AMENDMENT NO. 2 AND WAIVER
Exhibit 10
AMENDMENT NO. 2 AND WAIVER
This AMENDMENT NO. 2 AND WAIVER, dated as of March 16, 2009 (this “Amendment”), to the
Loan Agreement (as defined below), among MGM MIRAGE, a Delaware corporation (“Borrower”),
MGM Grand Detroit, LLC, a Delaware limited liability company (“Detroit”), the Lenders and
Bank of America, N.A., as administrative agent for the lenders (the “Administrative
Agent”).
W I T N E S S E T H:
WHEREAS, Borrower, Detroit, as initial Co-Borrower, the Lenders named in the signature pages
thereto, Banc of America Securities LLC and The Royal Bank of Scotland PLC, as Joint Lead
Arrangers, Banc of America Securities LLC, The Royal Bank of Scotland PLC, X.X. Xxxxxx Securities
Inc., Citibank North America, Inc. and Deutsche Bank Securities, Inc., as Joint Book Managers, The
Royal Bank of Scotland PLC, as Syndication Agent, Barclays Bank PLC, BNP Paribas, Citigroup USA
Inc., Commerzbank AG, Deutsche Bank Trust Company Americas, JPMorgan Chase Bank, N.A., Sumitomo
Mitsui Banking Corporation, UBS Securities LLC and Wachovia Bank, National Association, as
Co-Documentation Agents, Bank of Scotland, Xxxxxxx Xxxxx Bank USA and Xxxxxx Xxxxxxx Bank, as
Senior Managing Agents, Societe Generale and U.S. Bank National Association, as Managing Agents,
and the Administrative Agent are parties to the Fifth Amended and Restated Loan Agreement, dated as
of October 3, 2006 (as amended, supplemented, amended and restated or otherwise modified from time
to time, the “Loan Agreement”);
WHEREAS, Borrower, Detroit and the Administrative Agent, on behalf of the Lenders, are parties
to that certain Amendment No. 1 to the Loan Agreement, dated as of September 30, 2008;
WHEREAS, Borrower has informed the Administrative Agent that it expects to receive, on or
about March 17, 2009 and in connection with its Form 10-K for the fiscal year ended December 31,
2008, a report from Borrower’s public accounting firm on Borrower’s consolidated financial
statements for the year ended December 31, 2008, containing an explanatory paragraph with respect
to Borrower’s ability to continue as a going concern (the “Specified Report”). In such
event, the Administrative Agent and the Requisite Lenders are likely to assert that delivery of
such Specified Report will be in breach of Section 7.1(c) of the Loan Agreement (the “Specified
Alleged Breach”);
WHEREAS, Borrower believes that the Specified Report is in compliance with the requirements
set forth in Section 7.1(c) of the Loan Agreement and disputes any assertion by any Lender that the
Specified Alleged Breach (i) constitutes a breach of any covenant set forth in the Loan Agreement,
including, without limitation, Section 7.1(c) thereof or (ii) is a Default or Event of Default
under the Loan Agreement; and
WHEREAS, the Lenders that have consented to this Amendment constitute the Requisite Lenders
under the Loan Agreement;
NOW, THEREFORE, the parties hereto hereby covenant and agree as follows:
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ARTICLE I
DEFINITIONS
DEFINITIONS
SECTION 1.1. Certain Definitions. The following terms when used in this Amendment
shall have the following meanings (such meanings to be equally applicable to the singular and
plural forms thereof):
“Administrative Agent” is defined in the preamble.
“Amendment” is defined in the preamble.
“Borrower” is defined in the preamble.
“Detroit” is defined in the preamble.
“Loan Agreement” is defined in the first recital.
“Second Amendment Effective Date” is defined in Article IV.
“Specified Alleged Breach” is defined in the third recital.
SECTION 1.2. Other Definitions. Capitalized terms for which meanings are provided
in the Loan Agreement (as amended hereby) are, unless otherwise defined herein, used in this
Amendment with such meanings.
ARTICLE II
AMENDMENTS TO LOAN AGREEMENT
AMENDMENTS TO LOAN AGREEMENT
Upon the occurrence of the Second Amendment Effective Date, the provisions of the Loan
Agreement referred to below are hereby amended in accordance with this Article II.
SECTION 2.1. Section 1.1 of the Loan Agreement is hereby amended by inserting the following
definitions in the appropriate alphabetical order:
“‘CityCenter Credit Agreement’ means that certain Credit Agreement, dated as of
October 3, 2008, among CityCenter Holdings, as the Borrower, the Lenders from time to time
party thereto, The Royal Bank of Scotland PLC and UBS Securities LLC, as Co-Syndication
Agents, BNP Paribas and Sumitomo Mitsui Banking Corporation, as Co-Documentation Agents and
Bank of America, N.A. as Administrative Agent, as amended, supplemented, amended and
restated or otherwise modified from time to time.”
“‘CityCenter Holdings’ means CityCenter Holdings, LLC, a Delaware limited
liability company.”
“‘Equity Interests’ means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such Person, all of the
warrants, options or other rights for the purchase or acquisition from such Person of shares
of capital stock of (or other ownership or profit interests in) such Person, all of the
securities
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convertible into or exchangeable for shares of capital stock of (or other ownership or
profit interests in) such Person or warrants, rights or options for the purchase or
acquisition from such Person of such shares (or such other interests), and all of the other
ownership or profit interests in such Person (including partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are outstanding on any date of determination.”
“‘FTI’ means FTI Consulting, Inc., in its capacity as financial advisor and
consultant to Xxxxx Xxxxx.”
“‘Loan Parties’ means Borrower, Detroit and each Guarantor.”
“‘Xxxxx Xxxxx’ means Xxxxx Xxxxx, LLP, in its capacity as counsel to the
Administrative Agent.”
“‘Restricted Payment’ means any dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock or other Equity
Interest of any Person or any of its Subsidiaries, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination
of any such capital stock or other Equity Interest, or on account of any return of capital
to any Person’s stockholders, partners or members (or the equivalent of any thereof), or any
option, warrant or other right to acquire any such dividend or other distribution or
payment.”
“‘Second Amendment’ means that certain Amendment No. 2 and Waiver to this
Agreement, dated as of March 16, 2009, among the Borrower, Detroit, the Lenders and the
Administrative Agent.”
“‘Second Amendment Effective Date’ has the meaning specified in Article
IV of the Second Amendment.”
SECTION 2.2. The following definitions set forth in Section 1.1 of the Loan Agreement are
hereby amended and restated in their entirety as follows:
“‘Applicable Rates’ means, as of any date of determination, the following
percentages per annum, based upon the Pricing Level on that date:
LIBOR | Base Rate | Unused Fee | Standby Letter | |||||
Pricing Level | Margin | Margin | Rate | of Credit Fee | ||||
I | 1.375% | 1.000% | 0.100% | 1.375% | ||||
II | 1.625% | 1.000% | 0.150% | 1.625% | ||||
III | 1.875% | 1.000% | 0.150% | 1.875% | ||||
IV | 2.000% | 1.000% | 0.200% | 2.000% | ||||
V | 2.250% | 1.250% | 0.200% | 2.250% | ||||
VI | 2.500% | 1.500% | 0.250% | 2.500% | ||||
VII | 2.750% | 1.750% | 0.250% | 2.750% | ||||
VIII | 3.000% | 2.000% | 0.300% | 3.000%” |
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“‘Disposition’ or ‘Dispose’ means the sale, transfer or other
disposition, in one transaction or any series of related transactions, of any asset.”
“‘Investment’ means, when used in connection with any Person, any investment by
or of that Person, whether by means of (a) purchase or other acquisition of stock or other
securities of any other Person, (b) a loan, advance creating a debt, capital contribution,
guaranty or other debt or equity participation or interest in any other Person or (c) the
purchase or other acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit, in each case including any partnership and
joint venture interests of such Person. The amount of any Investment shall be the amount
actually invested (minus any return of capital with respect to such Investment which has
actually been received in Cash or Cash Equivalents or has been converted into Cash or Cash
Equivalents), without adjustment for subsequent increases or decreases in the value of such
Investment.”
“‘LIBOR’ means, for any Interest Period with respect to a LIBOR Loan, the rate
per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by
Reuters (or other commercially available source providing quotations of BBA LIBOR as
designated by the Administrative Agent from time to time) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period, for Dollar
deposits (for delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period. If such rate is not available at such time for any reason, then
“LIBOR” for such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery on the first
day of such Interest Period in same day funds in the approximate amount of the LIBOR Loan
being made, continued or converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America’s London Branch to major banks in the
London interbank eurodollar market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest Period; provided,
that LIBOR shall in no event be less than 2.00% per annum at any time.”
SECTION 2.3. The definition of the term “Base Rate” in Section 1.1 of the Loan Agreement is
hereby amended by adding the following proviso to the end of the first sentence thereof:
“; provided, that the Base Rate shall in no event be less than 4.00% per annum at any
time.”
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SECTION 2.4. The first sentence of Section 2.12(b) of the Loan Agreement is hereby amended
by inserting the phrase “the prior approval of the Requisite Lenders and” before the words “the
receipt by the Administrative Agent” in the second line thereof.
SECTION 2.5. Section 5.5 of the Loan Agreement is hereby amended by replacing the references
therein to “the Administrative Agent or any Lender” with “the Administrative Agent, any Lender,
FTI or any other advisor of the Administrative Agent or any Lender”.
SECTION 2.6. Article 6 of the Loan Agreement is hereby amended as follows:
SECTION 2.6.1. Section 6.1 of the Loan Agreement is hereby amended and restated in its
entirety as follows:
“6.1 Mergers and Other Fundamental Changes. Merge, dissolve, liquidate, or
consolidate with or into another Person, except that, subject to Section 6.2 and so
long as no Default exists or would result therefrom:
(a) any Restricted Subsidiary may merge with (i) Borrower, provided
that Borrower shall be the continuing or surviving Person, or (ii) any one or more
other Restricted Subsidiaries; and
(b) mergers and consolidations between Restricted Subsidiaries solely to effect
a mere change in the state or form of organization of Borrower or any Restricted
Subsidiary;
SECTION 2.6.2. Section 6.4(i) of the Loan Agreement is hereby amended and restated in its
entirety to read as follows:
“(i) Liens not otherwise permitted by the foregoing clauses of this Section
encumbering assets of Borrower and its Restricted Subsidiaries having an aggregate fair
market value, as of the date of the incurrence of such Liens, which is not in excess of 5%
of Consolidated Net Tangible Assets determined as of the then most recently ended Fiscal
Quarter; provided, however, that after the Second Amendment Effective Date,
no new Liens not otherwise permitted by the foregoing clauses of this Section encumbering
assets of the Borrower and its Subsidiaries shall be granted to secure Indebtedness for
borrowed money, Capital Lease Obligations in an aggregate amount exceeding $5,000,000, Swap
Contracts, letters of credit or Guaranties of any such Indebtedness.”
SECTION 2.6.3. Section 6.7 of the Loan Agreement is hereby deleted in its entirety.
SECTION 2.6.4. The following Sections 6.7, 6.8, 6.9, 6.10, 6.11, 6.12 and 6.13 are hereby
added to the Loan Agreement in the appropriate numerical order:
“6.7 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness,
except:
(a) obligations (contingent or otherwise) existing or arising under any Swap
Agreement, provided that (i) such obligations are (or were) entered into by
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such Person in the ordinary course of business for the purpose of directly
mitigating risks associated with fluctuations in interest rates or foreign exchange
rates and (ii) such Swap Agreement does not contain any provision exonerating the
non-defaulting party from its obligation to make payments on outstanding
transactions to the defaulting party;
(b) Indebtedness of Borrower or a Restricted Subsidiary owed to Borrower or a
Restricted Subsidiary, which Indebtedness shall be on subordination terms acceptable
to the Administrative Agent (which shall be agreed prior to April 17, 2009) and be
otherwise permitted under the provisions of Section 6.7;
(c) Indebtedness under the Loan Documents;
(d) Indebtedness outstanding on the Second Amendment Effective Date hereof and,
to the extent such Indebtedness is in excess of $25,000,000, listed on Schedule
6.7;
(e) Guaranty Obligations of Borrower or any Subsidiary in respect of
Indebtedness otherwise permitted hereunder of Borrower or such Subsidiary;
(f) Capital Lease Obligations and Indebtedness secured by purchase money Liens
within the limitations set forth in Section 6.4(e). and
(g) (i) renewals, extensions, refinancings and refundings of Indebtedness
permitted by clauses (d) and (f) in an aggregate principal amount not to exceed
$25,000,000 and (ii) extensions of letters of credit outstanding on the Second
Amendment Effective Date.
6.8 Investments. Make or hold any Investments, except:
(a) Investments held by Borrower and its Subsidiaries in the form of Cash
Equivalents;
(b) advances to officers, directors and employees of Borrower and Subsidiaries
in the ordinary course of business for travel, entertainment, relocation and
analogous ordinary business purposes;
(c) (i) Investments by Borrower and its Subsidiaries in their respective
Subsidiaries outstanding on the Second Amendment Effective Date; (ii) additional
Investments by Borrower and its Subsidiaries in Loan Parties; and (iii) Investments
in Indebtedness permitted by Section 6.7(b); provided, that
Investments in the Insurance Subsidiary shall not exceed $150,000,000 in the
aggregate;
(d) Investments consisting of extensions of credit in the nature of accounts
receivable or notes receivable arising from the grant of trade credit in the
ordinary course of business, and Investments received in satisfaction or partial
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satisfaction thereof from financially troubled account debtors to the extent
reasonably necessary in order to prevent or limit loss;
(e) Guaranty Obligations permitted by Section 6.7;
(f) Investments existing on the date hereof (other than those referred to in
Section 6.8(c)(i)) and set forth on Schedule 6.8;
(g) Investments by Borrower in Swap Agreements permitted under Section
6.7(a);
(h) the Borrower may make Investments into CityCenter Holdings as follows: (a)
in amount not to exceed the lesser of the amount requested by CityCenter Holdings to
each of Borrower and Dubai World (as such term is defined in the CityCenter Credit
Agreement) with respect to such Investment and $110,000,000 within seven (7)
business days before or after Xxxxx 00, 0000, (x) in an amount not to exceed the
lesser of the amount requested by CityCenter Holdings to each of Borrower and Dubai
World with respect to such Investment and $38,500,000 within seven (7) business days
before or after April 8, 2009, (c) in an amount not to exceed the lesser of the
amount requested by CityCenter Holdings to each of Borrower and Dubai World with
respect to such Investment and $126,500,000 within seven (7) business days before or
after April 24, 2009, and (d) in an amount not to exceed the lesser of the amount
requested by CityCenter Holdings to each of Borrower and Dubai World with respect to
such Investment and $38,500,000 within seven (7) business days before or after May
6, 2009, so long as, in the case of each such Investment, (i) immediately before and
immediately after giving effect thereto, no Default or Event of Default shall have
occurred and be continuing, including that the waiver, if any, remains in effect
pursuant to Article III of the Second Amendment, (ii) immediately before and
immediately after giving effect thereto, no acceleration of the obligations under
the CityCenter Credit Agreement shall have occurred and (iii) simultaneously with
each such Investment by the Borrower, Dubai World (as such term is defined in the
CityCenter Credit Agreement) shall have made a corresponding Investment in an equal
amount into CityCenter Holdings; provided, however, that in the event that Borrower
is prohibited by virtue of the failure to satisfy any of the conditions in any of
the foregoing clauses (i)-(iii) with respect to any such Investment, Borrower
nonetheless shall be permitted to invest up to a maximum of $20,000,000 solely and
to the extent reasonably necessary to ensure public health, safety, and welfare or
regulatory compliance in connection with CityCenter Holdings; provided, further that
if Borrower shall invest any funds pursuant to the preceding proviso and the
condition in the foregoing clauses (i)-(iii) that was previously unsatisfied is
subsequently satisfied, such invested amount shall reduce, dollar for dollar, any
subsequent payments pursuant to this Section 6.8(h) subsections (a)
through (d) hereof.
(i) other Investments by Borrower and its Subsidiaries not otherwise permitted
under this Section 6.8 in an aggregate amount not to exceed
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$25,000,000; provided that, with respect to each Investment made
pursuant to this Section 6.8(i):
(i) such Investment shall not include or result in any contingent
liabilities that could reasonably be expected to be material to the
business, financial condition, operations or prospects of Borrower and its
Subsidiaries, taken as a whole (as determined in good faith by the board of
directors (or persons performing similar functions) of Borrower or such
Subsidiary if the board of directors is otherwise approving such transaction
and, in each other case, by a Responsible Official); and
(ii) such Investment shall be in property that is part of, or in lines
of business that are, substantially the same lines of business as one or
more of the principal businesses of Borrower and its Subsidiaries in the
ordinary course;
and provided further, that no Investment pursuant to this Section
6.8(i) shall be made into CityCenter without the written consent of the Requisite
Lenders.
6.9 Dispositions. Make any Disposition or enter into any agreement to make any
Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or
hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment to the extent that (i) such property is exchanged
for credit against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are applied to the purchase price of such replacement
property, in each case within 180 days of receiving the proceeds of such
Disposition;
(d) Dispositions of property by any Restricted Subsidiary to Borrower or to a
Restricted Subsidiary;
(e) Dispositions permitted pursuant to Section 6.1; and
(f) Dispositions in the ordinary course of their business by the Borrower and
its Subsidiaries of airplanes and various other non-core assets so long as the
aggregate proceeds therefrom do not exceed $100,000,000;
provided, however, that any Disposition pursuant to clauses (c), (e)
and (f) of this Section 6.9 for which the aggregate proceeds therefrom shall be in
an amount in excess of $10,000,000 shall be, in the good faith view of the board of
directors of Borrower or the governing body of the Restricted Subsidiary
effectuating such Disposition, for fair market value.
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(g) the Borrower may complete the sale of the property known as the Treasure
Island Hotel and Casino on the terms described in that certain Purchase Agreement
dated as of December 13, 2008 (as amended, supplemented or otherwise modified as of
the Second Amendment Effective Date) among the Mirage Casino-Hotel, Treasure Island
Corp. and Xxxxxx Acquisition, LLC, and subject to the occurrence of the Second
Amendment Effective Date, the Administrative Agent shall execute a release of the
Subsidiary that is the subject of such transaction from its obligations under the
Guaranty substantially in the form of Exhibit C hereto.
6.10 Restricted Payments. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so, or issue or
sell any Equity Interests or accept any capital contributions, except that, so long as no
Default shall have occurred and be continuing at the time of any action described below or
would result therefrom:
(a) each Subsidiary may make Restricted Payments to Borrower, any of Borrower’s
Subsidiaries that are Guarantors and any other Person that owns a direct Equity
Interest in such Subsidiary, ratably according to their respective holdings of the
type of Equity Interest in respect of which such Restricted Payment is being made;
(b) Borrower and each Subsidiary may declare and make dividend payments or
other distributions payable solely in the common stock or other common Equity
Interests of such Person; and
(c) the Subsidiaries of Borrower may declare and pay cash dividends to
Borrower.
6.11 Prepayments, Etc. of Indebtedness. Prepay, redeem, purchase (including at
a discount), defease, refinance, exchange or otherwise satisfy prior to the scheduled
maturity thereof in any manner, or make any payment in violation of any subordination terms
of, any Indebtedness, except:
(a) the prepayment of the Loans and Advances in accordance with the terms of
this agreement;
(b) regularly scheduled or required repayments or redemptions of Indebtedness
set forth in Schedule 6.7; and
(c) refinancings and refundings of Indebtedness otherwise permitted under
Section 6.7(g).
6.12 Creation of Restricted Subsidiaries. From and after March 13, 2009,
create or designate any new Unrestricted Subsidiaries, other than Subsidiaries of existing
Unrestricted Subsidiaries.
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6.13 Trade Payables. Borrower and its Restricted Subsidiaries shall not prepay
any trade payables, except in the ordinary course of business in light of then-existing
circumstances, and, without limitation of the foregoing, any payments of trade payables in
respect of CityCenter shall also be subject to Section 6.8(h) hereof.
SECTION 2.7. Section 7.1(a) of the Loan Agreement is hereby amended by adding the following
proviso at the end of such Section: “provided, however, that, with respect to the
Fiscal Quarter ending March 31, 2009, such financial information shall be provided on or before
May 15, 2009.”
SECTION 2.8. Section 7.1 of the Loan Agreement is hereby amended by deleting the word “and”
at the end of subsection (j), by amending and restating subsection (k) in its entirety and by
adding new subsections (l) and (m) as follows:
(k) Commencing with the month of February, 2009, as soon as practicable, and in any
event within 30 days after the end of each calendar month that is not a Fiscal Quarter
ending month and 40 days after the end of each calendar month that is a Fiscal Quarter
ending month, the consolidated and consolidating balance sheet of the Borrower and its
Subsidiaries as at the end of such month and the consolidated and consolidating statement of
operations for such month and its consolidated statement of cash flows for the portion of
the Fiscal Year ended with such month, all in a form and substance consistent with past
practices;
(l) The monthly reporting information described in clause (k) above for the month of
January 2009 shall be delivered on or before March 27, 2009; and
(m) Such other data and information as from time to time may be reasonably requested by
FTI, the Administrative Agent, any Lender (through the Administrative Agent) or the
Requisite Lenders.”
SECTION 2.9. Section 8.2 of the Loan Agreement is hereby amended by deleting the word “and”
at the end of subsection (b), by replacing the period at the end of subsection (c) with a
semicolon and adding the word “and” immediately after the semicolon and by adding a new subsection
(d) as follows:
“(d) the amount paid pursuant to the provisions of Section 4.6 of the Second Amendment,
shall not result in the reduction of any Lender’s Commitment, but nonetheless shall not be
available for re-borrowing through subsequent Advances or otherwise, absent the written
consent of Requisite Lenders.”
SECTION 2.10. Section 11.3(a) of the Loan Agreement is hereby amended by inserting “and the
reasonable costs of FTI and any other advisor (including financial advisor) or consultant to the
Administrative Agent” after all references in such Section 11.3(a) to “all Attorney Costs”.
SECTION 2.11. Schedules 6.7, 6.8 and 6.9 (“Unrestricted
Subsidiaries”) hereto are hereby added as Schedules 6.7, 6.8 and 6.9 to the Loan Agreement,
respectively.
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SECTION 2.12. The information set forth on Schedule 11.6 as “Address for Administrative
Agent, Issuing Lender and Swing Line Lender” is hereby amended and restated in its entirety as
follows:
“Bank of America, N.A.
Agency Management
Mail Code: TX1-492-14-11
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
xxxxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
Agency Management
Mail Code: TX1-492-14-11
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
xxxxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
With a copy to:
Bank of America, N.A.
Special Assets Group
Mail Code: TX1-492-66-01
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
xxxx.xxxxxxx@xxxxxxxxxxxxx.xxx
Special Assets Group
Mail Code: TX1-492-66-01
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
xxxx.xxxxxxx@xxxxxxxxxxxxx.xxx
And to:
Xxxxx Xxxxx LLP
00 X. Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
xxxxxxxxx@xxxxxxxxxx.xxx”
00 X. Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
xxxxxxxxx@xxxxxxxxxx.xxx”
ARTICLE III
WAIVERS OF LOAN AGREEMENT
WAIVERS OF LOAN AGREEMENT
SECTION 3.1. Waiver through May 15, 2009. Upon the occurrence of the Second
Amendment Effective Date, (i) the requirements of Section 7.1(c) of the Loan Agreement, but solely
with respect to the Specified Alleged Breach, and (ii) the requirements of Sections 6.5 and 6.6 of
the Loan Agreement, but solely with respect to the Fiscal Quarter ending March 31, 2009, are
hereby waived, but only for and through the period ending on May 15, 2009, (such that, by way of
clarification, no Default or Event of Default shall be deemed to arise with respect to the
requirements of Sections 6.5 and 6.6 of the Loan Agreement, solely with respect to the Fiscal
Quarter ending March 31, 2009, during such period), upon which date such
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waivers shall expire (and, with respect to the Specified Alleged Breach, the notice and time
periods set forth in Section 9.1(d) of the Loan Agreement shall be deemed to have been given and
lapsed) without the further action of any party; provided that Borrower reserves its right to
contend that the Specified Alleged Breach does not constitute a Default or Event of Default. By
way of clarification, if there has been a violation of the requirements of Sections 6.5 and 6.6 of
the Loan Agreement for the Fiscal Quarter ending on March 31, 2009, the Event of Default or Events
of Default with respect to which shall be deemed to have arisen on May 16, 2009.
SECTION 3.2. Continued Compliance Certificate Calculations. Consistent with the
limited duration of the waivers granted or that may be granted pursuant to the provisions of this
Article III, the Borrower will continue to calculate all financial covenants in its Compliance
Certificates.
SECTION 3.3. Amendments to Loan Agreement. Without limiting the generality of the
other provisions of this Amendment, the amendments to the Loan Agreement set forth in Article II
hereof shall survive the termination of the waiver pursuant to Section 3.1 hereof.
ARTICLE IV
CONDITIONS TO EFFECTIVENESS
CONDITIONS TO EFFECTIVENESS
The amendments set forth in Article II and the waivers set forth in Article
III shall become effective on the date (the “Second Amendment Effective Date”) when
all of the conditions set forth in this Article IV have been completed to the satisfaction
of the Administrative Agent.
SECTION 4.1. The Administrative Agent shall have received counterparts hereof executed on
behalf of Borrower, Detroit, and the Administrative Agent.
SECTION 4.2. Administrative Agent shall have received a written consent hereto from
Borrower’s Restricted Subsidiaries in the form of Exhibit A hereto.
SECTION 4.3. The Administrative Agent shall have received written consent of the Requisite
Lenders through their execution of consents substantially in the form of Exhibit B hereto.
SECTION 4.4. The Administrative Agent shall have received, for the account of each Lender, a
non-refundable fee in the amount of 0.20% of each such Lender’s Commitment.
SECTION 4.5. The Administrative Agent shall have received a written confirmation from a
Senior Officer of Borrower that since March 9, 2009, the Borrower has not, directly or indirectly
prepaid, redeemed, purchased or defeased any of its Indebtedness.
SECTION 4.6. Borrower shall have prepaid the Revolving Loans pursuant to Section 3.1(f) of
the Loan Agreement in an amount of not less than $300,000,000.
SECTION 4.7. While leaving Xxxxx Xxxxx’x and FTI’s existing retainers intact, Borrower shall
have reimbursed the Administrative Agent for the reasonable fees and expenses of Xxxxx Xxxxx and
FTI for the period through the Second Amendment Effective Date.
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Upon the Second Amendment Effective Date, the Applicable Rates set forth in Section 2.2 hereof
shall become effective.
ARTICLE V
RETENTION OF RIGHTS, ETC.
RETENTION OF RIGHTS, ETC.
SECTION 5.1. Limitation to its Terms. This Amendment strictly shall be limited to
its terms.
SECTION 5.2. Retention of Rights. Without limiting the generality of Section 5.1,
except as specifically set forth in Article III hereof, neither the execution, delivery nor
effectiveness of this Amendment shall operate as a waiver of (or forbearance with respect to) any
present or future Default or Event of Default or as a waiver of (or forbearance with respect to)
the ability of the Administrative Agent or the other Lenders to exercise any right, power, and/or
remedy, whether under any Loan Document and/or under any applicable law, in connection therewith.
As provided in Section 11.1 of the Loan Agreement, no failure on the part of any Lender or any
Agent to exercise, and no delay in exercising, any right under the Loan Agreement shall operate as
a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right.
SECTION 5.3. Full Force and Effect; Limited Waiver. Without limiting the generality
of Section 5.1, except as expressly amended hereby, all of the representations, warranties, terms,
covenants, conditions and other provisions of the Loan Agreement shall remain unchanged and shall
continue to be, and shall remain, in full force and effect in accordance with their respective
terms. Without limiting the generality of Section 5.1, the amendments set forth herein shall be
limited precisely as provided for herein to the provision expressly amended herein and shall not
be deemed to be amendments to, waivers of, consents to or modifications of any other term or
provision of the Loan Agreement or of any transaction or further or future action on the part of
Borrower which would require the consent of the Lenders under the Loan Agreement.
ARTICLE VI
MISCELLANEOUS
MISCELLANEOUS
SECTION 6.1. Compliance Certificate. In the event that the Second Amendment
Effective Date occurs, the form of Compliance Certificate for the Fiscal Year 2008 that is
required to be delivered on or before April 15, 2009 may qualify the Material Adverse Effect
representation by reference to general economic conditions.
SECTION 6.2. Representations and Warranties. The Borrower represents and warrants
the following:
(a) after giving effect to this Amendment, no Default or Event of Default is
continuing;
(b) after giving effect to this Amendment, the representations and warranties contained
in Article 4 of the Loan Agreement are true and correct on and as of the
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Second Amendment Effective Date as though made on that date (or, if stated to have been
made as of an earlier date, was true and correct as of such earlier date); and
(c) this Amendment has been duly authorized by Borrower and Detroit, there is no action
pending or any order, judgment, or decree in effect that is likely to restrain, prevent, or
impose materially adverse conditions upon the performance by Borrower, Detroit, or any of
Borrower’s Subsidiaries under the Loan Agreement or any of the other Loan Documents, and
this Amendment constitutes the valid, binding and enforceable obligation of Borrower and
Detroit in accordance with its terms, except as enforcement may be limited by Debtor Relief
Laws, Gaming Laws or equitable principles relating to the granting of specific performance
and other equitable remedies as a matter of judicial discretion; and
(d) The execution, delivery and performance by each of Borrower and Detroit of this
Amendment do not and will not conflict with, or constitute a violation or breach of, or
result in the imposition of any Lien upon the property of Borrower, Detroit, or any other of
Borrower’s Subsidiaries, by reason of the terms of (i) any contract, mortgage, lease,
agreement, indenture, or instrument to which Borrower, Detroit, or any of Borrower’s
Subsidiaries is a party or which is binding upon it, (ii) any requirement of law applicable
to any Borrower, Detroit, or any of Borrower’s Subsidiaries, or (iii) the certificate or
articles of incorporation or by-laws or the limited liability company or limited partnership
agreement, or analogous organizational document, of any Borrower, Detroit, or any of
Borrower’s Subsidiaries.
SECTION 6.3. Loan Document. This Amendment is a Loan Document and shall (unless
otherwise expressly indicated herein) be construed, administered and applied in accordance with
all of the terms and provisions of the Loan Agreement, including Article 1 thereof.
SECTION 6.4. Reaffirmation of Obligations. Each of Borrower and Detroit hereby
acknowledges that the Loan Documents (as amended by this Amendment) and the Obligations constitute
the valid and binding Obligations of Borrower and Detroit enforceable against Borrower and Detroit
in accordance with their respective terms, and each of Borrower and Detroit hereby reaffirms its
Obligations under the Loan Documents (as amended by this Amendment) (and, as to Detroit, its
liability is limited to that portion of the Obligations which are actually borrowed or received by
Detroit). Administrative Agent’s and any Lender’s entry into this Agreement or any of the
documents referenced herein, Administrative Agent’s and any Lender’s negotiations with any party
with respect to any Loan Document, Administrative Agent’s and any Lender’s acceptance of any
payment from Borrower, Detroit, any Guarantor or any other party of any payments made to
Administrative Agent or any Lender prior to the date hereof, or any other action or failure to act
on the part of Administrative Agent or any Lender shall not constitute (a) a modification of any
Loan Document (except to the extent of the specific amendments contained herein), or (b) except
for as set forth herein, a waiver of any Default or Event of Default under the Loan Documents, or
a waiver of any term or provision of any Loan Document.
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SECTION 6.5. Estoppel. To induce the Administrative Agent and Lenders to enter into
this Agreement and to induce the Administrative Agent and Lenders to continue to make advances to
Borrowers under the Credit Agreement, each Borrower and each Guarantor hereby acknowledges and
agrees that, other than the Specified Alleged Breach, (if such Specified Alleged Breach
constitutes a Default), as of the date hereof, there exists no Default or Event of Default and no
right of offset, defense, counterclaim or objection in favor of Borrower, Detroit or any Guarantor
as against the Administrative Agent or any Lender with respect to the Obligations.
SECTION 6.6. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and to the Loan Agreement and their respective successors and
permitted assigns.
SECTION 6.7. Execution in Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be an original and all of which shall
constitute together but one and the same agreement.
SECTION 6.8. Integration. This Amendment represents the agreement of the Borrower,
Detroit, the Administrative Agent and each of the Lenders (through the Requisite Lenders’
consenting hereto) with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties relative to the subject matter hereof not expressly
set forth or referred to herein or in the other Loan Documents.
SECTION 6.9. Governing Law and Waiver of Jury Trial. The terms of Sections 11.17
(Governing Law) and 11.28 (Jury Trial Waiver) of the Loan Agreement are incorporated herein as
though set forth in full.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the
date first above written.
MGM MIRAGE, | ||||||
a Delaware corporation | ||||||
By: | /s/ Xxxx X. XxXxxxx | |||||
Name: Xxxx X. XxXxxxx | ||||||
Title: Assistant Secretary | ||||||
MGM GRAND DETROIT, LLC, | ||||||
a Delaware limited liability company | ||||||
By: | MGM Grand Detroit, Inc., | |||||
Managing Member | ||||||
By: | /s/ Xxxx X. XxXxxxx | |||||
Name: Xxxx X. XxXxxxx | ||||||
Title: Assistant Secretary | ||||||
BANK OF AMERICA, N.A., | ||||||
as Administrative Agent | ||||||
By: | /s/ Xxxx X. Xxxxxxx III | |||||
Name: Xxxx X. Xxxxxxx III | ||||||
Title: Senior Vice President |