Exhibit 10.1
EXECUTION VERSION
FOURTH SUPPLEMENTAL AGREEMENT
DATED 15 FEBRUARY 2017
BETWEEN
MGM CHINA HOLDINGS LIMITED
MGM GRAND PARADISE, S.A.
MGM GRAND PARADISE (HK) LIMITED
SUPEREMPREGO LIMITADA
MGM - SECURITY SERVICES, LTD.
AND
BANK OF AMERICA, N.A.
as Facility Agent
relating to a credit agreement originally dated 27 July 2010,
as first amended and restated by a supplemental agreement dated 22 October 2012,
such amendments being effective as of 29 October 2012, as further amended and restated by a second
supplemental agreement dated 9 June 2015, such amendments being effective as of 12 June 2015 and
as further amended by a third supplemental agreement dated 2 February 2016, such amendments
being effective as of 2 February 2016
Allen & Overy
CONTENTS
| Clause | Page | |||||
1. | Interpretation | 2 | ||||
2. | Amendments | 2 | ||||
3. | Conditions Precedent | 2 | ||||
4. | Representations | 2 | ||||
5. | Guarantee | 3 | ||||
6. | Fees | 3 | ||||
7. | Indemnity | 3 | ||||
8. | Miscellaneous | 3 | ||||
9. | Governing Law | 4 | ||||
| Schedule | ||||||
1. | Amendments to the Third Amended Credit Agreement | 5 | ||||
Signatories | ||||||
THIS AGREEMENT is dated 15 February 2017 and made
BETWEEN:
| (1) | MGM CHINA HOLDINGS LIMITED(theCompany); |
| (2) | MGM GRAND PARADISE, S.A.(MGMGP); |
| (3) | MGM GRAND PARADISE (HK) LIMITED, SUPEREMPREGO LIMITADA and MGM - SECURITY SERVICES, LTD.as original guarantors (theOriginal Guarantors); and |
| (4) | BANK OF AMERICA, N.A.as facility agent for and on behalf of the other Finance Parties under and as defined in the Third Amended Credit Agreement defined below (in this capacity, theFacility Agent). |
BACKGROUND
| (A) | MGMGP, MGM Grand Paradise (HK) Limited and Superemprego Limitada entered into a HK$7,410,000,000 credit agreement dated 27 July 2010 (theExisting Credit Agreement). |
| (B) | On 2 June 2011 the Company acceded to the Existing Credit Agreement as an Additional Guarantor. |
| (C) | On 22 October 2012 MGMGP, the Company and the Facility Agent, amongst others, entered into a supplemental agreement (theFirst Supplemental Agreement) which amended and restated the Existing Credit Agreement (as amended by the First Supplemental Agreement, such amendments being effective as of 29 October 2012, theFirst Amended and Restated Credit Agreement). |
| (D) | On 6 February 2015, MGM Security Services, Ltd. acceded to the First Amended and Restated Credit Agreement as an Additional Guarantor. |
| (E) | On 9 June 2015, MGMGP, the Company and the Facility Agent, amongst others, entered into a second supplemental agreement (theSecond Supplemental Agreement) which amended and restated the First Amended and Restated Credit Agreement (as amended by the Second Supplemental Agreement, such amendments being effective as of 12 June 2015, theSecond Amended and Restated Credit Agreement). |
| (F) | On 2 February 2016, MGMGP, the Company and the Facility Agent, amongst others, entered into a third supplemental agreement (theThird Supplemental Agreement) which amended the Second Amended and Restated Credit Agreement (as amended by the Third Supplemental Agreement, such amendments being effective as of 2 February 2016, theThird Amended Credit Agreement). |
| (G) | The Facility Agent sent an email on 13 January 2017 to the Lenders, asking the Lenders to respond to the Company’s and MGMGP’s request letter dated 13 January 2017 (theAmendment Request Letter) that the Lenders consent to certain amendments to the Third Amended Credit Agreement described therein. |
| (H) | The Parties agree that on the Fourth Effective Date (as defined below) the Third Amended Credit Agreement will be amended on the terms, and subject to the conditions, of this Agreement. |
| (I) | Pursuant to clause 26.1 (Procedure) of the Third Amended Credit Agreement, the Majority Lenders (as defined in the Third Amended Credit Agreement) have consented to the amendments to the Third Amended Credit Agreement contemplated by this Agreement. Accordingly, the Facility Agent is authorised to execute this Agreement on behalf of the Finance Parties. |
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IT IS AGREED as follows:
| 1. | INTERPRETATION |
| 1.1 | Definitions |
| (a) | In this Agreement: |
Amended Credit Agreementmeans the Third Amended Credit Agreement as amended by this Agreement.
Fourth Effective Datemeans the date upon which the Facility Agent issues the Fourth Effective Date Notice pursuant to paragraph (b) of Clause 2 (Amendments).
Fourth Effective Date Noticehas the meaning given to that term in paragraph (b) of Clause 2 (Amendments).
| (b) | Capitalised terms defined in the Third Amended Credit Agreement have, unless expressly defined in this Agreement, the same meaning in this Agreement. |
| 1.2 | Construction |
The provisions of clause 1.2 (Construction), 1.4 (Third Parties) and 36 (Enforcement) of the Third Amended Credit Agreement apply to this Agreement as though they were set out in full in this Agreement except that references to the Third Amended Credit Agreement are to be construed as references to this Agreement.
| 2. | AMENDMENTS |
| (a) | Subject to paragraph (b) below, the Third Amended Credit Agreement will be amended from the Fourth Effective Date in the manner set out in the Schedule (Amendments to the Third Amended Credit Agreement). |
| (b) | The Third Amended Credit Agreement will not be amended by this Agreement unless the Facility Agent notifies the Company and each Lender that it has received all of the documents and evidence set out in Clause 3 (Conditions precedent) below in form and substance satisfactory to the Facility Agent (theFourth Effective Date Notice). The Facility Agent must issue the Fourth Effective Date Notice as soon as reasonably practicable. |
| 3. | CONDITIONS PRECEDENT |
The conditions precedent to be delivered to the Facility Agent by the Company in accordance with paragraph (b) of Clause 2 (Amendments) above are:
| (a) | an executed copy of this Agreement; and |
| (b) | evidence that all fees, costs and expenses then due and payable from the Company in connection with this Agreement and the amendments contemplated herein have been paid. |
| 4. | REPRESENTATIONS |
Each Obligor makes the representations and warranties set out in clause 16 (Representations and Warranties) of the Third Amended Credit Agreement on the date of this Agreement and on the Fourth Effective Date, in each case as if references to the Third Amended Credit Agreement are references to the Amended Credit Agreement with reference to the facts and circumstances then
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existing and in each case as if references to the Second Effective Date are references to the Fourth Effective Date.
| 5. | GUARANTEE |
Each Obligor, with effect on and from the Fourth Effective Date:
| (a) | confirms its acceptance of the Amended Credit Agreement; |
| (b) | agrees that it is bound as an Obligor by the terms of the Amended Credit Agreement; and |
| (c) | (if a Guarantor) confirms that the guarantee given by it or created under a Finance Document will: |
| (i) | continue in full force and effect; and |
| (ii) | extend to the liabilities and obligations of the Obligors to the Finance Parties under the Finance Documents (including the Amended Credit Agreement). |
| 6. | FEES |
By no later than the Fourth Effective Date, the Company shall pay to the Facility Agent (for the account of each relevant Lender) to the account notified to the Company by the Facility Agent for this purpose, a fee of:
| (a) | (in respect of each Lender that provided its consent to the Facility Agent pursuant to the Amendment Request Letter on or before 5:00 p.m. (Hong Kong time) on 7 February 2017) 0.15 per cent. flat; and |
| (b) | (in respect of each Lender that provided its consent to the Facility Agent pursuant to the Amendment Request Letter after 5:00 p.m. (Hong Kong time) on 7 February 2017 and on or prior to 5:00 p.m. (Hong Kong time) on 13 February 2017) 0.075 per cent. flat, |
in each case, on the aggregate amount of that Lender’s Original Term Loan Commitment and Revolving Credit Commitment immediately prior to the Fourth Effective Date.
| 7. | INDEMNITY |
Without prejudice to any indemnity provided under the Finance Documents, each Obligor must, jointly and severally and immediately on demand by any Party (other than an Obligor), indemnify that Party against any cost (including, without limitation, legal costs), expense, loss or liability which that Party incurs in connection with, or as a consequence of, entering into this Agreement.
| 8. | MISCELLANEOUS |
| (a) | No part of this Agreement is intended to or will create a registrable Security Interest. |
| (b) | Each of this Agreement and the Amended Credit Agreement is a Finance Document. |
| (c) | Subject to the terms of this Agreement, the Third Amended Credit Agreement will remain in full force and effect and, from the Fourth Effective Date, the Third Amended Credit Agreement and this Agreement will be read and construed as one document. |
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| 9. | GOVERNING LAW |
This Agreement and anynon-contractual obligations arising out of or in connection with it are governed by English law.
THIS AGREEMENT has been entered into on the date stated at the beginning of this Agreement.
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SCHEDULE
AMENDMENTS TO THE THIRD AMENDED CREDIT AGREEMENT
Clause 18.3 (Leverage Ratio) is to be amended by deleting the table of number and figures contained therein and replacing it with the following:
Accounting Date | Leverage Ratio | |
| 31 March 2016 and 30 June 2016 | 4.50 to 1.00 | |
| 30 September 2016, 31 December 2016, 31 March 2017, 30 June 2017, 30 September 2017 and 31 December 2017 | 6.00 to 1.00 | |
| 31 March 2018 | 5.50 to 1.00 | |
| 30 June 2018 | 5.00 to 1.00 | |
| Each Accounting Date occurring on and after 30 September 2018 | 4.50 to 1.00 | |
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SIGNATORIES
| Company |
| For and on behalf of |
| MGM CHINA HOLDINGS LIMITED |
| By: |
| /s/ Grant R. Bowie | /s/ Antonio Menano | |||
| Grant R. Bowie | Antonio Menano | |||
Fourth Supplemental Agreement
| MGMGP |
| For and on behalf of |
| MGM GRAND PARADISE, S.A. |
| By: |
| /s/ Grant R. Bowie | /s/ Antonio Menano | |||
| Grant R. Bowie | Antonio Menano | |||
Fourth Supplemental Agreement
| Original Guarantor |
| For and on behalf of |
| MGM GRAND PARADISE (HK) LIMITED |
| By: |
| /s/ Grant R. Bowie | /s/ Antonio Menano | |||
| Grant R. Bowie | Antonio Menano | |||
Fourth Supplemental Agreement
| Original Guarantor |
| For and on behalf of |
| SUPEREMPREGO LIMITADA |
| By: |
| /s/ Grant R. Bowie | /s/ Antonio Menano | |||
| Grant R. Bowie | Antonio Menano | |||
Fourth Supplemental Agreement
| Original Guarantor |
| For and on behalf of |
| MGM - SECURITY SERVICES, LTD. |
| By: |
| /s/ Grant R. Bowie | /s/ Antonio Menano | |||
| Grant R. Bowie | Antonio Menano | |||
Fourth Supplemental Agreement
| Facility Agent |
| BANK OF AMERICA, N.A. |
| By: |
| /s/ Wynnie Lam |
| Name: Wynnie Lam |
| Title: Vice President |
Fourth Supplemental Agreement