Exhibit 10.1
SECOND AMENDMENT TO
CREDIT AGREEMENT AND LIMITED WAIVER
THIS SECOND AMENDMENT TO CREDIT AGREEMENT AND LIMITED WAIVER (this
"Second Amendment"), dated as of May 3, 2004, is made and entered into among
WYNN LAS VEGAS, LLC, a Nevada limited liability company (the "Borrower"), the
GUARANTORS 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 October 30, 2002 as amended by that
certain First Amendment to Credit Agreement and Other Loan Documents dated as
of May 28, 2003 (as further 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, joint book running
manager and syndication agent, Bear, Stearns & Co. Inc., as arranger and joint
book running manager, Bear Stearns Corporate Lending Inc., as joint
documentation agent, Dresdner Bank AG, New York and Grand Cayman Branches, as
arranger and joint documentation agent, JPMorgan Chase Bank, as joint
documentation agent, and the several banks and other financial institutions or
entities from time to time parties thereto (the "Lenders").
B. 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 and grant certain waivers under the
Disbursement Agreement, in each case as set forth below.
C. The Lenders are willing to agree to such amendments and waivers,
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 and the Lenders and, with respect to Section 5 only, the Guarantors,
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. Release of Phase II Land.
(a) Section 1 of the Credit Agreement is amended as follows:
(i) The definition of "Entertainment Facility" set forth in
Section 1 of the Credit Agreement is amended by deleting the words "and the
Phase II Land" from the second line thereof.
(ii) Concurrently with the Disposition of the Phase II Land
pursuant to Section 7.5(m) of the Credit Agreement, the definition of "Phase
II Land" is amended by replacing the word "Valvino" with the word "Landco".
(b) Section 7.5(m) of the Credit Agreement is deleted in its entirety
and replaced with the following:
(m) Valvino shall be permitted to distribute or otherwise
Dispose of the Phase II Land (whether directly or indirectly
through one or more Affiliates) to a Wholly-Owned Subsidiary
of Wynn Resorts (such Wholly-Owned Subsidiary of Wynn
Resorts, "Landco"), and the Lenders hereby consent to such
Disposition, on the conditions that:
(i) (A) no Default or Event of Default has occurred
and is continuing at the time of such Disposition and (B)
such Disposition is permitted under the other Financing
Agreements;
(ii) during the period commencing on April 1, 2004
and ending concurrently with such Disposition the Borrower
shall have received and deposited into the Company's Funds
Account aggregate net cash capital contributions from any
Person(s) other than another Loan Party (except to the
extent another Loan Party is acting as an intermediary for
purposes of contributing equity capital contributions from
such other Persons) in an amount not less than $137,500,000;
provided that such amount shall be reduced to $114,500,000
to the extent the Additional Land is contributed during such
period to Wynn Resorts Holdings or the Borrower as a capital
contribution;
(iii) concurrently with such Disposition Landco and
such Persons that collectively directly own 100% of the
Capital Stock of Landco (such Person or Persons, who shall
be directly or indirectly Wholly-Owned Subsidiaries of Wynn
Resorts, collectively, "Landco Parent") shall have executed
a pledge agreement in form and substance reasonably
acceptable to the Administrative Agent pursuant to which,
among other things, Landco Parent shall have granted to the
Administrative Agent, for the benefit of the Secured
Parties, a perfected first priority security interest in
100% of the Capital Stock of Landco;
(iv) the Valvino Water Permit Transfer shall have
occurred;
(v) at the time of such Disposition, no portion of
the Entertainment Facility or any other improvements related
to the Wynn Las Vegas hotel and casino (other than the Phase
II Building, the Employee Parking Lot and the Driving Range)
are located on the Phase II Land; and
(vi) the Borrower, Landco and Landco Parent shall
have delivered to the Administrative Agent legal opinions
relating to the matters described in clause (iii) above,
which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative
Agent.
Upon satisfaction of the foregoing conditions, the
Administrative Agent shall execute and deliver to Valvino
such documents and instruments, including UCC-3 termination
statements and deeds of reconveyance, all as may be
reasonably necessary to release the Liens granted to the
Lenders in the Phase II Land (and in connection with clause
(iv) above, in the Valvino Water Permits), and to permit
such Disposition.
(c) (i) The Driving Range Lease and the Employee Parking Lot Lease
shall not be terminated pursuant to Section 7.28(i) of the Credit Agreement
unless (i) such terminations are permitted under the other Financing
Agreements and (ii) immediately thereafter the Borrower and Landco enter into
replacement leases on substantially similar terms and conditions to the
Employee Parking Lot Lease and the Driving Range Lease and the Borrower takes
all actions required pursuant to Section 6.10 of the Credit Agreement with
respect to such replacement leases (other than requirements that new
environmental indemnity agreements be executed and delivered and provided that
to the extent such new Real Estate Rights are incorporated into existing Title
Policies by endorsement or supplement, the coverage amounts under such Title
Policies shall not be required to be increased); provided, that, such
replacement leases may be junior and subordinate to Liens on the Phase II Land
permitted under Section 2(g)(iv)(F) of this Second Amendment; provided,
further, that in lieu of terminating the Driving Range Lease and the Employee
Parking Lot Lease pursuant to this Section 2(c) and Section 7.28(i) of the
Credit Agreement, the Borrower may subordinate such leases to the Liens on the
Phase II Land permitted under Section 2(g)(iv)(F) of this Second Amendment and
Administrative Agent shall, to the extent the Mortgage Notes Indenture Trustee
has also taken such actions, execute such subordination instruments in form
and substance reasonably satisfactory to the Administrative Agent as may be
necessary to effectuate the subordination of such leases to such Liens. In the
event replacement leases with respect to the Employee Parking Lot Lease and
the Driving Range Lease as set forth in this Section 2(c) are entered into by
the Borrower and Landco, (x) such replacement leases shall be deemed to be
"Material Contracts" under the Credit Agreement, (y) Section 7.10(e) of the
Credit Agreement shall apply to such replacement leases and (z) Section 7.26
of the Credit Agreement shall not apply to such replacement leases.
Furthermore, subsequent to the execution of replacement leases with respect to
the Driving Range Lease and the Employee Parking Lot Lease or the
subordination of the Driving Range Lease and the Employee Parking Lot Lease,
in each case as described above, the cancellation or termination of such
leases shall not be deemed an Event of Default under Section 8(j) of the
Credit Agreement to the extent such cancellation or termination is as a direct
result of the foreclosure or other exercise of remedies by the holders of the
Liens to which such leases have been subordinated to in accordance with the
foregoing. The Lenders and the Majority Arrangers approve any termination and
replacement or subordination of the Driving Range Lease and the Employee
Parking Lot Lease in accordance with the foregoing.
(ii) From and after the Disposal of the Phase II Land in
accordance with Section 7.5(m) of the Credit Agreement, the Building Lease may
be terminated and thereafter the Borrower and Landco may enter into a
replacement lease on substantially similar terms and conditions to the
Building Lease so long as the Borrower takes all actions required pursuant to
Section 6.10 of the Credit Agreement with respect to such replacement lease
(other than requirements that new environmental indemnity agreements be
executed and delivered and provided that to the extent such new Real Estate
Rights are incorporated into existing Title Policies by endorsement or
supplement, the coverage amounts under such Title Policies shall not be
required to be increased); provided, that, such replacement leases may be
junior and subordinate to Liens on the Phase II Land permitted under Section
2(g)(iv)(F) of this Second Amendment; provided, further, that in lieu of
terminating the Building Lease pursuant to this Section 2(c), the Borrower may
subordinate such lease to the Liens on the Phase II Land permitted under
Section 2(g)(iv)(F) of this Second Amendment and Administrative Agent shall,
to the extent the Mortgage Notes Indenture Trustee has also taken such
actions, execute such subordination instruments in form and substance
reasonably satisfactory to the Administrative Agent as may be necessary to
effectuate the subordination of such lease to such Liens. In the event a
replacement lease with respect to the Building Lease as set forth in this
Section 2(c) are entered into by the Borrower and Landco, (x) such replacement
lease shall be deemed to be the "Building Lease" and a "Material Contract", in
each case under the Credit Agreement, (y) Section 7.10(e) of the Credit
Agreement shall apply to such replacement lease and (z) Section 7.26 of the
Credit Agreement shall not apply to such replacement lease. Furthermore,
subsequent to the execution of a replacement lease with respect to the
Building Lease or the subordination of the Building Lease, in each case as
described above, the cancellation or termination of such lease shall not be
deemed an Event of Default under Section 8(j) of the Credit Agreement to the
extent such cancellation or termination is as a direct result of the
foreclosure or other exercise of remedies by the holders of the Liens to which
such leases have been subordinated to in accordance with the foregoing. The
Lenders approve any termination and replacement or subordination of the
Building Lease in accordance with the foregoing and agree that in the event of
any such termination and replacement or subordination, such lease may
thereafter be terminated, or the Real Estate or other Property covered thereby
reduced, by the Borrower at its option.
(d) Section 7.20 of the Credit Agreement is amended by deleting each
reference to the "Phase II Land" contained therein.
(e) The Borrower shall not construct the Project (including the
Entertainment Facility) on the Phase II Land (other than with respect to the
Employee Parking Lot and the Driving Range).
(f) Section 8 of the Credit Agreement is amended as follows:
(i) The words "to the extent the Phase II Land is Disposed
of in accordance with Section 7.5(m), Landco Parent," are added after the
words "Completion Guarantor" in the second line of Section 8(b) of the Credit
Agreement.
(ii) The words "to the extent the Phase II Land is Disposed
of in accordance with Section 7.5(m), Landco Parent," are added after the
words "Wynn Resorts" in the first line of Section 8(d) of the Credit
Agreement.
(iii) The words "to the extent the Phase II Land is Disposed
of in accordance with Section 7.5(m), Landco Parent," are added after the
words (A) "Completion Guarantor" in each place where such words are found in
Section 8(f) of the Credit Agreement and (B) "Wynn Resorts" in clause (A) of
Section 8 (second line of the continuation paragraph on page 138 of the Credit
Agreement).
(g) After the Disposition of the Phase II Land under Section 7.5(m)
of the Credit Agreement, the occurrence and continuance (in the case of
clauses (iii) and (iv) below, for a period of more than 10 days after the
earlier of (x) the Borrower, any other Loan Party, Landco Parent or Landco
becoming aware of such default or (y) receipt by the Borrower of notice from
the Administrative Agent or any Lender of such default) of any of the
following events shall be deemed an Event of Default under the Credit
Agreement:
(i) Landco shall cease to be a direct Wholly-Owned
Subsidiary of Landco Parent or Landco Parent shall cease to be a direct or
indirect Wholly-Owned Subsidiary of Wynn Resorts;
(ii) Other than the creation of Liens permitted pursuant to
Section 2(g)(iv) of this Second Amendment, Landco shall Dispose of all or any
part of the Phase II Land;
(iii) Landco shall create, assume or suffer to exist any
Indebtedness other than Indebtedness in an aggregate principal amount not to
exceed $153,400,000 at any one time outstanding;
(iv) Landco shall create, incur, assume or suffer to exist
any Lien upon the Phase II Land or any of its other Properties, except for (A)
Liens for taxes not yet due or which are being contested in good faith by
appropriate proceedings; provided that adequate reserves with respect thereto
are maintained on the books of the Borrower in conformity with GAAP, (B)
carriers', warehousemen's, mechanics', materialmen's, repairmen's or other
like Liens arising in the ordinary course of business for amounts which are
not overdue for a period of more than 30 days or that are being contested in
good faith by appropriate proceedings (such contest proceedings conclusively
operating to stay the sale of any portion of the Phase II Land on account of
such Lien); provided, that adequate reserves with respect thereto are
maintained on the books of Landco, in conformity with GAAP, (C) pledges or
deposits in connection with workers' compensation, unemployment insurance and
other social security legislation, (D) deposits by or on behalf of Landco to
secure the performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, appeal bonds and other obligations of a
like nature incurred in the ordinary course of business, (E) easements,
rights-of-way, restrictions, encroachments and other similar encumbrances and
other minor defects and irregularities in title, in each case incurred in the
ordinary course of business that, in the aggregate, are not substantial in
amount and which do not in any case materially detract from the value of the
Phase II Land, (F) Liens securing Indebtedness permitted pursuant to Section
2(g)(iii) of this Second Amendment, (G) leases and subleases of the Phase II
Land so long as such lease or sublease could not reasonably be expected to
materially interfere with, impair or detract from the value of the Phase II
Land or such leases and subleases are for the benefit of any Loan Party;
provided, that no such lease or sublease may provide that Landco may
subordinate its interest it the Phase II Land to any lessee or any party
financing any lessee, (H) any attachment or judgment Lien involving a
liability (not paid or fully covered by insurance) of $2,000,000 or more, and
all such judgments or decrees shall not have been vacated, discharged, stayed
or bonded pending appeal within 45 days from the entry thereof, (I) Liens
created by the Driving Range Lease or the Employee Parking Lot Lease or
replacements thereof in accordance with the terms of this Second Amendment (in
each case encumbering only the Property covered by such lease agreement) and
other Liens, encumbrances and other exceptions to title specified on Exhibit A
to this Second Amendment, (J) Liens arising from the filing of UCC financing
statements relating solely to leases not constituting an Event of Default
pursuant to this Section 2(g)(iv), (K) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties in
connection with the importation of goods, (L) Liens on cash deposited with, or
held for the account of, Landco securing reimbursement obligations under
performance bonds, guaranties, commercial or standby letters of credit,
bankers' acceptances or similar instruments not constituting an Event of
Default pursuant to Section 2(g)(iii) of this Second Amendment, granted in
favor of the issuers of such performance bonds, guaranties, commercial letters
of credit or bankers' acceptances, so long as any cash disbursed to secure
such reimbursement obligations is invested (if at all) in Permitted Securities
only (to the extent Landco has the right to direct the investment thereof) and
is segregated from Landco's general cash accounts so that such Liens attach
only to such cash and Permitted Securities and (M) any zoning or similar law
or right reserved to or vested in any Governmental Authority to control or
regulate the use of the Phase II Land; and
(v) Landco shall declare or pay any dividend on, or make any
payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any of its Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or in obligations of
Landco, or enter into any derivatives or other transaction with any
Derivatives Counterparty obligating Landco to make payments to such
Derivatives Counterparty as a result of any change in market value of its
Capital Stock, except for (A) distributions to the direct or indirect owners
of Landco with respect to any period during which Landco is a Pass Through
Entity or a Consolidated Member, such distributions in an aggregate amount not
to exceed such owners' Tax Amounts for such period, (B) distributions of
Capital Stock of Landco to Landco Parent so long as the Administrative Agent
is immediately granted a perfected first priority security interest in such
Capital Stock pursuant to the pledge agreement entered into by Landco Parent
in accordance with Section 7.5(m)(iii) of the Credit Agreement and (C)
distributions in cash made on or about the date Valvino Disposes of the Phase
II Land to Landco pursuant to 7.5(m) of the Credit Agreement so long as the
Borrower receives concurrently therewith aggregate net cash capital
contributions from any Person(s) other than another Loan Party (except to the
extent another Loan Party is acting as an intermediary for purposes of
contributing equity capital contributions from such other Persons) in an
amount not less than such distributions.
(h) The Lenders consent to, direct and grant the Administrative Agent
the authority to waive or amend provisions of the Loan Documents on behalf of
the Lenders to the extent such provisions would prohibit or restrict or are
otherwise inconsistent with the Disposition of the Phase II Land in accordance
with to Section 7.5(m) of the Credit Agreement or the termination and/or
subordination of the leases permitted pursuant to Section 2(c) of this Second
Amendment and Section 7.28(i) of the Credit Agreement.
(i) Wynn Resorts Holdings and the Borrower shall be permitted to
amend, modify or supplement the Shuttle Easement Agreement pursuant to
documentation in form and substance reasonably satisfactory to the
Administrative Agent in order to permit the fee owner of the Phase II Land to
unilaterally relocate the easement created thereunder so long as such
relocation does not unreasonably interfere with the intended uses of such
easement.
(j) From and after the Disposition of the Phase II Land in accordance
with Section 7.5(m) of the Credit Agreement, with respect to the contributions
required to be made under Section 7.5(m)(ii) of the Credit Agreement, Borrower
shall use the increase in Available Funds resulting from such contributions in
a manner reasonably consistent with the purposes and the amounts set forth on
Exhibit B to this Second Amendment and in accordance with the Operative
Documents.
3. Disbursement Agreement Waiver. The Required Facility Lenders under
the Term Loan Facility irrevocably instruct the Administrative Agent to waive
the conditions precedent set forth in Section 3.3.23(b) of the Disbursement
Agreement with respect to the initial Advance (as such term is defined in the
Disbursement Agreement) of funds from the Credit Agreement. Any such waiver
shall be limited solely to the matters set forth in this Section 3 and does
not constitute a waiver of any Event of Default, or Default or compliance with
any other term or condition of the Loan Documents. The Administrative Agent
shall deliver such directions, notices and other documentation to the
Disbursement Agent under the Disbursement Agreement as may be reasonably
necessary to effectuate the foregoing waivers.
4. Conditions to Effectiveness of this Second Amendment. This Second
Amendment shall be effective only if and when signed by the Borrower, the
Guarantors and the Administrative Agent on behalf of the Lenders and the
Borrower shall have paid to (x) each Revolving Credit Lender who approves the
matters set forth in Section 2 of this Second Amendment and (y) each Term Loan
Lender who approves the matters set forth in Sections 2 and 3 of this Second
Amendment, in each case in writing to Administrative Agent on or before April
9, 2004 at 5:00 p.m. (eastern time), an amendment and waiver fee equal to the
product of 0.15% and such Lender's Commitment.
5. Guarantor Acknowledgments. By executing this Second Amendment each
of the Guarantors (a) consents to this Second Amendment, (b) acknowledges that
notwithstanding the execution and delivery of this Second Amendment, the
obligations of each of the Guarantors under the Guarantee and Collateral
Agreement and the Wynn Resorts Guaranty, as applicable, are not impaired or
affected and the Guarantee and Collateral Agreement and the Wynn Resorts
Guaranty continue in full force and effect and (c) affirms and ratifies, to
the extent it is a party thereto, the Guarantee and Collateral Agreement and
the Wynn Resorts Guaranty.
6. Miscellaneous. This SECOND Amendment, and any instrument or
agreement required hereunder (to the extent not otherwise expressly provided
for therein), 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 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.
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IN WITNESS WHEREOF, the parties have caused this Second Amendment to
be duly executed by their officers or partners thereunto duly authorized as of
the day and year first above written.
WYNN LAS VEGAS, LLC, PALO, LLC,
a Nevada limited liability company, a Delaware limited liability company,
By: Wynn Resorts Holdings, LLC, By: Wynn Resorts Holdings, LLC,
a Nevada limited liability company, a Nevada limited liability company,
its sole member its sole member
By: Valvino Lamore, LLC, By: Valvino Lamore, LLC,
a Nevada limited liability company, its a Nevada limited liability company,
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/ Marc H. Rubinstein By: /s/ Marc H. Rubinstein
----------------------- ------------------------
Name: Marc H. Rubinstein Name: Marc H. Rubinstein
Title: Senior Vice President Title: Senior Vice President
VALVINO LAMORE, LLC, WYNN DESIGN & DEVELOPMENT, LLC,
a Nevada limited liability company, a Nevada limited liability company,
By: Wynn Resorts, Limited, By: Valvino Lamore, LLC,
a Nevada corporation, a Nevada limited liability company,
its sole member its sole member
By: /s/ Marc H. Rubinstein By: Wynn Resorts, Limited,
----------------------- a Nevada corporation,
Name: Marc H. Rubinstein its sole member
Title: Senior Vice President
By: /s/ Marc H. Rubinstein
-----------------------
Name: Marc H. Rubinstein
Title: Senior Vice President
DESERT INN WATER COMPANY, LLC, a Nevada limited WYNN RESORTS HOLDINGS, LLC,
liability company, a Nevada limited liability company,
By: Valvino Lamore, LLC, By: Valvino Lamore, 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/ Marc H. Rubinstein By: /s/ Marc H. Rubinstein
----------------------- -----------------------
Name: Marc H. Rubinstein Name: Marc H. Rubinstein
Title: Senior Vice President Title: Senior Vice President
WORLD TRAVEL, LLC, LAS VEGAS JET, LLC,
a Nevada limited liability company, a Nevada limited liability company,
By: Wynn 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: Wynn Resorts Holdings, LLC,
a Nevada limited liability company, its a Nevada limited liability company, its sole member
sole member
By: Valvino Lamore, LLC,
By: Valvino Lamore, LLC, a Nevada limited liability company, its sole
a Nevada limited liability company, member
its sole member
By: Wynn Resorts, Limited, a Nevada
By: Wynn Resorts, Limited, a Nevada corporation,
corporation, its sole member its sole member
By: /s/ Marc H. Rubinstein By: /s/ Marc H. Rubinstein
----------------------- -----------------------
Name: Marc H. Rubinstein Name: Marc H. Rubinstein
Title: Senior Vice President Title: Senior Vice President
WYNN LAS VEGAS CAPITAL CORP., WYNN RESORTS LIMITED,
a Nevada corporation, a Nevada corporation,
By: /s/ Marc H. Rubinstein By: /s/ Marc H. Rubinstein
----------------------- -----------------------
Name: Marc H. Rubinstein Name: Marc H. Rubinstein
Title: Senior Vice President Title: Senior Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS, as the
Administrative Agent on behalf of the Lenders
By: /s/ Steven P. Lapham
---------------------
Name: Steven P. Lapham
Title: Managing Director