Exhibit 10.1
SECOND AMENDMENT TO
CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Second Amendment"),
dated as of June 29, 2005, is made and entered into among WYNN LAS VEGAS, LLC,
a Nevada limited liability company (the "Borrower"), the Wynn Amendment Parties
(as hereinafter defined) and DEUTSCHE BANK TRUST COMPANY AMERICAS, as
Administrative Agent (in such capacity, the "Administrative Agent") on behalf
of the Lenders (as hereinafter defined).
RECITALS
A. The Borrower and the Administrative Agent are parties to that
certain Credit Agreement dated as of December 14, 2004 (as amended, modified or
supplemented from time to time, the "Credit Agreement") among the Borrower, the
Administrative Agent, Deutsche Bank Securities Inc., as lead arranger and joint
book running manager, Banc of America Securities LLC, as lead arranger and
joint book running manager, Bank of America, N.A., as syndication agent, Bear,
Xxxxxxx & Co. Inc., as arranger and joint book running manager, Bear Xxxxxxx
Corporate Lending Inc., as joint documentation agent, X.X. Xxxxxx Securities
Inc., as arranger and joint book running manager, JPMorgan Chase Bank, as joint
documentation agent, SG Americas Securities, LLC, as arranger and joint book
running manager, Societe Generale, as joint documentation agent, and the
several banks and other financial institutions or entities from time to time
parties thereto (the "Lenders").
B. In connection with the Credit Agreement, Wynn Las Vegas Capital
Corp., a Nevada corporation ("Capital Corp."), Wynn Show Performers, LLC, a
Nevada limited liability company ("Show Performers"), Xxxx Golf, LLC, a Nevada
limited liability company ("Xxxx Golf"), Xxxx Sunrise, LLC, a Nevada limited
liability company ("Wynn Sunrise"), World Travel, LLC, a Nevada limited
liability company ("World Travel"), and Las Vegas Jet, LLC, a Nevada limited
liability company (together with Capital Corp., Show Performers, Xxxx Golf,
Xxxx Sunrise and World Travel, the "Wynn Amendment Parties") have executed that
certain Guarantee dated as of December 14, 2004 (as amended, modified or
supplemented from time to time, the "Guarantee").
C. The Borrower has requested that the Lenders agree, subject to the
conditions and on the terms set forth in this Second Amendment, to amend
certain provisions of the Credit Agreement in order to extend the Phase II
Commitment Sunset Date.
D. The Lenders are willing to agree to such amendments, subject to the
conditions and on the terms set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower, the Administrative
Agent on behalf of the Lenders and the Wynn Amendment Parties agree as follows:
1. Definitions. Except as otherwise expressly provided herein,
capitalized terms used in this Second Amendment shall have the meanings given
in the Credit Agreement, and the rules of interpretation set forth in the
Credit Agreement shall apply to this Second Amendment.
2. Amendments.
(a) Section 1.1 of the Credit Agreement is hereby amended by deleting
the date June 30, 2005 from the existing definition of "Phase II Commitment
Sunset Date" and replacing it with the following:
December 31, 2005; provided, however that the Borrower may, by written
notice delivered to the Arrangers no later than December 15, 2005
request an extension of the Phase II Commitment Sunset Date to March
31, 2006, which extension shall be granted if approved by a Majority
of the Arrangers or the Required Lenders.
(b) Section 2.12(e) of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
If the Phase II Approval Date has not occurred on or prior to December
31, 2005, then on such date the Borrower shall prepay the Obligations
in accordance with Section 2.12(g) in an aggregate principal amount of
$550,000,000; provided, however, that if prior to December 31, 2005,
the Phase II Commitment Sunset Date has been extended until March 31,
2006 in accordance with the definition thereof, then the Borrower
shall not be required to make the foregoing prepayment on December 31,
2005 but instead shall be required to make such prepayment on March
31, 2006 if the Phase II Approval Date has not occurred on or prior to
such date.
(c) Section 6.11 of the Credit Agreement is hereby amended by adding
the following after the conclusion of paragraph (b) thereof:
(c) At all times prior to the earlier of (i) the Phase II Approval
Date and (ii) the date on which the Borrower makes the prepayment
required under Section 2.12(e), the Borrower shall cause the sum of
(A) the undrawn commitments under the Revolving Credit Facility and
(B) amounts on deposit in the Bank Proceeds Account, to equal or
exceed $550,000,000.
3. Disbursement Agreement Amendment. The Administrative Agent is
hereby directed to execute that certain Second Amendment to Disbursement
Agreement (the "Disbursement Agreement Amendment") substantially in the form
attached hereto as Exhibit A on behalf of the Lenders.
4. Representations and Warranties. To induce the Lenders to agree to
this Second Amendment, the Borrower represents to the Administrative Agent and
the Lenders that as of the date hereof:
(a) the Borrower and each of the Wynn Amendment Parties has all power
and authority to enter into this Second Amendment and the Disbursement
Agreement Amendment (collectively, the "Second Amendment Documents") to which
each is a party and that have been entered into by the Borrower and each of the
Wynn Amendment Parties as of the date this representation is being made, and to
carry out the transactions contemplated by, and to perform its obligations
under or in respect of, the Second Amendment Documents to which each is a
party;
(b) the execution and delivery of Second Amendment Documents and the
performance of the obligations of the Borrower and each of the Wynn Amendment
Parties under or in respect of the Second Amendment Documents to which each is
a party and that have been entered into by the Borrower and each of the Wynn
Amendment Parties as of the date this representation is being made have been
duly authorized by all necessary action on the part of the Borrower and each of
the Wynn Amendment Parties;
(c) the execution and delivery of the Second Amendment Documents that
have been entered into by the Borrower and each of the Wynn Amendment Parties
as of the date this representation is being made and the performance of the
obligations of the Borrower and each of the Wynn Amendment Parties under or in
respect of such Second Amendment Documents to which each is a party do not and
will not conflict with or violate (i) any provision of the articles of
incorporation or bylaws (or similar constituent documents) of the Borrower or
any Wynn Amendment Party, (ii) any Requirement of Law, (iii) any order,
judgment or decree of any court or other governmental agency binding on the
Borrower or any Wynn Amendment Party, or (iv) any indenture, agreement or
instrument to which the Borrower or any Wynn Amendment Party is a party or by
which the Borrower or any Wynn Amendment Party, or any property of any of them,
is bound, and do not and will not require any consent or approval of any
Person;
(d) the Second Amendment Documents that have been entered into by the
Borrower and each of the Wynn Amendment Parties as of the date this
representation is being made have been duly executed and delivered by the
Borrower and each of the Wynn Amendment Parties party thereto and the Credit
Agreement and the other Loan Documents, as amended by the Second Amendment
Documents, are the legal, valid and binding obligations of the Borrower and
each of the Wynn Amendment Parties, enforceable in accordance with their terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law);
(e) after giving effect to the Second Amendment Documents that have
been entered into by the Borrower and each of the Wynn Amendment Parties as of
the date this representation is being made, no event has occurred and is
continuing or will result from the execution and delivery of the Second
Amendment Documents that would constitute a Default or an Event of Default;
(f) since the Closing Date, no event has occurred that has resulted,
or could reasonably be expected to result, in a Material Adverse Effect; and
(g) each of the representations and warranties made by the Borrower
and the Wynn Amendment Parties in or pursuant to the Loan Documents to which
each is a party shall be true and correct in all material respects on and as of
the date this representation is being made, except for representations and
warranties expressly stated to relate to a specific earlier date, in which case
such representations and warranties shall be true and correct in all material
respects as of such earlier date.
5. Effectiveness of this Second Amendment. This Second Amendment shall
be effective only if and when signed by the Borrower, and the Wynn Amendment
Parties and the Administrative Agent on behalf of the Lenders.
6. Acknowledgments. By executing this Second Amendment each of the
Wynn Amendment Parties (a) consents to the Second Amendment Documents, (b)
acknowledges that notwithstanding the execution and delivery of the Second
Amendment Documents, the obligations of each of the Wynn Amendment Parties
under the Guarantee are not impaired or affected and the Guarantee continues in
full force and effect and (c) affirms and ratifies, to the extent it is a party
thereto, the Guarantee.
7. Miscellaneous. THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAW RULES THEREOF (OTHER THAN SECTION 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW). This Second Amendment may be
executed in one or more duplicate counterparts and when signed by all of the
parties listed below shall constitute a single binding agreement. Except as
amended hereby, all of the provisions of the Credit Agreement and the other
Loan Documents shall remain in full force and effect except that each reference
to the "Credit Agreement", or words of like import in any Loan Document, shall
mean and be a reference to the Credit Agreement as amended hereby. This Second
Amendment shall be deemed a "Loan Document" as defined in the Credit Agreement.
Section 10.12 of the Credit Agreement shall apply to this Second Amendment and
all past and future amendments to the Credit Agreement and other Loan Documents
as if expressly set forth therein.
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IN WITNESS WHEREOF, the parties have caused this Second Amendment to
be duly executed by their officers or officers of their sole ultimate members
thereunto duly authorized as of the day and year first above written, to be
effective as of the Effective Date.
XXXX LAS VEGAS, LLC, XXXX GOLF, LLC,
a Nevada limited liability company a Nevada limited liability company
By: Wynn Resorts Holdings, LLC, By: Wynn Las Vegas, LLC,
a Nevada limited liability company, a Nevada limited liability company,
its sole member its sole member
By: Wynn Resorts, Limited, By: Xxxx Resorts Holdings, LLC,
a Nevada corporation, a Nevada limited liability company,
its sole member its sole member
By: /s/ Xxxx Xxxxxxx By: Wynn Resorts, Limited,
----------------------------- a Nevada corporation,
Name: Xxxx Xxxxxxx its sole member
Title: Executive Vice President,
CFO & Treasurer By: /s/ Xxxx Xxxxxxx
------------------------
Name: Xxxx Xxxxxxx
Title: Executive Vice President,
CFO & Treasurer
XXXX SUNRISE, LLC, WORLD TRAVEL, LLC,
a Nevada limited liability company a Nevada limited liability company
By: Xxxx Las Vegas, LLC, By: Xxxx Las Vegas, LLC,
a Nevada limited liability company, a Nevada limited liability company,
its sole member its sole member
By: Wynn Resorts Holdings, LLC, By: Xxxx Resorts Holdings, LLC,
a Nevada limited liability company, a Nevada limited liability company,
its sole member its sole member
By: Wynn Resorts, Limited, a Nevada By: Wynn Resorts, Limited, a Nevada
corporation, its sole member corporation, its sole member
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxx Xxxxxxx
--------------------------------- ----------------------------
Name: Xxxx Xxxxxxx Name: Xxxx Xxxxxxx
Title: Executive Vice President, Title: Executive Vice President,
CFO & Treasurer CFO & Treasurer
LAS VEGAS JET, LLC, XXXX SHOW PERFORMERS, LLC,
a Nevada limited liability company a Nevada limited liability company
By: Xxxx Las Vegas, LLC, By: Xxxx Las Vegas, LLC,
a Nevada limited liability company, a Nevada limited liability company,
its sole member its sole member
By: Wynn Resorts Holdings, LLC, By: Xxxx Resorts Holdings, LLC,
a Nevada limited liability company, its a Nevada limited liability company,
sole member its sole member
By: Wynn Resorts, Limited, a Nevada
By: Wynn Resorts, Limited, a Nevada corporation, its sole member
corporation, its sole member
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxx Xxxxxxx
--------------------------------- ---------------------------
Name: Xxxx Xxxxxxx Name: Xxxx Xxxxxxx
Title: Executive Vice President, Title: Executive Vice President,
CFO & Treasurer CFO & Treasurer
WYNN LAS VEGAS CAPITAL CORP., DEUTSCHE BANK TRUST COMPANY AMERICAS, as the Administrative
a Nevada corporation Agent on behalf of the Lenders
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------ -----------------------------
Name: Xxxx Xxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President, CFO & Title: Managing Director
Treasurer
By: /s/ X.X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
EXHIBIT A
SECOND AMENDMENT
TO MASTER DISBURSEMENT AGREEMENT
SECOND AMENDMENT
TO MASTER DISBURSEMENT AGREEMENT
THIS SECOND AMENDMENT TO MASTER DISBURSEMENT AGREEMENT (the
"Amendment") is made and entered into as of _________, 2005, by and among WYNN
LAS VEGAS, LLC, a Nevada limited liability company (the "Company"), DEUTSCHE
BANK TRUST COMPANY AMERICAS as the Bank Agent (the "Bank Agent"), and DEUTSCHE
BANK TRUST COMPANY AMERICAS, as the Disbursement Agent (the "Disbursement
Agent"), with respect to the following:
Recitals
A. Disbursement Agreement. The undersigned are parties to that certain
Master Disbursement Agreement dated December 14, 2004 (as amended, modified or
supplemented from time to time, the "Disbursement Agreement") among the
Company, the Bank Agent, U.S. Bank, National Association as the indenture
trustee (the "Indenture Trustee"), and the Disbursement Agent. The defined
terms used herein and not otherwise defined herein shall have the meanings
given in the Disbursement Agreement.
B. Right to Amend Disbursement Agreement Without Consent of Indenture
Trustee. The Bank Agent, the Disbursement Agent and the Company have the right
to amend this Disbursement Agreement as set forth therein without the Indenture
Trustee's consent.
C. Amendment. The undersigned desire to amend the Disbursement
Agreement to reflect certain agreements of the parties hereto, all as more
particularly set forth herein.
Agreement
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned agree
as follows:
1. DEFINITIONS.
a. Phase II Revolving Commitment Sunset Date. Exhibit A of the
Disbursement Agreement is hereby amended by deleting the date June 30, 2005
from the existing definition of "Phase II Revolving Commitment Sunset Date" and
replacing it with the following: "the Phase II Commitment Sunset Date (as
defined in the Bank Credit Agreement), as the same may be extended in
accordance with the terms of the Bank Credit Agreement."
b. Outside Phase II Completion Deadline. Exhibit A of the
Disbursement Agreement is hereby amended by deleting the existing definition of
"Outside Phase II Completion Deadline" in its entirety and replacing it with
the following: "means December 31, 2008, as extended from time to time by the
Company (i) in accordance with Section 6.3.2 of the Disbursement Agreement or
(ii) with the approval of the Required Lenders."
c. Outside Phase II Opening Deadline. Exhibit A of the
Disbursement Agreement is hereby amended by deleting the existing definition of
"Outside Phase II Opening Deadline" in its entirety and replacing it with the
following: "means September 30, 2008, as extended from time to time by the
Company (i) in accordance with Section 6.3.2 of the Disbursement Agreement or
(ii) with the approval of the Required Lenders."
2. MISCELLANEOUS. Except as set forth in this Amendment, all other
terms and provisions of the Disbursement Agreement remain unmodified and in
full force and effect. This Amendment shall be construed and enforced in
accordance with the laws of the State of New York. In the event that any term
or provision contained herein is held to be invalid, void or otherwise
unenforceable by any court of competent jurisdiction, the fact that such term
or provision is invalid, void or otherwise unenforceable shall in no way affect
the validity or enforceability of any other term or provision contained herein.
This Amendment may be executed in any number of identical counterparts.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
day and year first written above.
COMPANY:
--------
WYNN LAS VEGAS, LLC,
a Nevada limited liability company
By: Xxxx Resorts Holdings, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited,
a Nevada corporation,
its sole member
By: _____________________________
Name: ___________________________
Title: __________________________
BANK AGENT:
----------
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: ___________________________________
Name: _________________________________
Title: ________________________________
By: ___________________________________
Name: _________________________________
Title: ________________________________
DISBURSEMENT AGENT:
------------------
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: ___________________________________
Name: _________________________________
Title: ________________________________
By: ___________________________________
Name: _________________________________
Title: ________________________________
