Exhibit 10.74
FORM OF
WYNN RESORTS AGREEMENT
Dated as
of , 2002
This WYNN RESORTS AGREEMENT (this "Agreement") is made by Wynn Resorts, Limited, a Nevada corporation ("Wynn Resorts"), in favor of Wells Fargo Bank, National Association, as trustee (in such capacity, the "Trustee") for the benefit of the holders of the second mortgage notes (the "Notes") issued pursuant to the Indenture (as defined below).
PRELIMINARY STATEMENTS:
1. Wynn Las Vegas, LLC, a Nevada limited liability company and a wholly-owned subsidiary of Wynn Resorts ("Wynn Las Vegas"), proposes to develop and own the Le Rêve Casino Resort, a large scale luxury hotel and destination casino resort, with related parking structure and golf course facilities to be developed on the Project site, all as more particularly described in the applicable exhibit to the Disbursement Agreement (the "Project").
2. Wynn Resorts and Wynn Las Vegas desire to finance the development and construction of the Project with, among other things, the proceeds of the issuance by Wynn Las Vegas and Wynn Las Vegas Capital Corp. of Notes issued under the Indenture. In connection with such financing, Wynn Las Vegas and Wynn Las Vegas Capital Corp., as joint and several obligors, Desert Inn Water Company, LLC, Wynn Design & Development, LLC, Wynn Resorts Holdings, LLC, Las Vegas Jet, LLC, World Travel, LLC, Palo, LLC and Valvino Lamore, LLC, as guarantors, and the Trustee have entered into an indenture, dated as of the date of this Agreement (the "Indenture").
3. It is a condition to the issuance of the Notes under the Indenture that Wynn Resorts shall have executed and delivered this Agreement.
4. Wynn Resorts acknowledges that it will receive direct and indirect benefits from the issuance of the Notes under the Indenture and the use of the proceeds thereof in connection with the development, construction and operation of the Project.
5. All terms capitalized but not otherwise defined in this Agreement shall have the meanings ascribed to them in the Indenture, as in effect from time to time.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Restrictions on Incurrence of Indebtedness and Guarantees by Wynn Resorts. Wynn Resorts hereby agrees that it shall not:
Excluded Project Assets or assets or properties that individually and in the aggregate have a fair market value of less than $10.0 million) in favor of any Person to secure (i) any Indebtedness of any of its Affiliates, (ii) any Guarantee by Wynn Resorts of Indebtedness of any of its Affiliates, or (iii) any Indebtedness incurred by Wynn Resorts, unless:
For purposes of this Agreement, "Floor Plan Financing" means the floor plan financing to be obtained by Kevyn, LLC in respect of the Ferrari and Maserati automobile dealership forming part of the Project and located on the Project Site in an aggregate principal amount at any time outstanding not to exceed $5.0 million; provided that neither Issuer, no Restricted Entity nor any Restricted Subsidiary of Wynn Las Vegas or any Restricted Entity:
SECTION 2. Automatic Release Provisions. Notwithstanding anything to the contrary in Section 1 above, the restrictions contained in Section 1 shall automatically cease to apply to Wynn Resorts, and any Parent Guarantee or Parent Security Agreement will be automatically released and Wynn Resorts shall have no further liability thereunder, from and after such time as either:
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The Trustee shall take such actions as Wynn Resorts may request, at the expense of Wynn Resorts, to evidence the forgoing release, including without limitation the return of assets pledged as collateral and the execution and delivery of related instruments of transfer, lien releases, reconveyances, termination statements and any similar documents and instruments.
SECTION 3. Amendments to Wynn Put Agreement. Wynn Resorts hereby agrees that it shall not amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, or otherwise fail to enforce, or terminate or abandon, any of the provisions of the Wynn Put Agreement, if such amendment, modification, waiver or other change, failure to enforce, termination or abandonment (individually or collectively with all such amendments, modifications, waivers and other changes, failures to enforce, terminations or abandonments taken as a whole) would:
Notwithstanding the provisions of this Agreement, in no event shall Wynn Resorts be required, by reason of granting the Parent Guarantee or any security interest pursuant to this Agreement, to become a Restricted Entity or otherwise to become subject to the restrictive covenants or other terms of the Indenture.
SECTION 4. Separateness from Issuers, Restricted Entities, their Restricted Subsidiaries and the Completion Guarantor. Wynn Resorts hereby agrees that, for so long as there continue to be any outstanding Obligations under the Credit Agreement and the Loan Documents (as defined in the Credit Agreement) (the "Bank Documents") or under the Indenture or any Collateral Document (the "Indenture Documents"), it shall comply with each of the following:
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Resorts shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities. Wynn Resorts shall not commingle its funds with those of the Wynn Group Entities, and in all transactions involving the Wynn Group Entities and Wynn Resorts, the separate funds of each of the Wynn Group Members and Wynn Resorts shall be clearly traceable. The assets of Wynn Resorts shall remain identifiably separate from those of the Wynn Group Members such that there will be no material difficulty in segregating the assets of the Wynn Group Members from those of Wynn Resorts.
SECTION 5. Representations and Warranties. Wynn Resorts hereby represents and warrants as follows:
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or similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
SECTION 6. Further Assurances. Wynn Resorts shall execute and deliver such additional instruments, certificates or documents, and take all such actions as may be reasonably required from time to time in order to:
Upon the exercise by the Trustee or any holder of Notes of any power, right, privilege or remedy under this Agreement, the Parent Guarantee or the Parent Security Agreement which requires any consent, approval, recording, qualification or authorization of any governmental authority (including the Nevada PUC or any Gaming Authority), Wynn Resorts shall execute and deliver all applications, certifications, instruments and other documents and papers that may be required from Wynn Resorts for such governmental consent, approval, recording, qualification or authorization.
SECTION 7. Reaffirmation of Obligations. Pursuant to (i) Section 7 of the Amended and Restated Commitment Letter, dated as of June 14, 2002 (the "Commitment Letter"), among Valvino Lamore, LLC, Wynn Resorts Holdings, LLC, Wynn Las Vegas and the Administrative Agent and the other Participating Institutions (as defined therein), and (ii) Section 10 of the Engagement Letter (as defined therein), Wynn Resorts hereby agrees, effective as of the date of the Commitment Letter and the Engagement Letter, respectively, that it is jointly and severally liable for all of the liabilities and obligations relating to or arising out of the duties, responsibilities and obligations of Valvino Lamore, LLC, Wynn Resorts Holdings, LLC and Wynn Las Vegas under the Commitment Letter and the Engagement Letter, respectively, on the terms and subject to the conditions of the Commitment Letter and the Engagement Letter, respectively.
SECTION 8. Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 10. Choice of Law; Jurisdiction; Waivers. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. To the fullest extent permitted by applicable law, Wynn Resorts hereby irrevocably submits to the non-exclusive jurisdiction of any New York State court or Federal court sitting in the County of New York in respect of any suit, action or
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proceeding arising out of or relating to the provisions of this Agreement, the Parent Guarantee or the Parent Security Agreement and irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court. The parties hereto hereby waive, to the fullest extent permitted by applicable law, any objection that they may now or hereafter have to the laying of venue of any such suit, action or proceeding brought in any such court, and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. The parties hereto hereby waive, to the fullest extent permitted by applicable law, any right to trial by jury with respect to any action or proceeding arising out of or relating to this Agreement, the Parent Guarantee or the Parent Security Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Wynn Resorts Agreement to be executed by their respective officers or authorized signatories thereunto duly authorized, as of the date first written above.
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Exhibit A
FORM OF PARENT GUARANTEE
[To be conformed from Guarantee and Collateral Agreement]
Exhibit B
FORM OF PARENT SECURITY AGREEMENT
[To be conformed from Guarantee and Collateral Agreement]