FOURTH AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.1
FOURTH
AMENDMENT TO
THIS
FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Fourth Amendment”), dated as
of June 30, 2006, 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, ▇▇▇▇▇▇▇
& Co. Inc., as arranger and joint book running manager, Bear ▇▇▇▇▇▇▇
Corporate Lending Inc., as joint documentation agent, ▇.▇. ▇▇▇▇▇▇ 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, each of Wynn Las Vegas Capital Corp.,
a
Nevada corporation (“Capital Corp.”), Wynn Show Performers, LLC, a Nevada
limited liability company (“Show Performers”), ▇▇▇▇ Golf, LLC, a Nevada
limited liability company (“▇▇▇▇ Golf”), ▇▇▇▇ 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”), and Las Vegas Jet, LLC, a Nevada limited
liability company (“Las Vegas Jet” and together with Capital Corp., Show
Performers, ▇▇▇▇ Golf, ▇▇▇▇ Sunrise, World Travel, Kevyn, Wynn Resorts Holdings,
LLC, a Nevada limited liability company, and Wynn Completion Guarantor, LLC,
a
Nevada limited liability company, the “Wynn Amendment Parties”), have
executed certain Loan Documents.
C. The
Borrower has requested that the Lenders agree, subject to the conditions and
on
the terms set forth in this Fourth Amendment, to amend certain provisions of
the
Credit Agreement.
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 Fourth
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 Fourth
Amendment.
2. Amendments.
(a) The
definition of
“Consolidated Total Debt” is deleted from Section 1.1 of the Credit Agreement
and replaced with the following:
“Consolidated
Total Debt”: at any date, an aggregate amount equal to (a) the aggregate
principal amount of all Indebtedness of the Borrower and its Subsidiaries at
such date less (b) an amount equal to A plus B less C
less D (in each case as defined below), in each
case determined on a
consolidated basis in accordance with GAAP.
For
purposes of the definition of Consolidated Total Debt at any
date:
A
= the aggregate amount of cash and
Cash Equivalents of the Borrower and the other Loan Parties on such date on
deposit in an Account with respect to which the Secured Parties have a perfected
first priority Lien securing the Obligations pursuant to a Control
Agreement,
B
= the
aggregate amount of cash and Cash Equivalents of the Borrower and the other
Loan
Parties on such date on deposit in the 2014 Notes Proceeds Account,
C
= to
the extent included in A above, cage cash related to casino operations in an
amount up to $16,000,000 (or from and after the Phase II Opening Date,
$20,000,000), and
D
= the
aggregate amount of cash and Cash Equivalents of the Borrower and the other
Loan
Parties on such date on deposit in each of the Completion Guaranty Deposit
Account and the Project Liquidity Reserve Account.
(b) Section
7.1(d) of the Credit
Agreement is amended by deleting the ratio “2.25:1” as used in the table therein
and replacing such ratio with the ratio “2.00:1”.
3. Representations
and Warranties.
To
induce the
Lenders to agree to this Fourth 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 Fourth Amendment, and to carry out the transactions contemplated
by, and to perform its obligations under or in respect of, this Fourth
Amendment;
(b) the
execution and delivery of this Fourth Amendment and the performance of the
obligations of the Borrower and each of the Wynn Amendment Parties under or
in
respect of this Fourth Amendment 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 this Fourth Amendment and the performance of the
obligations of the Borrower and each of the Wynn Amendment Parties under or
in
respect of this Fourth Amendment 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) this
Fourth Amendment has been duly executed and delivered by the Borrower and each
of the Wynn Amendment Parties, is the legal, valid and binding obligation of
the
Borrower and each of the Wynn Amendment Parties, enforceable in accordance
with
its 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 Fourth Amendment, no event has occurred and is continuing
or will result from the execution and delivery of this Fourth Amendment 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.
4. Effectiveness
of this Fourth Amendment.
This
Fourth
Amendment shall be effective only if and when executed by the Borrower, the
Wynn
Amendment Parties and the Administrative Agent, on behalf of the
Lenders.
5. Acknowledgments.
By
executing
this Fourth Amendment, each of the Wynn Amendment Parties (a) consents to
this Fourth Amendment, (b) acknowledges that, notwithstanding the execution
and delivery of this Fourth Amendment, the obligations of each of the Wynn
Amendment Parties under the Guarantee, the Completion Guaranty Collateral
Account Agreement, the Completion Guaranty and the Security Agreement are not
impaired or affected, and the Guarantee, the Completion Guaranty Collateral
Account Agreement, the Completion Guaranty and the Security Agreement continue
in full force and effect, and (c) affirms and ratifies, to the extent it is
a party thereto, the Guarantee, the Completion Guaranty Collateral Account
Agreement, the Completion Guaranty and the Security Agreement.
6. Miscellaneous.
THIS
FOURTH
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 SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW). This Fourth 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 Fourth Amendment shall be deemed a
“Loan Document” as defined in the Credit Agreement. Section 10.12 of the
Credit Agreement shall apply to this Fourth 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]
IN
WITNESS WHEREOF, the parties have caused this Fourth 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.
|
WYNN
LAS VEGAS, LLC,
a
Nevada limited liability company
By: ▇▇▇▇
Resorts Holdings, LLC,
a
Nevada limited liability company,
its
sole member
By: Wynn
Resorts, Limited,
a
Nevada corporation,
its
sole member
By:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
President
|
▇▇▇▇
GOLF, LLC,
a
Nevada limited liability company
By: Wynn
Las Vegas, LLC,
a
Nevada limited liability company,
its
sole member
By: ▇▇▇▇
Resorts Holdings, LLC,
a
Nevada limited liability company, its sole member
By: Wynn
Resorts, Limited, a Nevada corporation, its sole member
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
President
|
|
▇▇▇▇
SUNRISE, LLC,
a
Nevada limited liability company
By: ▇▇▇▇
Las Vegas, LLC,
a
Nevada limited liability company,
its
sole member
By: ▇▇▇▇
Resorts Holdings, LLC,
a
Nevada limited liability company, its sole member
By: Wynn
Resorts, Limited, a Nevada corporation, its sole member
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
President
|
WORLD
TRAVEL, LLC,
a
Nevada limited liability company
By: ▇▇▇▇
Las Vegas, LLC,
a
Nevada limited liability company,
its
sole member
By: ▇▇▇▇
Resorts Holdings, LLC,
a
Nevada limited liability company, its sole member
By: Wynn
Resorts, Limited, a Nevada corporation, its sole member
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
President
|
|
LAS
VEGAS JET, LLC,
a
Nevada limited liability company
By: Wynn
Las Vegas, LLC,
a
Nevada limited liability company,
its
sole member
By: ▇▇▇▇
Resorts Holdings, LLC,
a
Nevada limited liability company, its sole member
By: Wynn
Resorts, Limited, a Nevada corporation, its sole
member
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
President
|
▇▇▇▇
SHOW PERFORMERS, LLC,
a
Nevada limited liability company
By: ▇▇▇▇
Las Vegas, LLC,
a
Nevada limited liability company,
its
sole member
By: ▇▇▇▇
Resorts Holdings, LLC,
a
Nevada limited liability company, its sole member
By: Wynn
Resorts, Limited, a Nevada corporation, its sole member
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
President
|
|
WYNN
LAS VEGAS CAPITAL CORP.,
a
Nevada corporation
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
President
|
KEVYN,
LLC,
a
Nevada limited liability company
By: ▇▇▇▇
Las Vegas, LLC,
a
Nevada limited liability company,
its
sole member
By: ▇▇▇▇
Resorts Holdings, LLC,
a
Nevada limited liability company, its sole member
By: Wynn
Resorts, Limited, a Nevada corporation, its sole member
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
President
|
|
▇▇▇▇
RESORTS HOLDINGS, LLC,
a
Nevada limited liability company
By: Wynn
Resorts, Limited, a Nevada corporation,
its
sole member
By:
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
President
|
▇▇▇▇
COMPLETION GUARANTOR, LLC,
a
Nevada limited liability company
By: ▇▇▇▇
Las Vegas, LLC, a Nevada limited
liability
company, its sole
member
By: ▇▇▇▇
Resorts Holdings,
LLC,
a
Nevada limited liability company, its
sole member
By: Wynn
Resorts, Limited, a
Nevada corporation,
its sole member
By:
/s/
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Title:
President
|
DEUTSCHE
BANK TRUST COMPANY
AMERICAS,
as the Administrative Agent
on
behalf
of the Lenders
By:
/s/ ▇▇▇▇▇▇
▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Director
By:
/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Assistant Vice President