FIRST AMENDMENT TO CREDIT AGREEMENT AND DISBURSEMENT AGREEMENT Dated as of March 5, 2007
Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT AND DISBURSEMENT AGREEMENT
Dated as of March 5, 2007
Dated as of March 5, 2007
This FIRST AMENDMENT (together with all Exhibits hereto, this “Amendment”) is among
VENETIAN MACAU LIMITED, a Macau corporation (the “Company”), VML US FINANCE LLC, a Delaware
limited liability company (the “Borrower”), VENETIAN COTAI LIMITED, a Macau corporation
(the “Cotai Subsidiary”), THE BANK OF NOVA SCOTIA, as administrative agent for the Lenders
(in such capacity, the “Administrative Agent”), and, with respect to the Disbursement
Agreement Amendment (as defined below), as disbursement agent (in such capacity, the
“Disbursement Agent”).
PRELIMINARY STATEMENTS:
A. The Company, the Borrower, the Lenders, the Administrative Agent, Banco Nacional
Ultramarino and Sumitomo Mitsui Banking Corporation, as Co-Documentation Agents, and Xxxxxxx Xxxxx
Credit Partners, L.P., Xxxxxx Brothers Inc. and Citigroup Global Markets, Inc. as Co- Syndication
Agents and Arrangers, entered into that certain Credit Agreement, dated as of May 25, 2006
(together with all Exhibits and Schedules thereto, the “Credit Agreement”; capitalized
terms used and not otherwise defined herein shall have the meanings ascribed to such terms in the
Credit Agreement).
B. Concurrently with the execution and delivery of the Credit Agreement and in order to, among
other things, memorialize the parties’ agreement pertaining to mechanics for, conditions applicable
to, and allocation of the Company’s requests for Advances and certain construction related
covenants, conditions, representation and defaults, the Company, the Borrower, the Cotai
Subsidiary, the Administrative Agent, and the Disbursement Agent entered into that certain
Disbursement Agreement, dated as of May 25, 2006 (together with all Exhibits thereto, the
“Disbursement Agreement”).
C. The Company and the Borrower have requested that the Lenders agree to amend certain
provisions of the Credit Agreement and the Disbursement Agreement to provide for the matters
described herein.
D. The Lenders whose signatures appear below, constituting the Requisite Lenders, hereby agree
to the amendments set forth in Section 1 on the terms and conditions contained herein.
E. If the Repricing Effective Date occurs, the Lenders whose signatures appear below,
constituting all Lenders, hereby agree to the amendments set forth in Section 2 on the terms and
conditions contained herein.
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. General Amendments. Upon the terms and subject to the conditions set forth herein and
in reliance on the representations and warranties of the Loan Parties set forth herein, the parties
hereto hereby agree to the following amendments, which amendments refer to the Credit Agreement
unless specifically noted otherwise:
(a) Use of Proceeds.
(1) A new definition is hereby added in proper alphabetical order in Section 1.1 as follows:
““Non-Project Cost Term Loans” means any Term B Delayed Draw Loans or New Term Loans none of
the proceeds of which are used to fund Project Costs or Cotai Strip Investments.”
(2) Subsection 2.1B is hereby amended as follows:
(a) To replace the first sentence in the second paragraph in its entirety with the following:
“Whenever the Borrower desires that Lenders make Term Loans (other than the initial Credit
Extensions on the Closing Date, Non-Project Cost Term Loans and Term B Delayed Draw Loans on the
Term B Delayed Draw Loan Commitment Termination Date) or Project Cost Revolving Loans, the Borrower
shall deliver to the Disbursement Agent the Advance Request, Borrowing Notice, and related
documentation required by the terms of Section 2.4.1(a) or Section 3.7, as applicable, of the
Disbursement Agreement.”
(b) To add the words “Non-Project Cost Term Loans or” prior to the words “Revolving Loans” in
the first line of the third paragraph thereof, and to replace the words “Revolving Loans” with
“Loans” in each instance where it appears in the second and third sentences of such third
paragraph.
(3) The first paragraph of subsection 2.1C is hereby amended as follows:
(a) To replace the first and third parenthetical phrases therein in their entirety as follows:
“(other than the initial Credit Extensions on the Closing Date, Non-Project Cost Term Loans, and
Term B Delayed Draw Loans on the Term B Delayed Draw Loan Commitment Termination Date)”.
(b) To replace the second parenthetical phrase therein in its entirety as follows: “(unless in
the case of Term Loans other than Non-Project Cost Term Loans, or Project Cost Revolving Loans, the
Administrative Agent shall have subsequently received a Stop Funding Notice)”.
(c) To
insert the words, “New Term Loans” after the words “Term B Loans” in clause (a)
thereof.
(d) To insert the following parenthetical after the words “Disbursement Agent” in clause (x)
thereof: “(provided that no Construction Consultant certificate shall be required to be delivered
if Section 3.7 of the Disbursement Agreement applies with respect to the applicable Advance)”.
(4) Subsection 2.5A is hereby replaced in its entirety with the following:
“A. Revolving Loans. The proceeds of the Revolving Loans (other than any New
Revolving Loans), including any Swing Line Loans, shall be applied by the Borrower for working
capital and general corporate purposes of the Loan Parties (other than the Immaterial Subsidiaries)
to the extent not otherwise specifically prohibited by the terms of the Loan Documents, including
to finance Non-
Casino Project Costs (but not Project Costs other than Non-Casino Project Costs), or to make
Cotai Strip Investments or any other investment or payment permitted hereunder.”
(5) Subsection 2.5C is hereby replaced in its entirety with the following:
“C. Term B Delayed Draw Project Loans. The proceeds of the Term B Delayed Draw
Project Loans shall be applied by the Borrower for working capital and general corporate purposes
of the Loan Parties (other than the Immaterial Subsidiaries) to the extent not otherwise
specifically prohibited by the terms of the Loan Documents, including to finance Project Costs, or
to make Cotai Strip Investments or any other investment or payment permitted hereunder.”
(6) Subsection 2.5D is hereby replaced in its entirety with the following:
“D. Term B Delayed Draw Non-Casino Loans. The proceeds of the Term B Delayed Draw
Non-Casino Loans shall be applied by the Borrower for working capital and general corporate
purposes of the Loan Parties (other than the Immaterial Subsidiaries) to the extent not otherwise
specifically prohibited by the terms of the Loan Documents, including to finance Non-Casino Project
Costs (but not Project Costs other than Non-Casino Project Costs), or to make Cotai Strip
Investments or any other investment or payment permitted hereunder.”
(7) Subsection 2.5E is hereby replaced in its entirety with the following:
“E. Term B Funded Project Loans. The proceeds of the Term B Funded Project Loans
shall be applied by the Borrower to repay the Refinanced Debt, pay Transaction Costs, fund the
Interest Escrow Account, pay Project Costs, finance land concession payments pursuant to Land
Concession Contracts permitted by the terms of this Agreement to be entered into and exist, or for
working capital and general corporate purposes of the Loan Parties (other than the Immaterial
Subsidiaries) to the extent not otherwise specifically prohibited by the terms of the Loan
Documents, including to make Cotai Strip Investments or any other investment or payment permitted
hereunder.”
(8) Subsection 2.5F is hereby replaced in its entirety with the following:
“F. Term B Funded Non-Casino Loans. The proceeds of the Term B Funded Non-Casino
Loans shall be applied by the Borrower to repay the Refinanced Debt, pay Transaction Costs, fund
the Interest Escrow Account, pay Non-Casino Project Costs (but not Project Costs other than
Non-Casino Project Costs), finance land concession payments pursuant to Land Concession Contracts
permitted by the terms of this Agreement to be entered into and exist, or for working capital and
general corporate purposes of the Loan Parties (other than the Immaterial Subsidiaries) to the
extent not otherwise specifically prohibited by the terms of the Loan Documents, including to make
Cotai Strip Investments or any other investment or payment permitted hereunder.”
(9) Subsection 2.5G is hereby replaced in its entirety with the following:
“G. New Term Loans and New Revolving Loans. The proceeds of the New Term Loans and/or
New Revolving Loans, if any, shall be applied by the Borrower for working capital and general
corporate purposes of the Loan Parties (other than the Immaterial Subsidiaries) (including to
finance Project Costs, or to the extent so limited in the applicable Joinder Agreements, Non-Casino
Project Costs, and/or to make Cotai Strip Investments), including any investment or payment
permitted hereunder.”
(10) Subsection 2.9A is hereby replaced in its entirety with the following:
“A. The Borrower may by written notice to the Co-Syndication Agents and the Administrative
Agent elect to request from time to time (i) prior to the Revolving Loan Commitment Termination
Date, an increase to the existing Revolving Loan Commitments (any such increase, the “New Revolving
Loan Commitments”) and/or (ii) the establishment of one or more new term loan commitments (the “New
Term Loan Commitments”), denominated in U.S. Dollars in an amount not in excess of $800,000,000 in
the aggregate, and not less than $25,000,000 individually (or such lesser amount which shall be
approved by the Co-Syndication Agents and the Administrative Agent), which amount set forth in such
notice may be a proposed range of new commitments that otherwise comply with the foregoing
requirements. Each such notice shall specify the date (each, an “Increased Amount Date”) on which
the Borrower proposes that the New Revolving Loan Commitments or New Term Loan Commitments, as the
case may be, shall be effective, which shall be a date not less than 10 Business Days (or such
shorter time as is agreed upon by the Administrative Agent and each Co-Syndication Agent) after the
date on which such notice is delivered to each Co-Syndication Agent and the Administrative Agent.
When available, the Co-Syndication Agents will deliver a notice to the Borrower and each Lender and
the Administrative Agent setting forth the identity of each Lender or other Person that is an
Eligible Assignee (each, a “New Term Loan Lender” or a “New Revolving Loan Lender”, as applicable)
to which the Co-Syndication Agents have allocated any portion of such New Revolving Loan
Commitments or New Term Loan Commitments and the amounts of such allocations, and in the case of
each notice to any Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s
Revolving Loans, in each case subject to the assignments contemplated by this Section;
provided that any Lender approached to provide all or a portion of the New Revolving Loan
Commitments or New Term Loan Commitments may elect or decline, in its sole discretion, to provide a
New Revolving Loan Commitment or New Term Loan Commitment.”
(11) Subsection 2.9B is hereby amended to delete clause (3) thereof in its entirety, and to
renumber clauses (4) through (7) as clauses (3) through (6) in appropriate numerical order.
(12) The first sentence of subsection 4.2 is hereby amended to add the words “Non-Project Cost
Term Loans or” after the words “The obligations of Lenders to make”.
(13) The first parenthetical in subsection 4.2B(i) is hereby replaced in its entirety with:
“(in the case of (w) Letters of Credit not issued in connection with the payment of, or in support
of obligations to pay, Project Costs, (x) Revolving Loans that are not Project Cost Revolving
Loans, (y) Non-Project Cost Term Loans, and (z) any Term B Delayed Draw Loans borrowed on the Term
B Delayed Draw Loan Commitment Termination Date, other than the Disbursement Agreement)”.
(14) The first parenthetical in subsection 4.2B(iii) is hereby replaced in its entirety with:
“(and in the case of Loans other than (w) Letters of Credit not issued in connection with the
payment of, or in support of obligations to pay, Project Costs, (x) Revolving Loans that are not
Project Cost Revolving Loans, (y) Non-Project Cost Term Loans, and (z) any Term B Delayed Draw
Loans borrowed on the Term B Delayed Draw Loan Commitment Termination Date, the applicable
conditions set forth in the Disbursement Agreement)”.
(15) The first sentence of Section 5 is hereby amended to add the words “Non-Project Cost Term
Loans or” after the words “Revolving Loans that are not Project Cost Revolving Loans or”.
(b) Financial Plan. Subsection 6.1(xiii) is hereby replaced in its entirety as follows:
“(xiii) Financial Plans: as soon as practicable and in any event no later than 30
days prior to the beginning of each Fiscal Year, a consolidated plan and financial forecast for the
Active Projects for such Fiscal Year and each subsequent Fiscal Year through the Maturity Date of
the Term B Loans or a five year period, whichever is less (the “Financial Plan” for such Fiscal
Years), including (a) forecasted consolidated balance sheets and forecasted consolidated statements
of income and cash flows of the Company and its Restricted Subsidiaries for such Fiscal Years
attributable to all Active Projects, but excluding the results of the Excluded Casinos (this
exclusion includes all of the assets, liabilities, income, stockholders’ equity and cash flow
associated with the Excluded Casinos), together with a pro forma Compliance Certificate as of
December 31st of the next ensuing Fiscal Year and an explanation of the assumptions on which such
forecasts are based, and (b) such other information and projections for such Fiscal Years as any
Lender may reasonably request;”
(c) Expanded Investment Capacity.
(1) Subsection 7.3(viii) is hereby replaced in its entirety as follows:
“(viii) so long as no Potential Event of Default or Event of Default shall have occurred and
be continuing, Investments in Cotai Strip Excluded Subsidiaries, the proceeds of which Investments
are used by such Cotai Strip Excluded Subsidiary, to develop and construct Excluded Casino Hotel
Resorts (a “Cotai Strip Investment”) in an aggregate amount at any one time outstanding not to
exceed the sum of (a) $800,000,000 (less (x) at any time prior to the satisfaction or waiver of all
the conditions precedent set forth in Sections 3.1 and 3.4 of the Disbursement Agreement in order
for the Company (as defined therein) to obtain one Advance under Section 3.1 of the Disbursement
Agreement in respect of the Venetian Macao Overall Project, the amount, if any, disbursed under
Section 3.6 of the Disbursement Agreement in excess of (1) $900,000,000 plus (2) any amounts
expended on land premiums pursuant to clause (b) of the definition of Maximum Early Advance Amount;
and (y) the amount of loans then outstanding, if any, to Excluded Subsidiaries developing Casino
Operation Projects made pursuant to subsection 7.3(xxi)) and (b) the aggregate amount of
net-after-tax cash dividends received by any Loan Party from such Cotai Strip Excluded Subsidiary
(other than the dividends received by the Loan Parties to pay obligations of or related to the
Cotai Strip Excluded Subsidiaries or the Excluded Casinos (including for the payment of income
taxes payable in respect of the income of such Cotai Strip Excluded Subsidiaries or Excluded
Casinos)), the proceeds of which have been deposited into the Term Loan Disbursement Account;”
(2) Subsection 7.3(xix) is hereby amended to delete the “and” at the end thereof.
(3) Subsection 7.3(xx) is hereby amended to delete the “.” at the end thereof, and replace it
with “;”.
(4) A new subsection 7.3(xxi) is hereby added in numerical order as follows:
“ (xxi) so long as no Potential Event of Default or Event of Default shall have occurred and
be continuing and subject to the terms of the Disbursement Agreement, the Loan Parties may make
Investments in Excluded Subsidiaries developing Other Resort Projects to be located on one or more
of Sites 3, 7, and 8 in the form of loans of up to $200,000,000 in the aggregate at any one time
outstanding; provided that the proceeds of such loans are employed by such Excluded
Subsidiaries for payment of costs and expenses in connection with the development of such Other
Resort Projects; provided further that, at any time prior to (a) the satisfaction
(or waiver) of all the conditions precedent set forth in Sections 3.1 and 3.4 of the Disbursement
Agreement in order for the Company to obtain one Advance under Section 3.1 in respect of the
Venetian Macao Overall Project and (b) the designation of each Cotai Strip Excluded Subsidiary in
which a Cotai Strip Investment has been made as a Restricted Subsidiary in accordance with this
Agreement, the aggregate amount of loans outstanding pursuant to this clause (xxi), when taken
together with all Cotai Strip Investments made pursuant to subsection 7.3(viii), shall not, at any
time, exceed the aggregate amount of Cotai Strip Investments permitted to be made under such
subsection 7.3(viii) at such time; and”
(5) Subsection 7.5(viii) is hereby amended by deleting the “and” at the end thereof.
(6) Subsection 7.5(ix) is hereby amended by replacing the “.” at the end thereof with “; and”.
(7) A new subsection 7.5(x) is hereby added in numerical order as follows:
“(x) the Borrower may reimburse its Affiliates for any payments of Project Costs made by such
Affiliates in accordance with Section 3.11 of the Disbursement Agreement, subject to the conditions
of such reimbursements set forth therein.”
(d) Ferry Financing.
(1) A new subsection 7.3(xxii) is hereby added in numerical order as follows:
“(xxii) so long as no Potential Event of Default or Event of Default shall have occurred and
be continuing and subject to the terms of the Disbursement Agreement, the Loan Parties may make
Investments in the form of loans to Affiliates of the Loan Parties that are not Loan Parties,
provided that (a) such Indebtedness is incurred for the purpose of financing the
acquisition and/or equipping of ferry vessels to provide ferry service to or from Macau, (b) such
loans made by the Loan Parties shall be secured on a first-priority basis by the assets so acquired
by such Affiliates, and (c) the aggregate outstanding principal amount of such loans, together with
the maximum aggregate amount of all Contingent Obligations then outstanding to Affiliates pursuant
to subsection 7.4(viii), shall at no time exceed $175,000,000.”
(2) Subsection 7.4(v) is hereby replaced in its entirety as follows:
“(v) the Loan Parties may become liable for Contingent Obligations made on behalf of Excluded
Subsidiaries and Joint Ventures in an amount, when aggregated (without duplication) with: (a) the
amount of Investments made in Cash and Cash Equivalents pursuant to subsection 7.3(x)(a), (b) the
amount of Contingent Obligations made on behalf of Affiliates pursuant to subsection 7.4(viii), (c)
the amount of Investments made in the form of loans to Affiliates pursuant to subsection 7.3(xxii),
and (d) all
other Contingent Obligations incurred pursuant to this clause, not to exceed $300,000,000 at
any time, so long as both before and after giving effect to the incurrence of such Contingent
Obligation, no Potential Event of Default or Event of Default has occurred or is continuing;
provided that, notwithstanding the foregoing, the Loan Parties may not become liable for Contingent
Obligations made on behalf of Joint Ventures in excess of $50,000,000 in the aggregate;”
(3) Subsection 7.4(vi) is hereby amended to delete the “and” at the end thereof.
(4) Subsection 7.4(vii) is hereby amended to replace the “.” At the end thereof with “; and”.
(5) A new Subsection 7.4(viii) is hereby added in numerical order as follows:
“(viii) the Loan Parties may become and remain liable with respect to Contingent Obligations
made on behalf of Affiliates of the Loan Parties that are not Loan Parties, provided that
(a) such Contingent Obligations support Indebtedness incurred for the purpose of financing the
acquisition and/or equipping of ferry vessels to provide ferry service to or from Macau, (b) such
Indebtedness is not owed to Loan Parties or any Affiliate of any Loan Party, and (c) the maximum
aggregate liability, contingent or otherwise, of the Loan Parties in respect of all such Contingent
Obligations, together with all Investments made pursuant to subsection 7.3(xxii) then outstanding,
shall at no time exceed $175,000,000.”
(6) Subsection 7.10(xi) is hereby replaced in its entirety as follows:
“(xi) Investments permitted by subsection 7.3, Contingent Obligations permitted by subsection
7.4 and Restricted Payments permitted by subsection 7.5;”
(e) Four Seasons Macao Operation, Maintenance and Management Agreement
(1) The definition of “Four Seasons Macao Operation, Maintenance and Management Agreement” is
hereby amended by deleting the word “comparable” where it appears therein.
(2) Subsection 7.13A is hereby amended to replace “B, C or D below” with “B, C, D or F below”
and a new subsection 7.13F is hereby added as follows:
“F. Four Seasons Macao Operation, Maintenance and Management Agreement. The Company
and the Borrower shall not, and shall not permit any other Loan Party to, enter into any Four
Seasons Macao Operation, Maintenance and Management Agreement unless such agreement is on terms
satisfactory to the Administrative Agent, evidenced by the Administrative Agent’s prior written
consent, not to be unreasonably withheld or delayed after being afforded a reasonable period of
review.”
(f) Schedule 9.7. Schedule 9.7 is hereby amended to include thereon, or delete therefrom,
as applicable, the items listed on Exhibit A hereto in appropriate numerical order.
(g) Assignment Fee. Subsection 10.1B(i) is hereby amended to insert the words “(other than
assignments pursuant to the utilization of Section 10.1D in connection with the First Amendment)”
after the words “fee of $2,000 in respect of assignments” where it appears therein.
(h) In General. A new definition is hereby added in proper alphabetical order in Section
1.1 as follows:
“First Amendment” means the First Amendment to Credit Agreement and Disbursement Agreement,
dated as of March 5, 2007, among the Company, the Borrower and the Administrative Agent.”
(i) Disbursement Agreement Amendment. The Disbursement Agreement is hereby amended to give
effect to all amendments and modifications as set forth in the amendment attached hereto as
Exhibit B (the “Disbursement Agreement Amendment”), and the Administrative Agent is
hereby authorized to enter into any and all documentation, amendments or modifications of any Loan
documents necessary or advisable in connection with effecting the intent of such Disbursement
Agreement Amendment.
2. Repricing Amendments.
(a) Price Reduction. Upon the terms and subject to the conditions set forth herein and in
reliance on the representations and warranties of the Loan Parties set forth herein, the Lenders
hereby agree that notwithstanding the definition of “Applicable Margin” as set forth in the Credit
Agreement, the Applicable Margin with respect to each Class of Loans as to which this Section 2
becomes effective shall be:
(1) With respect to Term B Delayed Draw Loans, at all times from and after the Repricing
Effective Date (i) for Loans accruing interest as Base Rate Loans, 1.25%, and (ii) for Loans
accruing interest as Eurodollar Rate Loans, 2.25%.
(2) With respect to Term B Funded Loans, at all times from and after the Repricing Effective
Date (i) for Loans accruing interest as Base Rate Loans, 1.25%, and (ii) for Loans accruing
interest as Eurodollar Rate Loans, 2.25%.
(3) With respect to Local Term Loans, (i) until the commencement of the first Interest Period
following the Venetian Macao Completion Date, (A) for Loans accruing interest as Base Rate Loans,
1.25%, and (B) for Loans accruing interest as HIBOR Rate Loans, 2.25%; and (ii) from the
commencement of the first Interest Period following the Venetian Macao Completion Date, the
applicable percentage set forth below corresponding to the relevant Consolidated Leverage Ratio:
| Consolidated | Applicable Margin For Base Rate | Applicable Margin For HIBOR | ||
| Leverage Ratio | Local Term Loans | Local Term Loans | ||
Greater than 2.0:1.0 |
1.25% | 2.25% | ||
Greater than 1.5:1.0
but less than or
equal to 2.0:1.0 |
1.00% | 2.00% | ||
less than or equal to
1.5:1.0 |
0.75% | 1.75% |
(4) With respect to Revolving Loans (including Swing Line Loans), (i) until the commencement
of the first Interest Period following the Venetian Macao Completion Date, (A) for Swing Line Loans
and other Loans accruing interest as Base Rate Loans, 1.25%, and (B) for Loans accruing interest as
Eurodollar Rate Loans, 2.25%; (ii) from the commencement of the first Interest Period following the
Venetian Macao Completion Date, the applicable percentage set forth below corresponding to the
relevant Consolidated Leverage Ratio:
| Applicable Margin For Swing | Applicable Margin For | |||
| Consolidated | Line Loans and Base | Eurodollar | ||
| Leverage Ratio | Rate Revolving Loans | Rate Revolving Loans | ||
Greater than 2.0:1.0 |
1.25% | 2.25% | ||
Greater than 1.5:1.0
but less than or
equal to 2.0:1.0 |
1.00% | 2.00% | ||
less than or equal to
1.5:1.0 |
0.75% | 1.75% |
The Consolidated Leverage Ratio used to compute the Applicable Margins as set forth in clause
(3)(ii) and (4)(ii) shall be the Consolidated Leverage Ratio set forth in the Compliance
Certificate most recently delivered by the Borrower to the Administrative Agent. Changes in the
Applicable Margins as set forth in such clauses resulting from a change in the Consolidated
Leverage Ratio shall become effective upon delivery by the Borrower to the Administrative Agent of
a new Compliance Certificate pursuant to subsection 6.1(iv) of the Credit Agreement. If the
Borrower fails to deliver a Compliance Certificate within the time period for such delivery set
forth in subsection 6.1(iv) of the Credit Agreement (the last day of such period, the “Delivery
Date”), the Applicable Margin from and including each day subsequent to the Delivery Date but not
including the date the Borrower delivers to the Administrative Agent such Compliance Certificate
shall equal the highest Applicable Margin set forth above and from the date the Borrower delivers
such Compliance Certificate to and including the next Delivery Date, the Applicable Margin shall be
based on the Consolidated Leverage Ratio set forth in such Compliance Certificate.
(b) Prepayment Premium.
(1) A new definition is added to subsection 1.1 as follows:
““Repricing Transaction” means (i) the incurrence by the Borrower or any Loan Party of a new
tranche of replacement term loans or term loan commitments under this Agreement or any other
agreement (including by way of conversion of Term B Funded Loans, Term B Delayed Draw Loans, Term B
Delayed Draw Loan Commitments or any Series of New Term Loans into any such new tranche of
replacement term loans, but excluding any new term loans or term loan commitments under a permitted
FF&E Facility) (x) having an effective interest rate margin that is less than the Applicable Margin
for the
Term B Funded Loans, Term B Delayed Draw Loans, or Series of New Term Loans referenced in the
next clause, and (y) the proceeds of which are used to repay, in whole or in part, principal of
outstanding Term B Funded Loans, Term B Delayed Draw Loans or any Series of New Term Loans, or to
reduce outstanding Term B Delayed Draw Loan Commitments, it being understood that a conversion of
any such Loans or Commitments into any such new tranche of replacement term loans or term loan
commitments shall constitute a repayment of principal of such outstanding Term B Funded Loans, Term
B Delayed Draw Loans or New Term Loans or a reduction of outstanding Term B Delayed Draw Loan
Commitments, and/or (ii) any amendment, waiver or other modification to this Agreement which would
have the effect of reducing the Applicable Margin for Term B Funded Loans, Term B Delayed Draw
Loans or any Series of New Term Loans (other than, in each case, any such transaction or amendment
or modification accomplished together with the substantially concurrent refinancing of all Classes
of Loans hereunder).”
(2) If the amendments in this Section 2 become effective with respect to the Term B Funded
Loans, the following new subsection 2.4B(v) shall be added to the Credit Agreement as follows:
“(v) At the time of the effectiveness of any Repricing Transaction the proceeds of which are
used to repay, in whole or in part, principal of outstanding Term B Funded Loans on or prior to the
one year anniversary of the Repricing Effective Date (as defined in the First Amendment), the
Borrower agrees to pay to Administrative Agent, for the ratable account of each Lender with
outstanding Term B Funded Loans (including each Lender that withholds its consent to such Repricing
Transaction and is replaced or is removed as a Lender under subsection 10.6D), a fee in an amount
equal to 1.0% of the aggregate principal amount of all Term B Funded Loans held by such Lender and
outstanding on such date immediately prior to the effectiveness of such Repricing Transaction that
are so repaid. Such fee shall be due and payable upon the date of the effectiveness of such
Repricing Transaction.”
(3) If the amendments in this Section 2 become effective with respect to the Term B Delayed
Draw Loans, the following new subsection 2.4B(vi) (or, if the amendments set forth in this Section
2 do not become effective with respect to the Term B Funded Loans, 2.4B(v)) shall be added to the
Credit Agreement as follows:
“(vi) At the time of the effectiveness of any Repricing Transaction the proceeds of which are
used to repay, in whole or in part, principal of outstanding Term B Delayed Draw Loans or reduce
Term B Delayed Draw Loan Commitments on or prior to the one year anniversary of the Repricing
Effective Date (as defined in the First Amendment), the Borrower agrees to pay to Administrative
Agent, for the ratable account of each Lender with outstanding Term B Delayed Draw Loans or Term B
Delayed Draw Loan Commitments (including each Lender that withholds its consent to such Repricing
Transaction and is replaced or is removed as a Lender under subsection 10.6D), a fee in an amount
equal to 1.0% of the aggregate principal amount of all Term B Funded Loans and/or or Term B Delayed
Draw Loan Commitments held by such Lender and outstanding on such date immediately prior to the
effectiveness of such Repricing Transaction that are so repaid or reduced. Such fee shall be due
and payable upon the date of the effectiveness of such Repricing Transaction.”
3. Conditions to Effectiveness.
(a) The effectiveness of the amendments contained in Section 1 hereof, and in Sections 1 and 2
of the Disbursement Agreement Amendment, are conditioned upon satisfaction of the following
conditions precedent (the date on which all such conditions have been satisfied being referred to
herein as the “Amendment Effective Date”):
(1) the Administrative Agent shall have received signatures of Lenders comprising the
Requisite Lenders and shall have received counterparts of this Amendment signed by each Loan Party
and the Disbursement Agent;
(2) each of the representations and warranties in Section 4 below shall be true and correct in
all material respects on and as of the Amendment Effective Date;
(3) the Administrative Agent shall have received payment in immediately available funds of all
reasonable and documented expenses incurred by the Administrative Agent (including, without
limitation, reasonable and documented legal fees) then reimbursable under the Credit Agreement
and/or the Disbursement Agreement (including in connection with this Amendment and the documents
and transactions related hereto) and for which invoices have been presented on or before the
Amendment Effective Date;
(4) the Administrative Agent, the Disbursement Agent and the Lenders shall have received a
favorable written opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the Company,
as to the enforceability of this Amendment (including the Disbursement Agreement Amendment) and
otherwise in form and substance reasonably satisfactory to the Administrative Agent and its counsel
and dated as of the Amendment Effective Date; and
(5) the Administrative Agent shall have received such other documents, instruments,
certificates and approvals as it may reasonably request.
The Administrative Agent will notify the Borrower reasonably promptly upon the occurrence of the
Amendment Effective Date.
(b) The effectiveness of the amendments contained in Section 2 hereof are conditioned, with
respect to such amendments’ impact upon each individual Class of Loans, upon satisfaction of the
conditions set forth in Section 3(a) and the following additional conditions precedent (the date on
which the conditions set forth in both Sections 3(a) and 3(b) have been satisfied being referred to
herein as the “Repricing Effective Date”):
(1) the Administrative Agent shall have received signatures approving such amendments, with
respect to each affected Class of Loans as designated by the Borrower pursuant to clause (2) below,
of 100% of the Lenders (it being understood that such unanimous vote may be obtained following the
utilization by the Borrower of its option to cause the assignment of Loans pursuant to subsection
10.6D of the Credit Agreement);
(2) the Administrative Agent shall have received, at least two Business Days prior to the
Repricing Effective Date, a notice of the Borrower stating its designation of each Class of Loans
to which such amendments in Section 2 shall apply, which shall be countersigned by the
Administrative Agent as of the Repricing Effective Date, to the extent the required signatures to
the amendment have been obtained;
(3) the Administrative Agent shall have received payment in immediately available funds of all
reasonable and documented expenses incurred by the Administrative Agent (including, without
limitation, reasonable and documented legal fees) then reimbursable under the Credit Agreement
and/or the Disbursement Agreement (including in connection with this Amendment and the documents
and transactions related hereto) and for which invoices have been presented on or before the
Repricing Effective Date; and
(4) each of the representations and warranties in Section 4 below shall be true and correct in
all material respects on and as of the Repricing Effective Date.
4. Representations and Warranties. Each of the Company, the Borrower and each of the
Guarantors represents and warrants jointly and severally to the Administrative Agent, the
Disbursement Agent and the Lenders as follows:
(a) Authority. Each of the Company, the Borrower and each of the Guarantors has the
requisite corporate or other organizational power and authority to execute and deliver this
Amendment and to perform its obligations hereunder and under the Credit Agreement (as amended
hereby) and the Disbursement Agreement (as amended hereby). The execution, delivery and
performance by each of the Company, the Borrower and each of the Guarantors of this Amendment, and
the performance by each of the Company, the Borrower and each of the Guarantors of the Credit
Agreement (as amended hereby), the Disbursement Agreement (as amended hereby) and each other Loan
Document to which it is a party have been authorized by all necessary corporate or other
organizational action of such Person, and no other corporate or other organizational proceedings on
the part of each such Person is necessary to consummate such transactions.
(b) Enforceability. This Amendment has been duly executed and delivered on behalf of
each of the Company, the Borrower and each of the Guarantors. Each of this Amendment and, after
giving effect to this Amendment, the Credit Agreement, the Disbursement Agreement and the other
Loan Documents, (i) is the legal, valid and binding obligation of each Loan Party party hereto and
thereto, enforceable against such Loan Party in accordance with its terms, except as 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) and (ii) is in full force and effect. Neither the
execution, delivery or performance of this Amendment or the performance of the Credit Agreement (as
amended hereby) or the Disbursement Agreement (as amended hereby), nor the performance of the
transactions contemplated hereby or thereby, will adversely affect the validity, perfection or
priority of the Collateral Agent’s Lien on any of the Collateral or its ability to realize thereon.
This Amendment is effective to amend the Credit Agreement and the Disbursement Agreement as
provided therein.
(c) Representations and Warranties. After giving effect to this Amendment, the
representations and warranties contained in the Credit Agreement, the Disbursement Agreement and
the other Loan Documents (other than any such representations and warranties that, by their terms,
are specifically made as of a certain date) are true and correct in all material respects on and as
of the date hereof as though made on and as of the date hereof.
(d) No Conflicts. Neither the execution and delivery of this Amendment, nor the
consummation of the transactions contemplated hereby, nor the performance of and compliance with
the
terms and provisions hereof or of the Credit Agreement (as amended hereby) or the Disbursement
Agreement (as amended hereby) by any Loan Party will, at the time of such performance, (i) violate
or conflict with any provision of its certificate of formation or limited liability company
agreement or other governing documents of such Person, (ii) violate, contravene or materially
conflict with any Legal Requirement or Contractual Obligation (including, without limitation,
Regulation U), except for any violation, contravention or conflict which could not reasonably be
expected to have a Material Adverse Effect or (iii) result in or require the creation of any Lien
(other than those permitted by the Loan Documents) upon or with respect to its properties. No
consent or authorization of, filing with, notice to or other act by or in respect of, any
Governmental Instrumentality or any other Person is required in connection with the transactions
contemplated hereby, other than the post-effective notice to the Gaming Inspection and Coordination
Bureau required under the Gaming Sub-Concession Contract.
(e) No Default. After giving effect to this Amendment, no event has occurred and is
continuing that constitutes an Event of Default or Potential Event of Default.
5. Reaffirmation of Credit Support.
(a) Each of the Borrower and each Guarantor (each, individually, a “Credit Support
Party” and, collectively, the “Credit Support Parties”) has read this Amendment and
consents to the terms hereof and further hereby confirms and agrees that, notwithstanding the
effectiveness of this Amendment, the obligations of such Credit Support Party under, and the Liens
granted by such Credit Support Party as collateral security for the Indebtedness, obligations and
liabilities evidenced by the Credit Agreement and the other Loan Documents pursuant to, each of the
Loan Documents to which such Credit Support Party is a party shall not be impaired and each of the
Loan Documents to which such Credit Support Party is a party is, and shall continue to be, in full
force and effect and are hereby confirmed and ratified in all respects.
(b) Each Credit Support Party (other than the Borrower) acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Amendment, such Credit Support
Party is not required by the terms of the Credit Agreement or any other Loan Document to consent to
the amendments to the Credit Agreement or the Disbursement Agreement effected pursuant to this
Amendment and (ii) nothing in the Credit Agreement, this Amendment or any other Loan Document shall
be deemed to require the consent of such Credit Support Party to any future amendments to the
Credit Agreement or the Disbursement Agreement.
6. Reference to and Effect on Credit Agreement, Disbursement Agreement and other Loan
Documents.
(a) Upon and after the effectiveness of this Amendment, (i) each reference in the Credit
Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the
Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement”,
“thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and
be a reference to the Credit Agreement as amended hereby and (ii) each reference in the
Disbursement Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring
to the Disbursement Agreement, and each reference in the other Loan Documents to “the Disbursement
Agreement”, “thereunder”, “thereof” or words of like import referring to the Disbursement
Agreement,
shall mean and be a reference to the Disbursement Agreement as amended hereby. This Amendment
is a Loan Document.
(b) Except as specifically waived or amended above, the Credit Agreement, the Disbursement
Agreement and the other Loan Documents are and shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed. Without limiting the generality of the
foregoing, the Collateral Documents and all of the Collateral described therein do and shall
continue to secure the payment of all Obligations under and as defined therein.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of any Secured Party under any
of the Loan Documents, nor, except as expressly provided herein, constitute a waiver or amendment
of any provision of any of the Loan Documents.
7. Counterparts. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of any signature page to this Amendment by
facsimile shall be effective as delivery of a manually executed counterpart of this Amendment.
8. Severability. Any provision of this Amendment that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction. Any failure of the amendments set forth in Section 2 hereof, or the
failure of such amendments with respect to any specific Class or Classes of Loans, to become
effective shall in no way delay the effectiveness of, invalidate, or render unenforceable, the
amendments set forth in Section 1 hereof or the provisions of any other section of this Amendment.
9. Governing Law. This Amendment shall be governed by, and construed in accordance with,
the laws of the State of New York.
(signature pages follow)
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first written above.
| VENETIAN MACAU LIMITED, a corporation organized under the laws of the Macau Special Administrative Region of the People’s Republic of China |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Executive Vice President | |||
| VML US FINANCE LLC, a Delaware limited liability company |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Authorized Representative | |||
| VENETIAN COTAI LIMITED, a corporation organized under the laws of the Macau Special Administrative Region of the People’s Republic of China |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Authorized Representative | |||
| Acknowledged and Agreed by: VENETIAN MACAU FINANCE COMPANY, a Cayman Islands corporation |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Director | |||
| V-HK SERVICES LIMITED, a corporation organized under the laws of the Hong Kong Special Administrative Region of the People’s Republic of China |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Director | |||
| THE BANK OF NOVA SCOTIA, as Administrative Agent (and, with respect to the Disbursement Agreement Amendment, as Bank Agent) |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Director | |||
| THE BANK OF NOVA SCOTIA, as Disbursement Agent |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Director | |||
EXHIBIT A
SCHEDULE 9.7 AMENDMENTS
3.1.9
|
Delete limitation currently on the schedule | |
3.2.2 |
||
3.2.12
|
Delete limitation currently on the schedule | |
3.3.6(b)(ii) |
||
3.3.13
|
Delete limitation currently on the schedule | |
3.10
|
(keep language in existing Schedule 9.7, but change reference from “ten (10) days” to “thirty (30) days”) |
EXHIBIT B
DISBURSEMENT AGREEMENT AMENDMENT
