THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
10.1
THIRD
AMENDMENT TO
AMENDED
AND RESTATED CREDIT AGREEMENT
THIS
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Third Amendment”),
dated as of September 17, 2008 and effective as of the Effective Date (as
hereinafter defined), is made and entered into among XXXX 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 Amended and
Restated Credit Agreement, dated as of August 15, 2006 (as amended by that
certain First Amendment to Amended and Restated Credit Agreement, dated as of
April 9, 2007, and that certain Second Amendment to Amended and Restated Credit
Agreement, dated as of October 31, 2007, the “Credit Agreement”),
among the Borrower, Deutsche Bank Trust Company Americas, as Administrative
Agent, issuing lender and swing line lender, 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, X.X. Xxxxxx Securities Inc., as arranger
and joint book running manager, JPMorgan Chase Bank, N.A., as joint
documentation agent, SG Americas Securities, LLC, as arranger and joint book
running manager, Societe Generale, as joint documentation agent, Bank of
Scotland, as managing agent, HSH Nordbank AG, as managing agent, the Royal Bank
of Scotland PLC, as managing agent, Wachovia Bank, as managing agent, and the
several banks and other financial institutions or entities from time to time
parties thereto as lenders (the “Lenders”).
B. In
connection with the Credit Agreement, each of 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”),
Kevyn, LLC, a Nevada limited liability company (“Kevyn”), Las Vegas
Jet, LLC, a Nevada limited liability company (“Las Vegas Jet”), Wynn
Resorts Holdings, LLC, a Nevada limited liability company (“Wynn Resorts
Holdings”), and Wynn Completion Guarantor, LLC, a Nevada limited
liability company (“Completion Guarantor”
and together with Capital Corp., Show Performers, Wynn Golf, Xxxx Sunrise, World
Travel, Kevyn, Las Vegas Jet and Wynn Resorts Holdings, the “Wynn Amendment
Parties”), have executed certain Loan Documents (as defined in the Credit
Agreement).
C. The
Borrower has requested that the Lenders agree, subject to the conditions and on
the terms set forth in this Third Amendment, to amend certain provisions of the
Credit Agreement in order to, among other things, permit the Borrower to incur
an incremental term
loan
facility in the amount of $150,000,000 and provide greater flexibility with
respect to the required financial performance of the
Borrower.
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 Third
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 Third
Amendment.
2.
Amendments.
(a) The
definition of “Initial Phase II Calculation Date” in Section 1.1 of the Credit
Agreement is hereby amended by replacing the word “first”, where such word
appears therein, with the word “second”.
(b) Section
1.3(b) of the Credit Agreement is hereby amended by replacing the phrase “ending on the Initial Phase II
Calculation Date” in each place where it appears therein, with the phrase
“beginning immediately after the
Phase II Opening Date”.
(c) Section
2.26(a) of the Credit Agreement is hereby amended by deleting the parenthetical
reading “(the “New Term Loan
Commitments”)” and inserting the following new sentence immediately prior
to the first sentence of Section 2.26(a):
“On or prior to December 31, 2008,
the Borrower may, by
written notice to the Administrative Agent, request the establishment of
one or more new term loan commitments (any term loan commitments established
pursuant to this Section 2.26 being referred to as “New Term Loan Commitments”)
to be funded on or prior to December 31, 2008, in an amount
not in excess of $150,000,000 in the aggregate and not less than $50,000,000
individually (or such lesser amount which shall be approved by the
Administrative Agent) or an integral multiple of $5,000,000 in excess
thereof.”
(c) Section
2.26(d) of the Credit Agreement is hereby amended by replacing the words “first
sentence”, where such words appear therein, with the words “first two
sentences”.
(d) Section
4.16 of the Credit Agreement is hereby amended by (i) replacing the word
“extension”, where such word appears therein, with the word “extensions” and
(ii) adding the
2
following
immediately after words “general corporate purposes”, where such words appear
therein:
“;
provided that the proceeds of any New Term Loans made on or prior to December 31, 2008 shall be used
for the payment of Project Costs”.
(e) Section
7.1(b) of the Credit Agreement is hereby amended by replacing the required
Consolidated Leverage Ratio set forth therein for the periods ending on or prior
to June 30, 2010, with the following:
|
Quarterly
Date
|
Consolidated
Leverage
Ratio
|
|||
|
Quarterly
Dates from the Initial Phase II Calculation Date
through and including June 30, 2009
|
8.25:1
|
|||
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Quarterly
Date ending on September 30, 2009 (if different than the Initial Phase II
Calculation Date)
|
7.75:1
|
|||
|
Quarterly
Date ending on December 31, 2009
|
7.50:1
|
|||
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Quarterly
Date ending on March 31, 2010
|
6.75:1
|
|||
|
Quarterly
Date ending on June 30, 2010
|
6.25:1
|
(f)
Section 7.1(c) of the Credit Agreement is hereby amended by
replacing the required Consolidated Interest Coverage Ratio for the periods
ending on the Quarterly Dates from and after December 31, 2008 through and
including September 30, 2009, with the following:
|
Quarterly
Date
|
Consolidated
Interest
Coverage
Ratio
|
|||
|
Quarterly
Date ending on December 31, 2008
|
1.40:1
|
|||
|
Quarterly
Dates from and after March 31, 2009 but prior to the Initial Phase II
Calculation Date
|
1.35:1
|
|||
|
Quarterly
Dates from and after the Initial Phase II Calculation Date through and
including September 30, 2009
|
1.75:1
|
3.
Representations and
Warranties. To induce the Lenders and the Administrative Agent
to agree to this Third Amendment, the Borrower represents to the Administrative
Agent and the Lenders that as of the date hereof:
(a) each
of the Borrower and each of the Wynn Amendment Parties has all power and
authority to enter into this Third Amendment and to carry out the transactions
contemplated hereby, and to perform its obligations hereunder or in respect
hereof;
3
(b) the
execution and delivery of this Third Amendment and the performance of the
obligations of the Borrower and each of the Wynn Amendment Parties hereunder or
in respect hereof have been duly authorized by all necessary action on the part
of the Borrower and such Wynn Amendment Party;
(c) the
execution and delivery of this Third and the performance of the obligations of
the Borrower and each of the Wynn Amendment Parties hereunder or in respect
hereof 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 such 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) this
Third Amendment has been duly executed and delivered by the Borrower and each of
the Wynn Amendment Parties and the Credit Agreement and the other Loan
Documents, as amended by this Third Amendment, are the legal, valid and binding
obligations of the Borrower and each of the Wynn Amendment Parties party
thereto, 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 this Third Amendment, no event has occurred and is continuing
or will result from the execution and delivery of this Third Amendment, that
would constitute a Default or an Event of Default;
(f) since
the Amended and Restated Effective Date (as defined in the Credit Agreement), 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 or any of the Wynn
Amendment Parties in or pursuant to the Loan Documents to which such entity 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.
4.
Effectiveness of this Third
Amendment. This Third Amendment shall be effective on the date
(the “Effective
Date”) upon which (a) the Required Lenders shall have consented to this
Third Amendment and (b) the Borrower, the Wynn Amendment Parties and the
Administrative Agent, on behalf of the Lenders, shall have executed this Third
Amendment.
4
5.
Acknowledgments. By
executing this Third Amendment, each of the Xxxx Amendment Parties (other than
Xxxx Resorts Holdings and Completion Guarantor) (a) consents to this Third
Amendment, (b) acknowledges that notwithstanding the execution and delivery
of this Third Amendment or any prior amendment, the obligations of each of the
Wynn Amendment Parties under the Guarantee are not impaired or affected (except
as provided for in this Third Amendment) and the Guarantee continues in full
force and effect and (c) affirms and ratifies the Guarantee. By
executing this Third Amendment, the Borrower and each of the Wynn Amendment
Parties (other than Completion Guarantor) consents to this Third Amendment,
(b) acknowledges that notwithstanding the execution and delivery of this
Third Amendment or any prior amendment, the obligations of the Borrower and each
of the Wynn Amendment Parties under the Security Documents to which it is a
party (other than the Guarantee) are not impaired or affected (except as
provided for in this Third Amendment) and such Security Documents continue in
full force and effect and (c) affirms and ratifies such Security
Documents. By executing this Third Amendment, Completion Guarantor
(a) consents to this Third Amendment, (b) acknowledges that
notwithstanding the execution and delivery of this Third Amendment or any prior
amendment, the obligations of Completion Guarantor under the Completion Guaranty
are not impaired or affected (except as provided for in this Third Amendment)
and the Completion Guaranty continues in full force and effect and
(c) affirms and ratifies the Completion Guaranty.
6.
Miscellaneous. THIS THIRD AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF (OTHER
THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW). This Third Amendment may be executed in one or more
counterparts and when signed by all of the parties listed below shall constitute
a single binding agreement. Delivery of an executed counterpart
hereof by facsimile transmission shall be effective as delivery of a manually
executed counterpart. Except as amended, 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 Third Amendment shall be deemed a
“Loan Document” as defined in the Credit Agreement. Section 10.12 of
the Credit Agreement shall apply to this Third Amendment and all past and future
amendments to the Credit Agreement and other Loan Documents as if expressly set
forth therein.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
5
IN
WITNESS WHEREOF, the parties have caused this Third 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 Xxxxxx
|
By:
|
Wynn
Resorts, Limited,
|
|||||||||
|
Name:
|
Xxxx
Xxxxxx
|
a
Nevada corporation,
|
||||||||||
|
Title:
|
Chief
Financial Officer and Treasurer
|
its
sole member
|
||||||||||
|
By:
|
/s/
Xxxx Xxxxxx
|
|||||||||||
|
Name:
|
Xxxx
Xxxxxx
|
|||||||||||
|
Title:
|
Chief
Financial Officer and 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,
|
By:
|
Wynn
Resorts, Limited,
|
|||||||||
|
a
Nevada corporation,
|
a
Nevada corporation,
|
|||||||||||
|
its
sole member
|
its
sole member
|
|||||||||||
|
By:
|
/s/
Xxxx Xxxxxx
|
By:
|
/s/
Xxxx Xxxxxx
|
|||||||||
|
Name:
|
Xxxx
Xxxxxx
|
Name:
|
Xxxx
Xxxxxx
|
|||||||||
|
Title:
|
Chief
Financial Officer and Treasurer
|
Title:
|
Chief
Financial Officer and Treasurer
|
|||||||||
[Signature
Page to Third Amendment to
Xxxx
Las Vegas Amended and Restated Credit Agreement]
|
LAS
VEGAS JET, LLC,
|
WWYNN
SHOW PERFORMERS, LLC,
|
|||||||||||
|
a
Nevada limited liability company
|
a
Nevada limited liability company
|
|||||||||||
|
By:
|
Xxxx
Las Vegas, 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 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,
|
By:
|
Wynn
Resorts, Limited,
|
|||||||||
|
a
Nevada corporation,
|
a
Nevada corporation,
|
|||||||||||
|
its
sole member
|
its
sole member
|
|||||||||||
|
By:
|
/s/
Xxxx Xxxxxx
|
By:
|
/s/
Xxxx Xxxxxx
|
|||||||||
|
Name:
|
Xxxx
Xxxxxx
|
Name:
|
Xxxx
Xxxxxx
|
|||||||||
|
Title:
|
Chief
Financial Officer and Treasurer
|
Title:
|
Chief
Financial Officer and Treasurer
|
|||||||||
|
KEVYN,
LLC,
|
XXXX
LAS VEGAS CAPITAL CORP.,
|
|||||||||||
|
a
Nevada limited liability company
|
a
Nevada corporation
|
|||||||||||
|
By:
|
Xxxx
Las Vegas, LLC,
|
By:
|
/s/
Matt Maddox__________
|
|||||||||
|
a
Nevada limited liability company,
|
Name:
|
Xxxx
Xxxxxx
|
||||||||||
|
its
sole member
|
Title:
|
Chief
Financial Officer and Treasurer
|
||||||||||
|
By:
|
Xxxx
Resorts Holdings, LLC,
|
|||||||||||
|
a
Nevada limited liability company,
|
||||||||||||
|
its
sole member
|
||||||||||||
|
By:
|
Wynn
Resorts, Limited,
|
|||||||||||
|
a
Nevada corporation,
|
||||||||||||
|
its
sole member
|
||||||||||||
|
By:
|
/s/
Xxxx Xxxxxx
|
|||||||||||
|
Name:
|
Xxxx
Xxxxxx
|
|||||||||||
|
Title:
|
Chief
Financial Officer and Treasurer
|
|||||||||||
[Signature
Page to Third Amendment to
Xxxx
Las Vegas Amended and Restated Credit Agreement]
|
XXXX
RESORTS HOLDINGS, LLC
|
|||||||
|
a
Nevada limited liability company
|
|||||||
|
By:
|
Wynn
Resorts, Limited,
|
||||||
|
a
Nevada corporation,
|
|||||||
|
its
sole member
|
|||||||
|
By:
|
/s/
Matt Maddox_________________
|
||||||
|
Name:
|
Xxxx
Xxxxxx
|
||||||
|
Title:
|
Chief
Financial Officer and Treasurer
|
||||||
|
XXXX
COMPLETION GUARANTOR, LLC
|
||||||||||||
|
a
Nevada limited liability company
|
||||||||||||
|
By:
|
Xxxx
Las Vegas, LLC,
|
|||||||||||
|
a
Nevada limited liability company,
|
||||||||||||
|
its
sole member
|
||||||||||||
|
By:
|
Xxxx
Resorts Holdings, LLC,
|
|||||||||||
|
a
Nevada limited liability company,
|
||||||||||||
|
its
sole member
|
||||||||||||
|
By:
|
Wynn
Resorts, Limited,
|
|||||||||||
|
a
Nevada corporation,
|
||||||||||||
|
its
sole member
|
||||||||||||
|
By:
|
/s/
Xxxx Xxxxxx
|
|||||||||||
|
Name:
|
Xxxx
Xxxxxx
|
|||||||||||
|
Title:
|
Chief
Financial Officer and Treasurer
|
|||||||||||
[Signature
Page to Third Amendment to
Xxxx
Las Vegas Amended and Restated Credit Agreement]
|
DEUTSCHE
BANK TRUST COMPANY
|
|||||||||
|
AMERICAS,
as Administrative Agent on
|
|||||||||
|
behalf
of the Lenders
|
|||||||||
|
By:
|
/s/
Xxxx Xxx Xxxxx
|
||||||||
|
Name:
|
Xxxx
Xxx Xxxxx
|
||||||||
|
Title:
|
Managing
Director
|
||||||||
|
By:
|
/s/
Xxxx Xxxxxxxxx
|
||||||||
|
Name:
|
Xxxx
Xxxxxxxxx
|
||||||||
|
Title:
|
Vice
President
|
||||||||
[Signature
Page to Third Amendment to
Xxxx
Las Vegas Amended and Restated Credit Agreement]
