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WYNN RESORTS LTD | U.S. BANK NATIONAL ASSOCIATION, | Wynn Las Vegas, LLC,. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit 10.6
COMMITMENT TO PAY PROJECT COSTS
THIS COMMITMENT TO PAY PROJECT COSTS, dated as of March 31, 2006 (this “Commitment”), is made by WYNN RESORTS, LIMITED, a Nevada corporation (“WRL”), in favor of DEUTSCHE BANK TRUST COMPANY AMERICAS, as the administrative agent acting on behalf of itself and the Bank Lenders pursuant to the Bank Credit Agreement (together with its successors and assigns in such capacity, the “Bank Agent”), U.S. BANK NATIONAL ASSOCIATION, in its capacity as trustee under the 2014 Notes Indenture (together with its successors and assigns in such capacity, the “2014 Notes Indenture Trustee”), each other Agent Beneficiary (as defined below) from time to time party to the Intercreditor Agreement. This Commitment is made and delivered pursuant to the Master Disbursement Agreement (as amended, modified, supplemented or amended and restated from time to time, the “Disbursement Agreement”), dated as of December 14, 2004 among Wynn Las Vegas, LLC, a Nevada limited liability company (the “Company”), the Bank Agent, the 2014 Notes Indenture Trustee and Deutsche Bank Trust Company Americas, as the disbursement agent (together with its successors and assigns in such capacity, the “Disbursement Agent”). The Bank Agent, the 2014 Notes Indenture Trustee, the Bank Lenders, and the 2014 Noteholders under their respective “Facility Agreements” (such term as used in this Commitment having the meaning given in the Intercreditor Agreement), together with any “Project Credit Parties” that are from time to time parties to the Intercreditor Agreement pursuant to Section 10.15 thereof and any “First Lien Secured Party” or “Second Lien Secured Party” represented by any such “Project Credit Party” (each such term as used in this Commitment having the meaning given in the Intercreditor Agreement), are hereinafter referred to as the “Lender Beneficiaries”. The Bank Agent, the 2014 Notes Indenture Trustee and any other “Project Credit Parties” as provided in the foregoing sentence are hereinafter referred to as the “Agent Beneficiaries”. Except as otherwise specified in this Commitment, capitalized terms used but not defined herein shall have the respective meanings given them in Exhibit A to the Disbursement Agreement, and the Rules of Interpretation contained in said Exhibit A shall apply hereto.
RECITALS
A. Phase I Project. The Company has constructed and now owns and operates Wynn Las Vegas, an approximately 2,700-room hotel, casino, golf course and entertainment complex with related ancillary facilities, located on the site of the former Desert Inn Resort & Casino (the “Phase I Project”).
B. Phase II Project. The Company intends to develop, construct, own and operate an expansion of the Phase I Project, consisting of a 2,054-suite hotel tower, additional casino space and additional restaurants, a spa, swimming pools, and retail and convention space with related ancillary facilities, located on approximately 20 acres of land adjacent to the Phase I Project, tentatively named “Encore at Wynn Las Vegas” (the “Phase II Project” and, collectively with the Phase I Project, the “Projects”).
C. 2014 Notes Indenture. The Company, Wynn Las Vegas Capital Corp., a Nevada corporation (“Capital Corp.”), certain guarantors party thereto and the 2014 Notes Indenture Trustee have entered into the First Mortgage Notes Indenture (as amended, amended and restated, supplemented or otherwise modified from time to time, including any permitted refinancings thereof, the “2014 Notes Indenture”), pursuant to which the Company and Capital Corp. have issued the 2014 Notes and may issue Additional Notes, as more particularly described therein.
D. Bank Credit Facility. The Company, the Bank Agent, the Bank Lenders and the other parties thereto have entered into the Credit Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, including any permitted refinancings thereof, the “Bank Credit Agreement”), pursuant to which the Bank Lenders have agreed, subject to the terms thereof, to provide
the Bank Credit Facility to the Company to finance a portion of the costs related to the Projects and for working capital and general corporate purposes, as more particularly described therein.
E. Disbursement Agreement. The Company, the Bank Agent, the 2014 Notes Indenture Trustee and the Disbursement Agent have entered into the Disbursement Agreement in order to set forth, among other things, (a) the mechanics for and allocation of the Company’s request for advances under the various Facilities and from the Company’s Funds Account and (b) the conditions precedent to the Closing Date, to the initial advance and to subsequent advances. This Commitment is being entered into to document WRL’s commitment to contribute funds to the Company as contemplated in the definition of the term “Available Funds” under the Disbursement Agreement.
F. Benefit to WRL. The Company is a wholly owned subsidiary of WRL and acknowledges that it will benefit, directly and indirectly by the increase in the Available Funds that will occur under the Disbursement Agreement by reason of this Commitment.
COMMITMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, WRL hereby consents and agrees (and each of the other parties hereto agrees and accepts) as follows:
1. Commitment.
(a) The undersigned WRL, as primary obligor and not merely as surety, unconditionally and irrevocably guarantees to each of the Bank Agent, the 2014 Notes Indenture Trustee and any other Agent Beneficiary the performance by the Company of its obligation under the Disbursement Agreement to pay Project Costs as the same become due and payable together with all reasonable expenses incurred by the Disbursement Agent or the Lender Beneficiaries in enforcing such obligations or the terms hereof, including, without limitation, reasonable fees and expenses of legal counsel (collectively, the “Obligations”), and agrees that if for any reason the Company shall at any time, not have sufficient funds to pay Project Costs as and when they are due, WRL will pay the same forthwith. Notwithstanding any other provision hereof, WRL’s aggregate liability under this Section 1(a), excluding any amounts payable under Section 16 below shall in no event exceed the “Liability Cap.” As used herein, the term “Liability Cap” shall mean Two Hundred Fifteen Million Three Hundred Thousand Dollars ($215,300,000); provided, however, that at any time and from time to time, if any category of Available Funds has increased from the amount set forth on Appendix VIII to the Company’s Phase II Approval Date Request dated March 14, 2006, then WRL shall be entitled to submit to the Disbursement Agent a certificate evidencing such increase, and upon written confirmation by the Disbursement Agent of the same (not to be unreasonably withheld), the Liability Cap shall be reduced by the amount of such increase in Available Funds; provided, further, however, that in no event shall the Liability Cap be reduced if as a result of such reduction the Company shall cease to be In Balance under the Disbursement Agreement. At such time as the Liability Cap equals zero (0), then this Commitment shall terminate and be of no further force or effect. WRL waives notice of acceptance of this Commitment and of any obligation to which it applies or may apply under the terms hereof, and waives diligence, presentment, demand of payment, notice of dishonor or non-payment, protest, notice of protest, of any such obligations, suit or taking other action by the Disbursement Agent or any Lender Beneficiary against, and giving any notice of default or other notice to, or making any demand on, any party liable thereon (including WRL).
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(b) This Commitment is an absolute, unconditional, continuing and irrevocable guaranty of payment and not of collectibility and is in no way conditioned on or contingent upon any attempt to enforce in whole or in part the Company’s obligations to the Lender Beneficiaries and the Disbursement Agent. Subject to the Liability Cap set forth in Section 1(a) above, if the Company shall at any time, not have sufficient funds to pay Project Costs, as and when they are due, WRL shall forthwith pay such Obligations in immediately available funds. Each failure by the Company to pay any Obligations shall give rise to a separate cause of action herewith, and separate suits may be brought hereunder as each cause of action arises.
(c) Any Lender Beneficiary may, in accordance with the Financing Agreements or any other Facility Agreement, at any time and from time to time (whether or not after revocation or termination of this Commitment) without the consent of or notice to WRL, except such notice as may be required by the Financing Agreements or any other Facility Agreement or applicable law which cannot be waived, without incurring responsibility to WRL, without impairing or releasing the obligations of WRL hereunder, upon or without any terms or conditions and in whole or in part, (i) change the manner, place and terms of payment or change or extend the time of payment of, renew, or alter any Obligation, or any obligations and liabilities (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof or in any manner modify, amend or supplement the terms of any Facility Agreement or any other Facility Agreement, the Disbursement Agreement or any documents, instruments or agreements executed in connection therewith (in each case, with the consent of the Company if required by such documents) and the guaranty herein made shall apply to the Obligations as so changed, extended, renewed, modified, amended, supplemented or altered in any manner; (ii) exercise or refrain from exercising any rights against the Company or others (including WRL) or otherwise act or refrain from acting; (iii) add or release any other guarantor from its obligations without affecting or impairing the obligations of WRL hereunder; (iv) settle or compromise any Obligations and/or any obligations and liabilities (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part hereof to the payment of any obligations and liabilities which may be due to any Lender Beneficiary or others; (v) sell, exchange, release, surrender, realize upon or otherwise deal with in any manner or in any order any property by whomsoever pledged or mortgaged to secure or howsoever securing the Obligations or any liabilities or obligations (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof and/or any offset thereagainst; (vi) apply any sums by whomsoever paid or howsoever realized to any obligations and liabilities of the Company and the other Loan Parties to the Lender Beneficiaries under any of the Financing Agreements or any other Facility Agreement in the manner provided therein regardless of what obligations and liabilities remain unpaid; (vii) consent to or waive any breach of, or any act, omission or default under, any Financing Agreement or any other Facility Agreement (including the obligation to achieve Final Completion with respect to either Project) or otherwise amend, modify or supplement (with the consent of the Company or other Loan Parties, if required by such documents) any Financing Agreement or any other Facility Agreement (including the obligation to achieve Final Completion with respect to either Project) or any of such other instruments or agreements; and/or (viii) act or fail to act in any manner referred to in this Commitment which may deprive WRL of any right to subrogation which WRL may, notwithstanding the provisions of Section 7, have against the Company or the other Loan Parties to recover full indemnity for any payments made pursuant to this Commitment or of any right of contribution which WRL may have against any other party.
(d) No invalidity, irregularity or unenforceability of the Obligations shall affect, impair, or be a defense to the guaranty set forth herein, which is a primary obligation of WRL.
(e) This is a continuing guaranty and all obligations to which it applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
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In the event that, notwithstanding the provisions of Section 1(a) hereof, the guaranty set forth herein shall be deemed revocable in accordance with applicable law, then any such revocation shall become effective only upon receipt by each Agent Beneficiary and the Disbursement Agent of written notice of revocation signed by WRL. No revocation or termination hereof shall affect in any manner rights arising under this Commitment with respect to Obligations (i) arising prior to receipt by each Agent Beneficiary and the Disbursement Agent of written notice of such revocation or termination and the sole effect of revocation and termination hereof shall be to exclude from this Commitment any Obligations thereafter arising which are unconnected with Obligations theretofore arising or transactions theretofore entered into or (ii) arising as a result of an Event of Default under the Disbursement Agreement occurring by reason of the revocation or termination of this Commitment.
2. Representations and Warranties. WRL makes the representations and warranties set forth below to the Funding Agents and the Disbursement Agent as of the date hereof:
(a) WRL is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite corporate power and authority to (i) carry on its business as now conducted, (ii) own and operate the properties it purports to own, (iii) incur indebtedness and (iv) execute, deliver and perform under this Commitment.
(b) WRL has duly authorized, executed and delivered this Commitment and neither the execution and delivery hereof nor the consummation of the transactions contemplated hereby nor the compliance with the terms hereof (i) contravenes the formation documents or any other Legal Requirement applicable to or binding on WRL, (ii) contravenes or results in any breach or constitutes any default under, or results in or requires the creation of any Lien upon any of WRL’s properties or under any agreement or instrument to which WRL is a party or by which it or any of its properties may be bound, or (c) does or will require the consent or approval of any Person which has not previously been obtained.
(c) All governmental authorizations and actions necessary to be obtained, made or taken by WRL in connection with the execution and delivery by WRL of this Commitment and the performance of its Obligations hereunder have been obtained or performed and are valid and in full force and effect.
(d) This Commitment constitutes the legal, valid and binding obligation of WRL, enforceable against WRL in accordance with the terms of this Commitment, subject to applicable bankruptcy, insolvency, moratorium and other similar laws affecting the enforcement of creditors’ rights generally and general principles of equity (whether enforcement is sought by proceedings in equity or law).
(e) There is no pending or, to the best of WRL’s knowledge, threatened action or proceeding affecting WRL before any court, governmental agency or arbitrator, which might reasonably be expected to materially and adversely affect the financial condition, results of operations, business or prospects of WRL or the ability of WRL to perform its obligations under this Commitment.
(f) WRL possesses all franchises, certificates, licenses, permits and other governmental authorizations and approvals necessary for it to perform its obligations under this Commitment.
(g) WRL has established adequate means of obtaining financial and other information pertaining to the businesses, operations and condition (financial and otherwise) of the Company, and WRL now is and hereafter will be familiar with the businesses, operations and condition (financial and otherwise) of the Company.
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(h) WRL is not an investment company within the meaning of the Investment Company Act of 1940.
(i) WRL is, and immediately after giving effect to the incurrence of its obligations under th






