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 pro
