UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM 8-K
CURRENT REPORT
_____________________
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): September 1, 2004
Wynn Resorts, Limited
(Exact Name of Registrant as Specified in its Charter)
Nevada 000-50028 46-0484987
(State or Other Jurisdiction of (Commission File Number) (I.R.S. Employer
Incorporation) Identification No.)
3131 Las Vegas Boulevard South
Las Vegas, Nevada 89109
(Address of Principal Executive Offices) (Zip Code)
(702) 770-7555
(Registrant's telephone number, including area code)
Check the appropriate box below if the Form 8-K is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
|_| Written communication pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencements communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement
On September 1, 2004, Wynn Las Vegas, LLC, a subsidiary of the Registrant,
entered into an Acknowledgement and Agreement with General Electric Capital
Corporation, The CIT Group/Equipment Financing and Bank of America, N.A.,
Nevada Branch, as lenders, and Wells Fargo Bank, National Association, as
collateral agent, pursuant to which the lenders approved certain provisions of
the Fourth Amendment to Loan Agreement, dated as of July 21, 2004 (the "Fourth
Amendment"), among Wynn Las Vegas, LLC, as borrower, Wells Fargo Bank,
National Association, as collateral agent, and the following lenders: Societe
Generale, Bank of America, N.A., GMAC Commercial Mortgage Corporation, The CIT
Group/Equipment Financing, Inc., Ares VII CLO Ltd., Ares VII CLO Ltd., Ableco
Finance LLC, A3 Funding LP and A4 Funding LP. As part of such approval,
certain of the lenders agreed to make an additional $10.0 million available to
Wynn Las Vegas under its existing FF&E facility to be applied towards the
purchase price of a replacement corporate aircraft. As a result, the
conditions set forth in the Fourth Amendment relating to the draw of such
funds were satisfied, and on September 1, 2004 Wynn Las Vegas, LLC drew upon
this additional $10.0 million of availability to recoup a portion of the
purchase price of the Boeing business jet it purchased in June 2004.
Item 9.01 Financial Statements and Exhibits
(c) Exhibits
Exhibit
Number Description
------- -----------
10.1 Fourth Amendment to Loan Agreement, dated as of
July 21, 2004, among Wynn Las Vegas, LLC, Wells
Fargo Bank, National Association and the lenders
named therein.
10.2 Acknowledgement and Agreement, dated as of
September 1, 2004, among Wynn Las Vegas, LLC, Wells
Fargo Bank National Association and the lenders
named therein.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: September 8, 2004
Wynn Resorts, Limited
By: /s/ John Strzemp
-------------------------
John Strzemp
Executive Vice President and
Chief Financial Officer
EXHIBIT INDEX
10.1 Fourth Amendment to Loan Agreement, dated as of
July 21, 2004, among Wynn Las Vegas, LLC, Wells
Fargo Bank, National Association and the lenders
named therein.
10.2 Acknowledgement and Agreement, dated as of
September 1, 2004, among Wynn Las Vegas, LLC, Wells
Fargo Bank National Association and the lenders
named therein.
Exhibit 10.1
Execution Copy
==============================================================================
FOURTH AMENDMENT TO LOAN AGREEMENT
Dated as of July 21, 2004
in respect of
WYNN LAS VEGAS, LLC
===============================================================================
Wynn Las Vegas, LLC Amendment
FOURTH AMENDMENT
TO LOAN AGREEMENT
FOURTH AMENDMENT TO LOAN AGREEMENT (this "Amendment") dated as of
July 21, 2004 is among WYNN LAS VEGAS, LLC, a Nevada limited liability company
(the "Borrower"), WELLS FARGO BANK , NATIONAL ASSOCIATION (f/k/a 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,
the Second Amendment to Loan Agreement dated December 30, 2002 and the Third
Amendment to Loan Agreement dated as of May 3, 2004 (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, as
amended by this Amendment.
B. The parties hereto desire to amend the Loan Agreement to permit
the future increase of the aircraft commitment by an amount of up to
$10,000,000 and special funding procedures to facilitate the Borrower's
purchase of a replacement Aircraft.
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. INCREASE OF AIRCRAFT COMMITMENTS.
Section 1.1. Provided that no Default or Event of Default shall have
occurred and be continuing and the Commitments have not been terminated, the
Borrower shall be entitled, at any time during the period commencing on the
Effective Date and ending on October 31, 2004, without any consent from the
Lenders (except any Eligible Assignee(s) reasonably acceptable to the
Collateral Agent who desires to provide all or part of such increased amount
(each such Person, a "Replacement Aircraft Lender")), to request a one time
increase in the Aggregate Commitment Amount in an aggregate amount not to
exceed $10,000,000 (the "Commitment Increase").
Section 1.2. Neither the Collateral Agent nor any other Lender shall
have any liability to the Borrower as a result of the failure to successfully
syndicate the Commitment Increase and nothing contained in this Amendment is
intended, nor shall it be construed, to be a commitment or otherwise create an
obligation on behalf of any Lender to increase its Commitment.
Section 1.3. No approval or consent other than the consent of the
Collateral Agent and any Replacement Aircraft Lender shall be necessary to
effectuate the Commitment Increase, and the Loan Agreement and other Loan
Documents may be amended (including Schedules IA1 and IA2 by an agreement
between the Borrower and the Collateral Agent, without the need for any
further approval or consent from the Lenders, to the extent the Collateral
Agent determines necessary to effectuate the Commitment Increase.
Section 1.4. In furtherance of the foregoing, as of the effective
date of the Commitment Increase, each Replacement Aircraft Lender, the
Borrower and the Collateral Agent shall have executed and delivered to the
Collateral Agent a lender addendum substantially in the form of Schedule A
hereto (x) evidencing the Commitment Increase and (y) pursuant to which such
Replacement Aircraft Lender shall become a party to the Loan Agreement as a
Lender (to the extent not previously a party thereto), (B) the Collateral
Agent shall have recorded, in accordance with Section 10.1(b) of the Loan
Agreement, appropriate information in the Register in order to reflect the
acquisition of the Commitment Increase by the Replacement Aircraft Lenders and
(C) to the extent requested by any Replacement Aircraft Lender, the Borrower
shall have executed and delivered to such Lender, in accordance with Section
2.3(b) of the Loan Agreement, a Note in the principal amount of such
Replacement Aircraft Lender's portion of the Commitment Increase;
SECTION 2. AMENDMENTS TO LOAN AGREEMENT.
Section 2.1. A new Section 4.3 of the Loan Agreement shall be
included in numerical order to read as follows:
Section 4.3. Conditions Precedent to the
Replacement Aircraft Advance. The obligations of the Lenders
to make the related Funding of their Loans on the
Replacement Aircraft Advance Date are subject to the
satisfaction or waiver on or prior to the Replacement
Aircraft Advance Date of the following conditions precedent:
(a) Notice. The Borrower shall have delivered to
the Collateral Agent the Advance Request and Notices of
Funding Request with respect to the Loans requested on the
Replacement Aircraft Advance Date and the Disbursement Agent
shall have delivered to the Collateral Agent related Advance
Confirmation Notice, in each case in the form, at the times
and as required under the First Amendment to Master
Disbursement Agreement and in accordance with the procedures
specified therein.
(b) Satisfaction of Disbursement Agreement
Conditions Precedent. All conditions precedent described in
Sections 3.1.2 and 3.1.3 of the Disbursement Agreement as
they apply to the Lenders, including any officer's
certificate in form and substance satisfactory to the
Lenders.
(c) Sale of Existing Aircraft. Each of the
Collateral Agent and the Lenders shall have received
evidence reasonably satisfactory to the Lenders and their
counsel, that the existing Aircraft has been sold and the
proceeds therefrom have been deposited in the FF&E Proceeds
Account (as defined in the Disbursement Agreement) to be
applied to the purchase of the Replacement Aircraft in
accordance with the First Amendment to Master Disbursement
Agreement.
(d) Purchase of Replacement Aircraft. Each of the
Collateral Agent and the Lenders shall have received
evidence reasonably satisfactory to the Lenders and their
counsel, that, upon application of the proceeds of the sale
of the existing Aircraft and the proceeds of the Replacement
Aircraft Advance from the FF&E Proceeds Account toward the
purchase of the Replacement Aircraft, the Aircraft Trustee
shall have good and marketable title to the Replacement
Aircraft, free and clear of any liens, including, without
limitation, a bill of sale.
(e) Airworthiness. With respect to Replacement
Aircraft, the Collateral Agent shall have received a copy of
a certificate of airworthiness issued by the FAA.
(f) Filings and Recordation. With respect to the
Replacement Aircraft, there shall have been duly filed for
recordation with the FAA, the Aircraft Security Agreement
with respect to the Replacement Aircraft; all necessary
action has been taken for the Replacement Aircraft to be
duly registered with the FAA in the name of the Aircraft
Trustee.
(g) Release. Each of the Collateral Agent and the
Lenders shall have received evidence reasonably satisfactory
to the Lenders and their counsel, that the Replacement
Aircraft Financing Documents, including any Lien on the
Replacement Aircraft thereunder, have been paid in full and
discharged.
(h) Documents. Each of the Collateral Agent and the
Lenders shall have received copies of the fully executed and
delivered Aircraft Security Agreement Supplement, Aircraft
Trust Agreement and Aircraft Operating Agreement, and the
same shall be in full force and effect.
(i) Insurance. Each of the Collateral Agent and the
Lenders shall have received evidence reasonably satisfactory
to the Lenders and their counsel, that the insurance with
respect to the Replacement Aircraft required by Section 8.2
has been obtained.
(j) Opinions. Each of the Collateral Agent and the
Lenders shall have received favorable opinions of Dougherty,
Fowler, Peregrin & Haught, special FAA counsel,
substantially in the form attached hereto as Exhibit C and
of Skadden Arps, Slate, Meagher & Flom LLP, counsel to the
Borrower, with respect to the enforceability of the Aircraft
Security Agreement Supplement, matters set forth in Section
5(a) and (d) of the Fourth Amendment to Loan Agreement and
other matters reasonably requested by the Lenders.
(k) Searches. Each of the Collateral Agent and the
Lenders shall have received copies of FAA lien searches with
respect to the Replacement Aircraft or an opinion, in form
and substance acceptable to the Lenders, that no liens shall
then exist on the Replacement Aircraft.
(l) Appraisal. Each of the Collateral Agent and the
Lenders shall have received a copy of an Appraisal of the
Replacement Aircraft in form and substance reasonably
satisfactory to the Lenders and their counsel and evidencing
that the fair market value of the Replacement Aircraft is in
excess of the sum of fair market value of the existing
Aircraft and the Replacement Aircraft Advance.
(m) Consent. Las Vegas Jet shall have evidenced its
consent to the execution and delivery of the Aircraft
Security Agreement and Borrower Aircraft Assignment.
(n) Status and Proceedings. Each of the Collateral
Agent and the Lenders shall have received certificates of
existence and good standing with respect to the Aircraft
Trustee and a Certificate of the Secretary or Assistant
Secretary of the Aircraft Trustee, dated the Replacement
Aircraft Advance Date, with respect to the Aircraft
Trustee's governing documents, resolutions and incumbent
officers.
Section 2.2. Section 7.5(p)(iii)(B)(1) of the Loan Agreement shall be
and is hereby amended by inserting the phrase "(or in any event, within 3
Business Days)" immediately after the word "simultaneously" contained therein.
Section 2.3. Appendix I of the Loan Agreement shall be and is hereby
amended by amending and restating the definitions of "Aggregate Commitment
Amount", "Aircraft Operating Agreement", "Aircraft Trust Agreement",
"Allocated Aircraft Value" and "Replacement Aircraft Indebtedness" to read as
follows:
"'Aggregate Commitment Amount' shall mean
$188,500,000 or, in the event of any increased commitments
in accordance with the Fourth Amendment to Loan Agreement,
198,500,000.
"Aircraft Operating Agreement" shall mean that
certain Amended and Restated Aircraft Operating Agreement
dated as of October 30, 2002 by and between the Aircraft
Trustee, as owner and World Travel, as operator, as the same
may be amended, supplemented, replaced or otherwise modified
from time to time.
'Aircraft Trust Agreement' shall mean that certain
Trust Agreement dated as of May 10, 2002 between World
Travel and the Aircraft Trustee, as the same may be amended,
supplemented, replaced or otherwise modified from time to
time.
'Allocated Aircraft Value' shall mean the aggregate
amount of Advances made by the Lenders on the Initial
Advance Date and the Replacement Aircraft Advance Date for
purposes of refinancing the Aircraft and purchasing the
Replacement Aircraft, respectively, and the allocated share
of Fees and Transaction Costs, less any prepayment of the
Loan Balance pursuant to Section 3 or 8.1 of the Loan
Agreement allocated to the Aircraft.
'Replacement Aircraft Indebtedness' shall mean
either (x) Indebtedness approved by the Required Lenders
and/or all Lenders pursuant to the terms of Section 7.5(p)
of the Loan Agreement represented by Capital Lease
Obligations (following a prepayment of the Loans pursuant to
Section 7.5(p)(iii)(A)), mortgage financings or purchase
money obligations (following a prepayment of the Loans
pursuant to Section 7.5(p)(iii)(A)) incurred by Wynn Resorts
or a direct Wholly Owned Subsidiary (which may be a trust)
of Wynn Resorts (other than any Loan Party) for the purpose
of financing all (following a prepayment of the Loans
pursuant to Section 7.5(p)(iii)(A)) or part of the purchase
price of a Replacement Aircraft, so long as: (a) the
principal amount of such Indebtedness does not exceed the
cost (including sales and excise taxes, installation and
delivery charges, interior buildout and outfitting and other
direct costs of, and other direct expenses paid or charged
in connection with, such purchase) of the Replacement
Aircraft purchased with the proceeds thereof, (b) the
aggregate principal amount of such Indebtedness does not
exceed $55.0 million at any time outstanding, and (c) except
as permitted pursuant to Section 7.6(i), no Loan Party (i)
provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute
Indebtedness) as to such Indebtedness, (ii) is directly or
indirectly liable as a guarantor or otherwise as to such
Indebtedness, or (iii) constitutes the lender of such
Indebtedness or (y) Indebtedness issued under and pursuant
to the Loan Documents."
Section 2.4. Appendix I of the Loan Agreement shall be and is hereby
amended by including in alphabetical order the following definitions:
"'First Amendment to Master Disbursement Agreement'
shall mean that certain First Amendment to Master
Disbursement Agreement dated as of July 21, 2004, by and
among Borrower, Capital Corp., Wynn Design, the
Administrative Agent, the Collateral Agent and the
Disbursement Agent.
"'Fourth Amendment to Loan Agreement' shall mean
that certain Fourth Amendment to Loan Agreement dated as of
July 21, 2004, by and among Borrower, the other Loan Parties
and the Lenders.
'Replacement Aircraft Advance' shall mean an
advance of funds by the Replacement Aircraft Lenders.
'Replacement Aircraft Advance Date' shall mean the
date on which the Replacement Aircraft Advance occurs.
'Replacement Aircraft Financing Documents' shall
mean that certain note, dated as of June 29, 2004, made by
World Travel BBJ, LLC in favor of Wynn Resorts.
'Replacement Aircraft Lenders' shall mean the
Aircraft Lenders which provide additional funds for the
purchase of the Replacement Aircraft."
Section 2.4. Schedule IA2 of the Loan Agreement shall be and is
hereby amended in its entirety to read as set forth in Schedule IA2 to this
Amendment:
SECTION 3. DIRECTION.
Section 3.1. Pursuant to Section 11.10 of the Loan Agreement, the
Required Lenders hereby approve the modifications to the Disbursement
Agreement described in the First Amendment to Master Disbursement Agreement in
the form attached hereto as Exhibit A and instruct the Collateral Agent to
execute and deliver such amendment as the FF&E Agent thereunder and any other
documents as may be necessary to effect such amendment.
Section 3.2. Pursuant to Section 11.10 of the Loan Agreement, upon
the sale by the Aircraft Trustee of the existing Aircraft and the receipt by
the Collateral Agent of the proceeds therefrom, the Required Lenders hereby
approve the release of the lien of the Aircraft Security Agreement on the
existing Aircraft and instruct the Collateral Agent and the Borrower to
execute and deliver such documents (including any amendments or modifications
to the Loan Documents) as may be necessary or desirable to effect such release
(it being acknowledged that the Aircraft Security Agreement provides for such
release in connection with the acquisition of the Replacement Aircraft and the
lien grant thereon pursuant to the Aircraft Security Agreement) and add the
Replacement Aircraft to the Aircraft Collateral under the Aircraft Security
Agreement.
Section 3.3. Pursuant to Section 7.5(p)(iii)(B)(2)(y) of the Loan
Agreement, the Required Lenders hereby acknowledge and agree that the
Replacement Aircraft Advance constitutes Replacement Aircraft Indebtedness
under the Loan Documents.
SECTION 4. CONSENT AND APPROVAL.
Subject to the satisfaction of Section 4.3 of the Loan Agreement and
notwithstanding the terms of Sections 2.3(d) (Advances; Limitations and
Limits), 2.4 (Preliminary Notice Review), 2.5 (Advance Dates) and Section 6.11
(Use of Proceeds) of the Loan Agreement, the Required Lenders hereby (i)
consent and approve to the timing, review and process of Replacement Aircraft
Advance to be made and (ii) authorize and direct the Collateral Agent to
review and approve any Project Budget/Schedule Amendment Certificate (as
defined in the Disbursement Agreement) submitted with respect to Project Costs
associated with the Replacement Aircraft, in each case, pursuant to the terms
of the First Amendment to Master Disbursement Agreement.
SECTION 5. 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 the other Loan Parties and this Amendment
constitutes the legal, valid and binding obligation, contract and
agreement of the Borrower and the other Loan Parties enforceable
against it and the other Loan Parties 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 Loan Documents, as amended by this Amendment,
constitute the legal, valid and binding obligations, contracts and
agreements of the Borrower and the other Loan Parties enforceable
against it and the other Loan Parties which are parties thereto 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;
(d) the execution, delivery and performance by the Borrower
and the other Loan Parties 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 or 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 5(c);
(e) as of the date hereof and after giving effect to this
Amendment, no Default or Event of Default has occurred which is
continuing; and
(f) each of 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 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.
SECTION 6. EFFECTIVENESS.
This Amendment shall become effective on July 21, 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 each of the parties thereto, shall be in form and
substance satisfactory to each party thereto 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 Lenders shall have received evidence satisfactory
to them that the Wynn Credit Agreement has been amended substantially
as proposed in the form annexed hereto as Exhibit B;
(c) the Lenders shall have received evidence satisfactory
to them that the Borrower shall have received an amount at least
equal to $50,000,000 in the form a capital contribution;
(d) the representations and warranties of the Borrower set
forth in Section 4 hereof are true and correct in all material
respects on and with respect to the date hereof; and
(e) Since the Closing Date, there shall have been no
Material Adverse Effect.
SECTION 7. FEES AND EXPENSES.
Borrower agrees to pay all the reasonable fees and expenses of the
Collateral Agent, Arrangers and the Lenders (including the reasonable expenses
of one counsel) in connection with the negotiation and preparation of this
Amendment.
SECTION 8. MISCELLANEOUS.
Section 8.1. Continuing Obligations. (a) 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,
including, without limitation, the guaranty of the additional obligations of
the Borrower set forth in this Amendment.
(b) Each Loan Party, including, without limitation, the Borrower,
hereby ratifies and affirms in all respects its obligations under the Security
Documents to which it is a party and acknowledges that such Security Documents
shall remain in full force and effect, including, without limitation, the
additional obligations of the Borrower set forth in this Amendment and the
replacement of the existing Aircraft with the Replacement Aircraft.
Section 8.2. 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 8.3. 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 8.4. 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 8.5. Counterparts. This Amendment may be executed in any
number of counterparts, each executed counterpart constituting an original but
all together only one Amendment.
Section 8.6. 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 21st day of July, 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,
General Counsel &
Secretary
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
Bank of America, N.A., as Lender
By: /s/ Peter J. Vitale
-------------------------------
Name: Peter J. Vitale
Title: Senior Vice President
GMAC Commercial Mortgage Corporation,
as Lender
By: /s/ Dilip Petigara
--------------------------------
Name: Dilip Petigara
Title: Assistant Vice President
The CIT Group/Equipment Financing,
Inc., as Lender
By: /s/ Michael J. Misulonas
-------------------------------
Name: Michael J. Misulonas
Title: Senior Credit Officer
Ares VII CLO Ltd., as Lender
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., as Lender
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
Ableco Finance LLC, as Lender
By: /s/ Kevin Genda
--------------------------------
Name: Kevin Genda
Title: Senior Vice President
A3 Funding LP, as Lender
By: A3 Fund Management LLC, its
General Partner
By: /s/ Kevin Genda
--------------------------------
Name: Kevin Genda
Title: Vice President
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.
WELLS FARGO BANK , NATIONAL ASSOCIATION
(f/k/a Wells Fargo Bank Nevada,
National Association), as Collateral
Agent
By /s/ Peter Madsen
-------------------------------------
Name: Peter 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 21st day of
July, 2004.
WYNN RESORTS, LIMITED,
a Nevada corporation
By /s/ Marc H. Rubinstein
-----------------------------------------
Name: Marc H. Rubinstein
Title: Senior Vice President, General
Counsel & Secretary
VALVINO LAMORE, LLC,
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, General
Counsel & Secretary
WYNN LAS VEGAS CAPITAL CORP., a Nevada
corporation,
By: /s/ Marc H. Rubinstein
----------------------------------------
Name: Marc H. Rubinstein
Title: Senior Vice President, General
Counsel & Secretary
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,
General Counsel &
Secretary
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,
General Counsel & Secretary
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,
General Counsel & Secretary
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,
General Counsel & Secretary
WORLD TRAVEL, LLC,
a Nevada limited liability company,
By: Wynn Las Vegas, LLC,
a Nevada limited liability company,
its sole member
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,
General Counsel &
Secretary
LAS VEGAS JET, LLC,
a Nevada limited liability company,
By: Wynn Las Vegas, LLC,
a Nevada limited liability company,
its sole member
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,
General Counsel &
Secretary
WYNN SHOW PERFORMERS, LLC,
a Nevada limited liability company,
By: Wynn Las Vegas, LLC,
a Nevada limited liability company,
its sole member
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, General
Counsel & Secretary
Exhibit 10.2
ACKNOWLEDGEMENT AND AGREEMENT
WHEREAS, WYNN LAS VEGAS, LLC, a Nevada limited liability company (the
"Borrower"), WELLS FARGO BANK, NATIONAL ASSOCIATION (as successor by merger to
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 thereto as a lender (each, a
"Lender") 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, the Second Amendment to Loan Agreement dated December 30, 2002, the
Third Amendment to Loan Agreement dated as of May 3, 2004 and the Fourth
Amendment to Loan Agreement dated as of July 21, 2004 (as amended,
supplemented or otherwise modified from time to time, the "Loan Agreement").
Capitalized terms used, but not otherwise defined in this Acknowledgement and
Agreement, shall have those meanings assigned to such terms in Appendix 1 to
the Loan Agreement, as amended.
WHEREAS, pursuant to Section 7.5(p) of the Loan Agreement, the
Borrower may sell the existing Aircraft and substitute a replacement aircraft
therefor pursuant to the requirements of the Loan Documents.
WHEREAS, the Borrower sold the existing Aircraft and substituted a
1999 Boeing 737-79U Business Jet aircraft bearing manufacturer's serial number
29441 and Federal Aviation Administration Registration Number N88WZ, including
two CFM International, Inc. model CFM 56-7B engines bearing manufacturer's
serial numbers 874-373 and 874-366 (the "Replacement Aircraft") therefor.
WHEREAS, the Borrower desires to increase Allocated Commitment
attributable to Aircraft to facilitate the Borrower's purchase of the
Replacement Aircraft as set forth in the Fourth Amendment, but the majority of
the undersigned Lenders have not approved any increase to the Allocated
Commitment attributable to the Aircraft or any increase in the Aggregate
Commitment Amount.
WHEREAS, pursuant to Section 7.5(p)(iii)(B)(2)(y) of the Loan
Agreement, among other things, the Required Lenders must approve in writing
any Replacement Aircraft Indebtedness which results in the Aggregate
Commitment Amount being increased.
WHEREAS, the term "Required Lenders" is defined in Loan Agreement as
Lenders holding more than 50% of the aggregate amount of Credit Exposure of
all Lenders outstanding at such time, provided, among other things, that (A)
for purposes of Section 7.5(p) of the Loan Agreement, and (B) for purposes of
(i) Sections 4.8, 5 and 9.2 of the Aircraft Security Agreement and for the
Aircraft Operating Agreement, and (ii) any amendment, modification or waiver
to the Loan Agreement or any Loan Document with respect to the Aircraft, any
determination of "Required Lenders" shall only include that portion of the
Lenders' Commitment or Credit Exposure as the case may be, which relates to
the Aircraft. Therefore, Lenders holding more than 50% of the aggregate amount
of Credit Exposure which relates to the Aircraft are referred to herein as
"Required Aircraft Lenders."
WHEREAS, the undersigned Lenders hold 100% of the aggregate amount of
Credit Exposure which relates to the Aircraft (the "Aircraft Lenders").
WHEREAS, the Borrower acquired the Replacement Aircraft and included
the same as Aircraft Collateral pursuant to the Loan Documents and,
immediately subsequent thereto, sold the existing Aircraft free and clear of
the lien of the Aircraft Security 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:
1. The undersigned Aircraft Lenders hereby agree and acknowledge that
pursuant to Section 7.5(p)(iii)(B)(2)(y) of the Loan Agreement (a)
Replacement Aircraft Advances in an aggregate principal amount of up
to $10,000,000 are hereby approved, (b) such Replacement Aircraft
Advances in an aggregate principal amount of up to $10,000,000 shall
constitute Replacement Aircraft Indebtedness under the Loan Agreement
and Loan Documents.
2. The undersigned Aircraft Lenders hereby approve Sections 2.3, 2.4
and 2.5 (incorrectly numbered 2.4) of the Fourth Amendment; provided
that such approval shall not constitute the approval of the substance
of any documents defined in such sections except for amendments to
the "Aircraft Operating Agreement" and "Aircraft Trust Agreement"
(each as defined in the Fourth Amendment) to incorporate the
Replacement Aircraft, or as otherwise expressly provided herein.
3. The undersigned Aircraft Lenders hereby agree and acknowledge that
the appraisal for the particular Replacement Aircraft described in
this Acknowledgement and Agreement delivered to each of the Aircraft
Lenders is satisfactory in form and substance and the undersigned
Aircraft Lenders hereby waive the requirement in Section 4.7(c)(i)(B)
of the Aircraft Security Agreement that this particular Replacement
Aircraft must have a Fair Market Value of not less than the Allocated
Aircraft Value, as such term has been amended in the Fourth Amendment
to the Loan Agreement. Notwithstanding the foregoing, the requirement
in Section 4.7(c)(i)(B) of the Aircraft Security Agreement that a
Replacement Aircraft must have a Fair Market Value of not less than
the Allocated Aircraft Value, as such term has been amended in the
Fourth Amendment to the Loan Agreement, remains in full force and
effect with respect to any future replacement aircraft.
4. The parties agree that none of the terms and conditions of the
Loan Agreement, the Aircraft Security Agreement or any other Loan
Document which require the approval of the Required Aircraft Lenders
have been modified by any document or instrument except as
specifically agreed to in writing by the Required Aircraft Lenders
and such terms and conditions remain in full force and effect.
[Intentionally Blank]
IN WITNESS WHEREOF, the undersigned have executed this
Acknowledgement and Agreement as of September 1, 2004.
AIRCRAFT LENDERS:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Lender
By /s/ Ann Naegele
---------------------------------
Name: Ann Naegele
Title: Vice President
THE CIT GROUP/EQUIPMENT FINANCING, INC.,
as Lender
By /s/ Carl E. Myrick
----------------------------------
Name: Carl E. Myrick
Title: Senior Vice President
BANK OF AMERICA, N.A., NEVADA BRANCH,
as Lender
By /s/ Peter J. Vitale
----------------------------------
Name: Peter J. Vitale
Title: Senior Vice President
BORROWER:
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,
General Counsel &
Secretary
Acknowledged as of September 1, 2004.
WELLS FARGO BANK , NATIONAL ASSOCIATION
(as successor by merger to Wells Fargo
Bank Nevada, National Association),
as Collateral Agent
By /s/ DeAnn Madsen
-------------------------------------
Name: DeAnn Madsen
Title: Trust Officer