Exhibit 10.2
THIRD AMENDMENT TO
LOAN AGREEMENT
THIRD AMENDMENT TO LOAN AGREEMENT (this "Amendment") dated as of May
3, 2004 is among WYNN LAS VEGAS, LLC, a Nevada limited liability company (the
"Borrower"), WELLS FARGO BANK NEVADA, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity (except as specifically set forth
herein), but solely as collateral agent (the "Collateral Agent"), and each of
the Persons listed on the signature pages hereto as a Lender (each, a
"Lender").
RECITALS:
A. The Borrower, the Collateral Agent, and the Lenders have
heretofore entered into that certain Loan Agreement dated as of October 30,
2002, as amended by the Amendment to Loan Agreement dated December 3, 2002 and
the Second Amendment to Loan Agreement dated December 30, 2002 (as amended,
supplemented or otherwise modified from time to time, the "Loan Agreement").
Capitalized terms used, but not otherwise defined in this Amendment, shall
have those meanings assigned to such terms in Appendix 1 to the Loan
Agreement.
B. The parties hereto desire to amend the Loan Agreement.
NOW, THEREFORE, in consideration of good and valuable consideration
the receipt and sufficiency of which is hereby acknowledged, the parties
hereto do hereby agree as follows:
SECTION 1. AMENDMENT TO LOAN AGREEMENT.
Section 7.24 of the Loan Agreement shall be and is hereby amended and
restated in its entirety to read as follows:
"Section 7.24. Lease Terminations. Terminate or permit the
termination of, or reduce or permit the reduction of the Real Estate
or other Property covered by:
(i) the Driving Range Lease, the Building Lease or the
Employee Parking Lot Lease, in each case until such time as
(A) the Phase II Land is Disposed of in accordance with
Section 7.5(m) and (B) with respect to the Employee Parking
Lot Lease and the Driving Range Lease, (1) such terminations
are permitted under the other Financing Agreements and (2)
immediately thereafter the Borrower enters into replacement
leases on substantially similar terms and conditions to the
Employee Parking Lot Lease and the Driving Range Lease;
provided, that (a) such replacement leases may be junior and
subordinate to any Liens on the Phase II Land and (b) such
replacement leases shall be deemed to be Material Contracts
under the Loan Agreement; provided, further, that in lieu of
terminating the Driving Range Lease and the Employee Parking
Lot Lease pursuant to this Section 7.24, the Borrower may
subordinate such leases to any Liens on the Phase II Land;
provided, further, that the cancellation or termination of
such replacement and/or subordinated leases shall not
constitute an Event of Default under Section 9.1(j) of the
Loan 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 in accordance with
the foregoing; or
(ii) the Golf Course Lease until such time as the Golf
Course Land is Disposed of in accordance with Section 7.5(k)
(provided, that the Real Estate or other Property subject to
the Golf Course Lease may be reduced in connection with the
Disposition of the Wynn Home Site Land pursuant to Section
7.5(j) or the Disposition of the Home Site Land in
accordance with Section 7.5(l), in either case so long as
such reduction is only with respect to such Real Estate or
other Property being Disposed of pursuant to such
Disposition)."
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE BORROWER.
To induce the Lenders to execute and deliver this Amendment
(which representations shall survive the execution and delivery of this
Amendment), the Borrower represents and warrants to the Lenders that:
(a) this Amendment has been duly authorized, executed and
delivered by it and this Amendment constitutes the legal, valid and
binding obligation, contract and agreement of the Borrower
enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or
limiting creditors' rights generally;
(b) the Loan Agreement, as amended by this Amendment,
constitutes the legal, valid and binding obligations, contracts and
agreements of the Borrower enforceable against it in accordance with
their respective terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws or
equitable principles relating to or limiting creditors' rights
generally;
(c) the execution, delivery and performance by the Borrower
of this Amendment (i) has been duly authorized by all requisite
limited liability company action and, if required, member action,
(ii) does not require the consent or approval of any governmental or
regulatory body or agency, and (iii) will not (A) violate (1) any
provision of law, statute, rule or regulation or its articles of
organization or operating agreement, (2) any order of any court or
any rule, regulation or order of any other agency or government
binding upon it, or (3) any provision of any material indenture,
agreement or other instrument to which it is a party or by which its
properties or assets are or may be bound, including, without
limitation, the Wynn Credit Agreement, or (B) result in a breach or
constitute (alone or with due notice or lapse of time or both) a
default under any indenture, agreement or other instrument referred
to in clause (iii)(A)(3) of this Section 2(c);
(d) as of the date hereof and after giving effect to this
Amendment, no Default or Event of Default has occurred which is
continuing; and
(e) all the representations and warranties contained in
Section 5.1 of the Loan Agreement are true and correct in all
material respects with the same force and effect as if made by the
Borrower on and as of the date hereof (except to the extent made as
of a different date).
SECTION 3. EFFECTIVENESS.
This Amendment shall become effective on May 3, 2004 (the
"Effective Date") upon the satisfaction of the following conditions precedent:
(a) This Amendment and all other agreements and instruments
related thereto shall have been duly authorized, executed and
delivered by the Borrower and the Required Lenders, and an executed
counterpart of each thereof shall have been received by each of the
parties thereto. After giving effect to this Amendment, the Operative
Documents shall be in full force and effect as to all parties and no
Default or Event of Default shall have occurred or be continuing;
(b) the representations and warranties of the Borrower set
forth in Section 2 hereof are true and correct in all material
respects on and with respect to the date hereof (except to the extent
made as of a different date); and
(c) Since December 31, 2003, there shall have been no
Material Adverse Effect.
SECTION 4. FEES AND EXPENSES.
Borrower agrees to pay all the reasonable fees and expenses of the
Collateral Agent and the Lenders (including the reasonable expenses of one
counsel) in connection with the negotiation and preparation of this Amendment.
SECTION 5. MISCELLANEOUS.
Section 5.1. Guarantor Obligations. Each Guarantor hereby ratifies
and affirms in all respects its obligations under its guaranty and
acknowledges that such guaranty shall remain in full force and effect.
Section 5.2. Construction. This Amendment shall be construed in
connection with and as part of the Loan Agreement, and except as modified and
expressly amended by this Amendment, all terms, conditions and covenants
contained in the Loan Agreement are hereby ratified and shall be and remain in
full force and effect.
Section 5.3. Headings and Table of Contents. The headings of the
Sections of this Amendment are inserted for purposes of convenience only and
shall not be construed to affect the meaning or construction of any of the
provisions hereof and any reference to numbered Sections, unless otherwise
indicated, are to Sections of this Amendment.
Section 5.4. References. Any and all notices, requests, certificates
and other instruments executed and delivered after the execution and delivery
of this Amendment may refer to the Loan Agreement without making specific
reference to this Amendment but nevertheless all such references shall be
deemed to include this Amendment unless the context otherwise requires.
Section 5.5. Counterparts. This Amendment may be executed in any
number of counterparts, each executed counterpart constituting an original but
all together only one Amendment.
Section 5.6. Governing Law. This Amendment shall be governed by and
construed in accordance under the laws of the State of New York without regard
to conflict of law principles (other than Title 14 of Article V of the New
York General Obligation Law).
[Signature Pages begin on Next Page]
Executed and delivered as of this 3rd day of May, 2004.
WYNN LAS VEGAS, LLC,
a Nevada limited liability company,
as the Borrower
By: Wynn Resorts Holdings, LLC,
a Nevada limited liability company,
its sole member
By: Valvino Lamore, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited,
a Nevada corporation,
its sole member
By: /s/ Marc H. Rubinstein
-------------------------------
Name: Marc H. Rubinstein
Title: Senior Vice President
Accepted and agreed to as of the Effective Date.
ARES VII CLO LTD.
By: Ares CLO Management VII, L.P.
Investment Manager
By: Ares CLO GP VII, LLC
Its General Partner
By: /s/ Seth J. Brufsky
--------------------------------------
Name: Seth J. Brufsky
Title: Vice President
ARES VIII CLO LTD.
By: Ares CLO Management VIII, L.P.
Investment Manager
By: Ares CLO GP VIII, LLC
Its General Partner
By: /s/ Seth J. Brufsky
-------------------------------------
Name: Seth J. Brufsky
Title: Vice President
Accepted and agreed to as of the Effective Date.
KZH CYPRESSTREE-1 LLC, as Lender
By: /s/ Hi Hua
-------------------------------------
Name: Hi Hua
Title: Authorized Agent
Accepted and agreed to as of the Effective Date.
SEQUILS - CENTURION V, LTD
By: American Express Asset Management
Group, Inc. as Collateral Manager, as Lender
By: /s/ Yvonne Stevens
-------------------------------------
Name: Yvonne Stevens
Title: Senior Managing Director
Accepted and agreed to as of the Effective Date.
CENTURION CDO III, LIMITED
By: American Express Asset Management
Group, Inc. as Collateral Manager, as Lender
By: /s/ Yvonne Stevens
-------------------------------------
Name: Yvonne Stevens
Title: Senior Managing Director
Accepted and agreed to as of the Effective Date.
CENTURION CDO VI, LTD.
By: American Express Asset Management
Group, Inc. as Collateral Manager, as Lender
By: /s/ Yvonne Stevens
-------------------------------------
Name: Yvonne Stevens
Title: Senior Managing Director
Accepted and agreed to as of the Effective Date.
CENTURION CDO II, LTD.
By: American Express Asset Management
Group, Inc. as Collateral Manager, as Lender
By: /s/ Yvonne Stevens
-------------------------------------
Name: Yvonne Stevens
Title: Senior Managing Director
Accepted and agreed to as of the Effective Date.
THE CIT GROUP/EQUIPMENT FINANCING, INC.,
as Lender
By: /s/ Michael J. Misulonas
-------------------------------------
Name: Michael J. Misulonas
Title: Senior Credit Analyst
Accepted and agreed to as of the Effective Date.
BANK OF AMERICA, N.A., as Lender
By: /s/ Peter J. Vitale
-------------------------------------
Name: Peter J. Vitale
Title: Senior Vice President
Accepted and agreed to as of the Effective Date.
FOOTHILL INCOME TRUST, L.P.
By: FIT GP, LLC, its General Partner,
as Lender
By: /s/ R. Michael Bohannon
-------------------------------------
Name: R. Michael Bohannon
Title: Managing Member
Accepted and agreed to as of the Effective Date.
ABLECO FINANCE LLC, as Lender
By: /s/ Kevin Genda
-------------------------------------
Name: Kevin Genda
Title: Senior Vice President
Accepted and agreed to as of the Effective Date.
A3 FUNDING LP, as Lender
By: A3 FUND MANAGEMENT LLC, its General
Partner
By: /s/ Kevin Genda
-------------------------------------
Name: Kevin Genda
Title: Vice President
Accepted and agreed to as of the Effective Date.
A4 FUNDING LP, as Lender
By: A4 FUND MANAGEMENT, INC., its General
Partner
By: /s/ Kevin Genda
-------------------------------------
Name: Kevin Genda
Title: Vice President
Accepted and agreed to as of the Effective Date.
SOCIETE GENERALE, as Lender
By /s/ Thomas K. Day
-------------------------------------
Name: Thomas K. Day
Title: Managing Director
Accepted and agreed to as of the Effective Date.
WELLS FARGO BANK NEVADA, NATIONAL
ASSOCIATION, as Collateral Agent
By /s/ DeAnn Madsen
--------------------------------------
Name: DeAnn Madsen
Title: Trust Officer
Each of the undersigned hereby further confirms its continued
guaranty of the obligations of the Borrower under the Loan Agreement, as
amended hereby, pursuant to the terms of its guaranty on this 3rd day of
May, 2004.
WYNN RESORTS, LIMITED,
a Nevada corporation
By: /s/ Marc H. Rubinstein
--------------------------------------
Name: Marc H. Rubinstein
Title: Senior Vice President
VALVINO LAMORE, LLC,
a Nevada limited liability company,
By: Wynn Resorts, Limited,
a Nevada corporation,
its sole member
By: /s/ Marc H. Rubinstein
--------------------------------------
Name: Marc H. Rubinstein
Title: Senior Vice President
WYNN LAS VEGAS CAPITAL CORP., a Nevada
corporation,
By: /s/ Marc H. Rubinstein
--------------------------------------
Name: Marc H. Rubinstein
Title: Senior Vice President
PALO, LLC,
a Delaware limited liability company,
By: Wynn Resorts Holdings, LLC,
a Nevada limited liability company,
its sole member
By: Valvino Lamore, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited,
a Nevada corporation,
its sole member
By: /s/ Marc H. Rubinstein
----------------------------------
Name: Marc H. Rubinstein
Title: Senior Vice President
DESERT INN WATER COMPANY, LLC,
a Nevada limited liability company,
By: Valvino Lamore, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited,
a Nevada corporation,
its sole member
By: /s/ Marc H. Rubinstein
---------------------------------
Name: Marc H. Rubinstein
Title: Senior Vice President
WYNN RESORTS HOLDINGS, LLC,
a Nevada limited liability company,
By: Valvino Lamore, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited,
a Nevada corporation,
its sole member
By: /s/ Marc H. Rubinstein
--------------------------
Name: Marc H. Rubinstein
Title: Senior Vice President
WYNN DESIGN & DEVELOPMENT, LLC,
a Nevada limited liability company,
By: Valvino Lamore, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited,
a Nevada corporation,
its sole member
By: /s/ Marc H. Rubinstein
---------------------------------
Name: Marc H. Rubinstein
Title: Senior Vice President
WORLD TRAVEL, LLC,
a Nevada limited liability company,
By: WYNN LAS VEGAS, LLC,
a Nevada limited liability company,
By: Wynn Resorts Holdings, LLC,
a Nevada limited liability
company, its sole member
By: Valvino Lamore, LLC,
a Nevada limited liability
company, its sole member
By: Wynn Resorts, Limited,
a Nevada corporation,
its sole member
By: /s/ Marc H. Rubinstein
--------------------------
Name: Marc H. Rubinstein
Title: Senior Vice
President
LAS VEGAS JET, LLC,
a Nevada limited liability company,
By: WYNN LAS VEGAS, LLC,
a Nevada limited liability company,
By: Wynn Resorts Holdings, LLC,
a Nevada limited liability company,
its sole member
By: Valvino Lamore, LLC,
a Nevada limited liability
company, its sole member
By: Wynn Resorts, Limited, a
Nevada corporation, its sole
member
By: /s/ Marc H. Rubinstein
----------------------------
Name: Marc H.Rubinstein
Title: Senior Vice President