft.
Each of the undersigned represents and warrants to the
Administrative Agent and the Lenders that the Subsidiary Guaranty and the
Collateral Agent Guarantees remain in full force and effect in accordance with
their respective terms, apply to all of the Obligations (as amended in
connection with the Amendment) and each of the undersigned Guarantors hereby
ratifies and reaffirms each such guaranty to which it is a party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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This Consent and Reaffirmation of Guaranties is dated as of the date
of the Amendment.
AC HOLDING CORP., a Nevada corporation
AC HOLDING CORP. II, a Nevada corporation
BELLAGIO, LLC, a Nevada limited liability
company
BELLAGIO II, LLC, a Nevada limited liability
company
BOARDWALK CASINO, INC., a Nevada corporation
COUNTRY STAR LAS VEGAS, LLC, a Nevada
limited liability company
DESTRON, INC., a Nevada corporation
GRAND LAUNDRY, INC., a Nevada corporation
LV CONCRETE CORP., a Nevada corporation
METROPOLITAN MARKETING, LLC, a Nevada
limited liability company
MGM MIRAGE AVIATION CORP., a Nevada
corporation (formerly known as GOLDEN NUGGET
AVIATION CORP.)
MGM MIRAGE CORPORATE SERVICES, a Nevada
corporation (formerly known as GOLDEN NUGGET
FINANCE CORP.)
MGM GRAND HOTEL, LLC, a Nevada limited
liability company
MGM GRAND NEW YORK, LLC, a Nevada limited
liability company
MGM GRAND RESORTS, LLC, a Nevada limited
liability company
MGM MIRAGE ADVERTISING, INC., a Nevada
corporation
MGM MIRAGE DESIGN GROUP, a Nevada
corporation
MGM MIRAGE DEVELOPMENT, INC., a Nevada
corporation
MGM MIRAGE ENTERTAINMENT AND SPORTS, a
Nevada corporation
MGM MIRAGE INTERNATIONAL, a Nevada
corporation
MGM MIRAGE MANUFACTURING CORP., a Nevada
corporation (formerly known as GOLDEN NUGGET
MANUFACTURING CORP.)
MGM MIRAGE OPERATIONS, INC., a Nevada
corporation
MGM MIRAGE RETAIL, a Nevada corporation
[Signatories continued on next page]
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[Signatories continued from previous page]
MH, INC., a Nevada corporation
M.I.R. TRAVEL, a Nevada corporation
MIRAGE LAUNDRY SERVICES CORP., a Nevada
corporation
MIRAGE LEASING CORP., a Nevada corporation
MIRAGE RESORTS, INCORPORATED, a Nevada
corporation
MMNY LAND COMPANY, INC., a New York
corporation
MRGS CORP., a Nevada corporation
NEW PRMA LAS VEGAS, INC., a Nevada
corporation
NEW YORK - NEW YORK HOTEL & CASINO, LLC, a
Nevada limited liability company
PRMA LAND DEVELOPMENT COMPANY, a Nevada
corporation
PRMA, LLC, a Nevada limited liability
company
RESTAURANT VENTURES OF NEVADA, INC., a
Nevada corporation
THE XXXXX XXXX COMPANIES, a Nevada
corporation
THE MIRAGE CASINO-HOTEL, a Nevada
corporation
THE PRIMADONNA COMPANY, LLC, a Nevada
limited liability company
TREASURE ISLAND CORP., a Nevada corporation
VIDIAD, a Nevada corporation
BEAU RIVAGE DISTRIBUTION CORP., a
Mississippi corporation
BEAU RIVAGE RESORTS, INC., a Mississippi
corporation
BUNGALOW, INC., a Mississippi corporation
EGARIM, INC., an Alabama corporation
MAC, CORP., a New Jersey corporation
MGM GRAND ATLANTIC CITY, INC., a New Jersey
corporation
MGM GRAND CONDOMINIUMS, LLC, a Nevada
limited liability company
MGM GRAND DETROIT, INC., a Delaware
corporation
By: /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx, Assistant Secretary of each
of the foregoing
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