Exhibit 10.2
FIRST AMENDMENT
TO MASTER DISBURSEMENT AGREEMENT
THIS FIRST AMENDMENT TO MASTER DISBURSEMENT AGREEMENT (the
"Amendment") is made and entered into as of April 26, 2005, by and among XXXX
LAS VEGAS, LLC, a Nevada limited liability company (the "Company"), DEUTSCHE
BANK TRUST COMPANY AMERICAS as the Bank Agent (the "Bank Agent"), and DEUTSCHE
BANK TRUST COMPANY AMERICAS, as the Disbursement Agent (the "Disbursement
Agent"), with respect to the following:
Recitals
A. Disbursement Agreement. The undersigned are parties to that
certain Master Disbursement Agreement dated December 14, 2004 (the
"Disbursement Agreement") among the Company, the Bank Agent, U.S. Bank,
National Association as the indenture trustee (the "Indenture Trustee"), and
the Disbursement Agent. The defined terms used herein and not otherwise
defined herein shall have the meanings given in the Disbursement Agreement.
B. Right to Amend Disbursement Agreement Without Consent of Indenture
Trustee. The Bank Agent, the Disbursement Agent and the Company have the right
to amend this Disbursement Agreement as set forth therein without the
Indenture Trustee's consent.
C. Amendment. The undersigned desire to amend the Disbursement
Agreement to reflect certain agreements of the parties hereto, all as more
particularly set forth herein.
Agreement
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the undersigned
agree as follows:
1. DEFINITIONS.
a. Outside Phase II Completion Deadline. Exhibit A of the
Disbursement Agreement is hereby amended by deleting the date March 31, 2008
from the existing definition of "Outside Phase II Completion Deadline" and
replacing it with the date December 31, 2008.
b. Outside Phase II Opening Deadline. Exhibit A of the
Disbursement Agreement is hereby amended by deleting the date December 31,
2007 from the existing definition of "Outside Phase II Opening Deadline" and
replacing it with the date September 30, 2008.
c. Plans and Specifications. Exhibit A of the Disbursement
Agreement is hereby amended by deleting the second reference to Exhibit Q-4 in
the existing definition of "Plans and Specifications" and replacing it with
the following:
"Exhibit V-1 or V-2, as applicable,"
d. 2014 Noteholders. Exhibit A of the Disbursement Agreement
is herby amended by inserting the following definition immediately prior to
the existing definition of "2014 Notes:"
"2014 Noteholders" means the holders of the 2014 Notes
from time to time.
e. 2014 Notes Indenture. Exhibit A of the Disbursement
Agreement is hereby amended by deleting the concluding period of the existing
definition of "2014 Notes Indenture" and replacing it with the following:
", including any amendments, modifications, or supplements
thereto entered into from time to time."
2. DISBURSEMENT AGREEMENT PROVISIONS.
a. Article 3. Article 3 of the Disbursement Agreement is
hereby amended by deleting the first paragraph of Section 3.4 in its entirety
and replacing it with the following:
"Conditions Precedent to Phase II Approval Date. In order to
request that the Phase II Approval Date occur (which request shall be made at
the option of the Company), the Company shall deliver to the Construction
Consultant, the Disbursement Agent, the Bank Agent, and each Arranger as soon
as practicable but in no event later than fifteen (15) days before the Phase
II Revolving Commitment Sunset Date (the "Phase II Deliverables Submission
Deadline"), the Phase II Primary Construction Contract, the Phase II
Architect's Agreement (if one is entered into), the conceptual plans and
specifications for the Phase II Project, copies of all Phase II Deliverables
reasonably required by the Construction Consultant in order for the
Construction Consultant to prepare its updated report to be delivered under
Section 3.4.8, and all other Phase II Deliverables (excluding the updated
Construction Consultant's Report), including a Company's Phase II Approval
Date Certificate appropriately completed and duly executed by a Responsible
Officer of the Company, with all attachments thereto. The Disbursement Agent
and the Arrangers shall use reasonable efforts to review the Phase II
Deliverables and respond to the Company as soon as practicable after their
receipt thereof. To the extent that the Company delivers any Phase II
Deliverables prior to the Phase II Deliverables Submission Deadline, the
Company shall be entitled to revise and re-submit such Phase II Deliverables
from time to time prior to the Phase II Deliverables Submission Deadline. If
all of the Phase II Deliverables have been delivered prior to the Phase II
Deliverables Submission Deadline, the Disbursement Agent and the Arrangers
shall use reasonable efforts to review the Phase II Deliverables and
determine, prior to the Phase II Revolving Commitment Sunset Date, whether
each of the conditions precedent to the Phase II Approval Date have been
satisfied. If the Majority of the Arrangers, in consultation with the
Construction Consultant, reasonably determine each of the following conditions
precedent to the Phase II Approval Date shall have been satisfied (in form and
substance reasonably satisfactory to the Majority of the Arrangers) on or
prior to the Phase II Revolving Commitment Sunset Date, then the Bank Agent
shall countersign the Company's Phase II Approval Date Certificate and
promptly forward the same to the Disbursement Agent, the Arrangers, the 2014
Notes Indenture Trustee, the Construction Consultant and the Company. The
Phase II Approval Date shall be deemed to occur on the date the Bank Agent
countersigns the Company's Phase II Approval Date Certificate."
b. Section 6.3.2(c). Section 6.3.2(c) of the Disbursement
Agreement is hereby amended by replacing the date June 30, 2008 with the date
March 31, 2009 and by replacing the date September 30, 2008 with the date June
30, 2009.
3. Miscellaneous. Except as set forth in this Amendment, all
other terms and provisions of the Disbursement Agreement remain unmodified and
in full force and effect. This Amendment shall be construed and enforced in
accordance with the laws of the State of New York. In the event that any term
or provision contained herein is held to be invalid, void or otherwise
unenforceable by any court of competent jurisdiction, the fact that such term
or provision is invalid, void or otherwise unenforceable shall in no way
affect the validity or enforceability of any other term or provision contained
herein. This Amendment may be executed in any number of identical
counterparts.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first written above.
COMPANY:
XXXX LAS VEGAS, LLC,
a Nevada limited liability company
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/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
BANK AGENT:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
Title: Associate
DISBURSEMENT AGENT:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
Title: Associate
