UNDERWRITING AGREEMENT

 

                                                                     Exhibit 1

 

 

 

                               7,000,000 Shares

 

                             WYNN RESORTS, LIMITED

 

                                 Common Stock

 

                                ($0.01 Par Value)

 

 

                         EQUITY UNDERWRITING AGREEMENT

 

 

                                                                   May 7, 2004

 

 

 

DEUTSCHE BANK SECURITIES INC.

   As Representative of the several

   Underwriters named in Schedule I

   attached hereto

 

 

c/o   Deutsche Bank Securities Inc.

60 Wall Street

New York, New York 10005

 

Ladies and Gentlemen:

 

         Wynn Resorts, Limited, a Nevada corporation (the "Company"), proposes

to sell to the several underwriters (the "Underwriters") named in Schedule I

hereto, for whom Deutsche Bank Securities Inc. ("you" or "DBSI") is acting as

the representative (the "Representative"), an aggregate of 7,000,000 shares

(the "Firm Shares") of the Company's Common Stock, par value $0.01 per share

(the "Common Stock"). The respective amounts of the Firm Shares to be so

purchased by the several Underwriters are set forth opposite their names in

Schedule I hereto. The Company also proposes to sell at the Underwriters'

option an aggregate of up to 1,050,000 additional shares (the "Option Shares")

of the Company's Common Stock as set forth below.

 

         As the Representative, you have advised the Company (a) that you are

authorized to enter into this Agreement on behalf of the several Underwriters,

and (b) that the several Underwriters are willing, acting severally and not

jointly, to purchase the Firm Shares set forth opposite their respective names

in Schedule I, plus their pro rata portion of the Option Shares if you elect

to exercise the over-allotment option in whole or in part for the account of

the several Underwriters. The Firm Shares and the Option Shares (to the extent

the aforementioned option is exercised) are herein collectively called the

"Shares." The offering and sale of the Shares is referred to herein as the

"Offering".

 

         In consideration of the mutual agreements contained herein and of the

interests of the parties in the transactions contemplated hereby, the parties

hereto agree as follows:

 

         1.        REPRESENTATIONS AND WARRANTIES OF THE COMPANY.

 

                  The Company represents and warrants to each of the

Underwriters as follows:

 

                  (a) The Company has filed with the Securities and Exchange

Commission (the "Commission") a registration statement on Form S-3 (No.

333-114022), and related prospectuses for the registration under the

Securities Act of 1933, as amended (the "Securities Act"), of the Company's

Common Stock and other securities, as described therein, and the offering

thereof from time to time in accordance with Rule 415 of the rules and

regulations of the Commission (the "Rules and Regulations") under the

Securities Act, which registration statement, as so amended (including

post-effective amendments, if any), has been declared effective by the

Commission and copies of which have heretofore been delivered or made

available to the Underwriters. The registration statement, as amended at the

time it became effective, including the exhibits and information (if any)

deemed to be part of the registration statement at the time of effectiveness

pursuant to Rule 430A or 434(d) under the Securities Act, is hereinafter

referred to as the "Registration Statement." If the Company has filed or is

required pursuant to the terms hereof to file a registration statement

pursuant to Rule 462(b) under the Securities Act increasing the size of the

Offering by registering additional shares of Common Stock (a "Rule 462(b)

Registration Statement"), then, unless otherwise specified, any reference

herein to the term "Registration Statement" shall be deemed to include such

Rule 462(b) Registration Statement. Other than a Rule 462(b) Registration

Statement, which, if filed, becomes effective upon filing, no other document

with respect to the Registration Statement relating to this Offering has

heretofore been filed with the Commission. All of the Shares have been

registered under the Securities Act pursuant to the Registration Statement or,

if any Rule 462(b) Registration Statement is filed, will be duly registered

under the Securities Act with the filing of such Rule 462(b) Registration

Statement. No stop order suspending the effectiveness of either the

Registration Statement or the Rule 462(b) Registration Statement, if any, has

been issued and no proceeding for that purpose has been initiated or

threatened by the Commission. The Company, if required by the Rules and

Regulations of the Commission or by the Securities Act, proposes to file the

Prospectus (as defined below) with the Commission pursuant to Rule 424(b)

under the Securities Act ("Rule 424(b)"). The base prospectus contained in the

Registration Statement, at the time such registration statement was declared

effective, as supplemented by the final prospectus supplement relating to the

Offering in the form in which it is to be filed with the Commission pursuant

to Rule 424(b), is hereinafter referred to as the "Prospectus," except that if

any revised prospectus or prospectus supplement shall be provided to the

Underwriters by the Company for use in connection with the Offering which

differs from the Prospectus (whether or not such revised prospectus or

prospectus supplement is required to be filed by the Company pursuant to Rule

424(b)), the term "Prospectus" shall also refer to such revised prospectus or

prospectus supplement, as the case may be, from and after the time it is first

provided to the Underwriters for such use. Any reference herein to the

Registration Statement or the Prospectus shall be deemed to refer to and

include the documents incorporated by reference therein pursuant to Item 12 of

Form S-3 which were filed under the Securities Exchange Act of 1934, as

amended (the "Exchange Act") on or before the effective date of the

Registration Statement or the date of the Prospectus, as the case may be, and

any reference herein to the terms "amend", "amendment" or "supplement" with

respect to the Registration Statement or the Prospectus shall be deemed to

refer to and include (i) the filing, on or prior to the Closing Date, of any

document under the Exchange Act after the effective date of the Registration

Statement or the date of the Prospectus, as the case may be, which is

incorporated therein by reference and (ii) any such document so filed. All

references in this Agreement to the Registration Statement, the Rule 462(b)

Registration Statement and the Prospectus, or any amendments or supplements to

any of the foregoing shall be deemed to include any copy thereof filed with

the Commission pursuant to its Electronic Data Gathering, Analysis and

Retrieval System (the "EDGAR System").

 

                  (b) At the time of the effectiveness of the Registration

Statement or any Rule 462(b) Registration Statement or the effectiveness of

any post-effective amendment to the Registration Statement, when the

Prospectus is first filed with the Commission pursuant to Rule 424(b) or Rule

434 under the Securities Act ("Rule 434"), when any supplement to or amendment

of the Prospectus is filed with the Commission, when any document filed under

the Exchange Act (and incorporated by reference) was or is filed and at the

Closing Date, the Registration Statement and the Prospectus and any such

amendments thereof and supplements thereto contained or will contain all

statements which are required to be stated therein and complied or will comply

in all material respects with the applicable provisions of the Securities Act,

the Exchange Act and the Rules and Regulations, as applicable. If Rule 434 is

used, the Company will comply with the requirements of Rule 434 and the

Prospectus shall not be "materially different," as such term is used in Rule

434, from the Prospectus included in the Registration Statement at the time it

became effective. No representation and warranty is made in this subsection

(b), however, with respect to any information contained in or omitted from the

Registration Statement or the Prospectus or any amendment thereof or

supplement thereto in reliance upon and in conformity with information

furnished in writing to the Company by or on behalf of any Underwriter through

the Representative specifically for use therein.

 

                  (c) The Company has been duly organized and is validly

existing as a corporation in good standing under the laws of the state of

Nevada, with corporate power and authority to own or lease and operate its

properties and conduct its business as described in the Registration Statement

and the Prospectus and to enter into and to perform its obligations under this

Agreement. Each of the subsidiaries of the Company is listed on Exhibit A

hereto (each a "Subsidiary," and collectively, the "Subsidiaries") and has

been duly organized and is validly existing as a corporation or limited

liability company in good standing under the laws of the jurisdiction of its

organization, with corporate or limited liability company power and authority

to own or lease and operate its properties and conduct its business as

described in the Registration Statement and the Prospectus. The Company does

not own or control, directly or indirectly, any corporation, association or

other entity other than the Subsidiaries listed on Exhibit A hereto. The

Company and each of the Subsidiaries are duly qualified to transact business

in all jurisdictions in which the conduct of their business requires such

qualification, except for such jurisdictions where the failure to so qualify

would not, individually or in the aggregate, reasonably be expected to result

in any material adverse change in the business, properties, assets,

operations, condition (financial or otherwise) or prospects of the Company and

its Subsidiaries taken as a whole, whether or not occurring in the ordinary

course of business (any such change, a "Material Adverse Change"). The

outstanding membership interests and shares of capital stock of each of the

Subsidiaries have been duly authorized and validly issued, the shares of

capital stock of such Subsidiaries are fully paid and non-assessable and,

except as accurately described in all material respects in the Registration

Statement or Prospectus or as set forth on Exhibit A, all such interests and

shares are owned by the Company or another Subsidiary free and clear of all

liens, encumbrances and equities and claims; and except as accurately

described in all material respects in the Registration Statement or Prospectus

or as set forth on Exhibit A, there are no authorized or outstanding options,

warrants, preemptive rights, rights of first refusal or other similar rights

to subscribe for or purchase, or equity or debt securities convertible into or

exchangeable or exercisable for, any capital stock of the Company or any of

its Subsidiaries.

 

                  (d) As of the date hereof, the authorized capital stock of

the Company consists only of 400,000,000 shares of Common Stock, par value

$0.01 per share, and 40,000,000 shares of Preferred Stock, par value $0.01 per

share. As of the date hereof, there are 82,168,484 shares of Common Stock and

no shares of Preferred Stock outstanding. The outstanding shares of Common

Stock of the Company have been duly authorized and validly issued, are fully

paid and non-assessable, and have been issued in compliance with federal and

state securities laws. None of the outstanding shares of Common Stock of the

Company were issued in violation of any preemptive rights, rights of first

refusal or other similar rights to subscribe for or purchase securities of the

Company. The Shares to be issued by the Company pursuant to this Agreement

have been duly authorized by all necessary corporate action, and such Shares,

when issued, will be validly issued, fully paid and non-assessable; and,

except as set forth in the Registration Statement or the Prospectus, no

preemptive rights, rights of first refusal or other similar rights of

stockholders or others exist with respect to any of the Shares or the issue

and sale thereof by the Company. Neither the filing of the Registration

Statement nor the Offering or sale of the Shares contemplated by this

Agreement gives rise to any rights, other than those which have been waived or

satisfied, for or relating to the registration of any shares of Common Stock.

The Common Stock conforms in all material respects to the description thereof

contained in the Registration Statement. The form of certificate for the

shares of Common Stock conforms to the form required by the corporate law of

the state of Nevada.

 

                  (e) The table relating to the capitalization of the Company

under the heading "Capitalization" set forth in the Prospectus, including the

footnotes thereto, (i) with respect to the actual capitalization of the

Company as of March 31, 2004, presents fairly the information contained

therein and (ii) with respect to the expected capitalization of the Company as

of March 31, 2004 on an as adjusted basis giving effect to the sale of the

Shares and the other transactions contemplated by this Agreement, the

Registration Statement and the Prospectus, was prepared in good faith by the

Company, and represents the best estimates and assumptions of the Company with

respect to the information contained therein. All of the Shares conform to the

description thereof contained in the Registration Statement.

 

                  (f) As of their respective dates and at all subsequent times

up to and including the Closing Date (as defined in Section 2.2(b) (and, if

any Option Shares are purchased, the Option Closing Date (as defined in

Section 2.2(c), the Registration Statement and the Prospectus, as amended or

supplemented by any amendments and supplements thereto, do not contain, and

will not contain, any untrue statement of material fact and do not omit, and

will not omit, to state any material fact required to be stated therein or

necessary to make the statements therein, (i) in the case of the Registration

Statement, not misleading and (ii) in the case of the Prospectus, in the light

of the circumstances under which they were made, not misleading; provided,

however, that the Company makes no representations or warranties as to

information contained in or omitted from the Prospectus, or any such amendment

or supplement, in reliance upon, and in conformity with, written information

furnished to the Company by or on behalf of any Underwriter through the

Representative specifically for use in the preparation thereof.

 

                  (g) The consolidated financial statements of the Company and

its Subsidiaries, together with related notes and schedules as set forth or

incorporated by reference in the Registration Statement and the Prospectus

(collectively, the "financial statements"), present fairly the consolidated

financial position and the results of operations and cash flows of the Company

and its Subsidiaries, at the indicated dates and for the indicated periods.

Such financial statements have been prepared in accordance with generally

accepted principles of accounting as applied in the United States,

consistently applied throughout the periods involved, except as disclosed

therein, and all adjustments necessary for a fair presentation of results for

such periods have been made. The financial and statistical data included or

incorporated by reference in the Registration Statement and the Prospectus,

including such data set forth under the captions "Capitalization" and

"Selected Consolidated Historical Financial Data," presents fairly the

information shown therein and such data has been compiled on a basis

consistent with the financial statements presented therein and the books and

records of the Company and its Subsidiaries. The as adjusted financial

information included or incorporated by reference in the Registration

Statement and the Prospectus presents fairly in all material respects the

information shown therein, has been properly compiled on the bases described

therein, and, in the opinion of the Company, the assumptions used in the

preparation thereof are reasonable and the adjustments used therein are

appropriate to give effect to the transactions or circumstances referred to

therein.

 

                  (h) Deloitte & Touche LLP, which has audited and certified

the financial statements filed with the Commission as part of, or incorporated

by reference in, the Registration Statement, is an independent public

accountant as required by the Securities Act and the Rules and Regulations of

the Commission.

 

                  (i) There are no pro forma or as adjusted financial

statements which are required to be included in the Registration Statement and

Prospectus in accordance with Regulation S-X which have not been included as

so required. The pro forma and as adjusted financial information included in

the Registration Statement and the Prospectus has been properly compiled and

prepared in accordance with the applicable requirements of the Securities Act,

the Exchange Act and the Rules and Regulations and includes all adjustments

necessary to present fairly in accordance with generally accepted accounting

principles the pro forma and as adjusted financial position of the respective

entity or entities presented therein at the respective dates indicated and

their cash flows and the results of operations for the respective periods

specified.

 

                  (j) The assumptions used in preparing the pro forma and as

adjusted financial information included in the Registration Statement and the

Prospectus provide a reasonable and good faith basis for presenting the

significant effects directly attributable to the transactions or events

described therein; the related adjustments made in the preparation of such pro

forma and as adjusted financial information give appropriate effect to those

assumptions; and such pro forma and as adjusted financial information reflect

the proper application of those adjustments to the corresponding historical

financial statement amounts.

 

                  (k) There is no action, suit, claim or proceeding pending

or, to the knowledge of the Company, threatened (i) against the Company or any

of the Subsidiaries or (ii) that has as the subject thereof any officer or

director of, or property owned or leased by or to, the Company or any of its

Subsidiaries, in each case, before any court or administrative agency or

otherwise where, in any such case, (A) there is a reasonable possibility of

such action, suit or proceeding being determined adversely to the Company or

its Subsidiaries and (B) any such action, suit, claim or proceeding, if so

determined adversely, would reasonably be expected to result in a Material

Adverse Change, or prevent, adversely affect, hinder or delay the consummation

of the transactions contemplated by this Agreement or the performance by the

Company or any of its Subsidiaries of their obligations hereunder except as

otherwise disclosed in the Registration Statement or the Prospectus. Except as

otherwise disclosed in the Registration Statement or the Prospectus, neither

the Company nor any of its Subsidiaries is involved in any labor dispute with

the employees of the Company or any of its Subsidiaries or predecessors, or

with the employees of any principal supplier, contractor or sub-contractor of

the Company or any of its Subsidiaries that would reasonably be expected to

result in a Material Adverse Change, and, to the best of the Company's

knowledge, no such dispute is threatened or imminent.

 

                  (l) Except as disclosed in the Registration Statement or the

Prospectus, the Company and its Subsidiaries have good and marketable title in

fee simple to all real property and good title to all personal property owned

by them or reflected as owned by them in the Registration Statement and the

Prospectus, subject to no lien, mortgage, pledge, charge or encumbrance of any

kind except those reflected in the consolidated financial statements described

in Section 1(g) above or that do not, individually or in the aggregate,

materially and adversely affect the value of such property and do not,

individually or in the aggregate, materially interfere with the use made or

proposed to be made of such property by the Company and its Subsidiaries.

Except as disclosed in the Registration Statement or the Prospectus, the real

property, improvements, equipment and personal property held under lease by

the Company or any Subsidiary are held under valid and enforceable leases,

with such exceptions as are not material and do not materially interfere with

the use made or proposed to be made of such leased real property,

improvements, equipment or personal property by the Company or such

Subsidiary.

 

                  (m) The Company and its Subsidiaries have timely filed all

federal, state, local and foreign tax returns that have been required to be

filed, all of which tax returns are true, correct and complete in all material

respects, and have timely paid all taxes due and payable, except (i) as may be

being contested in good faith and by appropriate proceedings and for which the

Company and its Subsidiaries have established reserves that are adequate for

the payment thereof and are in conformity with generally accepted accounting

principles as applied in the United States or (ii) to the extent that the

failure to timely file any such tax returns or to timely pay such taxes has

not resulted in, and would not reasonably be expected to result in, a Material

Adverse Change. All material taxes of the Company and its Subsidiaries not yet

due and payable have been provided for in the consolidated financial

statements described in Section 1(g) above to the extent required by and in

conformity with generally accepted accounting principles as applied in the

United States, and the Company has not received written notice of any actual

or proposed additional material tax assessment against the Company or any of

its Subsidiaries.

 

                  (n) Except as disclosed in each of the Registration

Statement and the Prospectus, since the respective dates as of which

information is given in each of the Registration Statement and the Prospectus,

as each may be amended or supplemented, (i) there has not been any Material

Adverse Change or any development that would reasonably be expected to result

in a Material Adverse Change, (ii) the Company and its Subsidiaries, taken as

a whole, have not incurred any material liability or obligation, indirect,

direct or contingent, not in the ordinary course of business, nor entered into

any material transaction or agreement not in the ordinary course of business

and (iii) there has been no dividend or distribution of any kind declared,

paid or made by the Company or, except for dividends paid to the Company or

other Subsidiaries, any of its Subsidiaries on any class of capital stock or

repurchase or redemption or call by the Company or any of its Subsidiaries of

capital stock.

 

                  (o) The Company has full right, power and authority to

execute and deliver this Agreement, to perform its obligations hereunder and

to consummate the transactions contemplated by this Agreement, the

Registration Statement and the Prospectus. This Agreement and the transactions

contemplated by this Agreement, the Registration Statement and the Prospectus

have been duly and validly authorized by all necessary corporate action on the

part of the Company. This Agreement has been duly executed and delivered by

the Company, and constitutes the legal, valid, and binding obligation of the

Company, enforceable in accordance with its terms, except as enforceability

may be limited by applicable bankruptcy, insolvency, reorganization,

moratorium, fraudulent conveyance or similar laws affecting creditors' rights

generally, except as enforceability may be subject to general principles of

equity (regardless of whether such enforceability is considered in a

proceeding in equity or at law) and except as may be limited by state or

federal laws or policies relating to the non-enforceability of the

indemnification provisions contained herein.

 

                  (p) Neither the Company nor any of its Subsidiaries is or

with the giving of notice or passage of time, or both, will be, in violation

of or in default under (i) its charter, by-laws, operating agreement or other

organizational document or (ii) the terms of any other security issued by it

or any obligation, agreement, covenant or condition contained in any

stockholders' agreement, contract, indenture, mortgage, deed of trust, loan or

credit agreement, note, lease or other agreement or instrument to which the

Company or any of its Subsidiaries is a party or by which any of them may be

bound, or to which any of the property or assets of the Company or any of its

Subsidiaries is subject (collectively, the "Agreements and Instruments")

except, solely with respect to this clause (ii), for such violations or

defaults that would not reasonably be expected to result in a Material Adverse

Change. The (x) execution, delivery and performance of this Agreement, and any

other material agreement or instrument entered into or issued or to be entered

into or issued by the Company or any of its Subsidiaries in connection with

the transactions contemplated hereby or thereby, (y) compliance by the Company

and its Subsidiaries with their obligations hereunder or thereunder and (z)

consummation of the transactions contemplated by this Agreement or the

Prospectus (including the issuance and sale of the Shares and the use of the

proceeds therefrom in the manner set forth under the caption "Use of Proceeds"

in the Prospectus), do not and will not, (i) (A) require the consent from any

other party that has not already been obtained, (B) result in a breach of or

conflict with any of the terms and provisions of any Agreements and

Instruments, (C) constitute a default (or an event which with notice or the

passage of time, or both, would constitute a default) under any Agreements and

Instruments, (D) except with respect to transactions contemplated by the

Registration Statement and the Prospectus, result in the creation or

imposition of any lien, charge or encumbrance upon any property or assets of

the Company or any of its Subsidiaries or (E) trigger a Repayment Event (as

defined below) pursuant to any Agreements or Instruments, except for such

failure to obtain necessary consents, breaches, conflicts, defaults or

Repayment Events or liens, charges or encumbrances that, singly or in the

aggregate, would not reasonably be expected to result in a Material Adverse

Change; (ii) violate any provision of the charter, by-laws, operating

agreement or other organizational document of the Company or any of its

Subsidiaries as applicable; or (iii) violate any applicable law, statute,

rule, regulation, judgment, order, writ, decree, ordinance or directive, of

any government, judicial, regulatory or other legal or governmental

instrumentality, agency, body or court, domestic or foreign, having

jurisdiction over it or any of its assets or properties, except as would not

reasonably be expected to have a Material Adverse Change. As used herein, a

"Repayment Event" means any event or condition that gives the holder of any

note, debenture or other evidence of indebtedness (or any person acting on

such holder's behalf) the right to require the repurchase, redemption or

repayment of all or a portion of such indebtedness by the Company or any of

its Subsidiaries.

 

                  (q) No approval, consent, order, authorization, designation,

declaration or filing by or with any government, judicial, regulatory,

administrative or other legal or governmental body, foreign or domestic

(including, without limitation, the Nevada Gaming Commission, the Nevada State

Gaming Control Board, the Clark County Liquor and Gaming Licensing Board, the

Public Utilities Commission of Nevada, the Nevada State Engineer's Office and

the Macau Special Administrative Region of the People's Republic of China)

(together, the "Consents") is necessary in connection with the execution,

delivery and performance by the Company of this Agreement, and the

consummation of the transactions contemplated by this Agreement or the

Prospectus, except (a) such as have been already obtained, (b) the

registration under the Securities Act or the Rules and Regulations of the

Shares, which has become effective, (c) approvals by or from the gaming and

other regulatory authorities (including, without limitation, the Nevada Gaming

Commission, the Nevada State Gaming Control Board, the Clark County Liquor and

Gaming Licensing Board, the Public Utilities Commission of Nevada, the Nevada

State Engineer's Office and the Macau Special Administrative Region of the

People's Republic of China), which have been obtained, (d) such Consents as

may be required under the State securities of Blue Sky Laws, the Nasdaq

National Market or the by-laws and rules of the National Association of

Securities Dealers, Inc. (the "NASD") in connection with the purchase and

distribution of the Shares by the Underwriters, each of which, except as

disclosed in the Prospectus, has been obtained and is in full force and

effect, and (e) as disclosed in the Registration Statement and the Prospectus.

 

                  (r) Except as disclosed in the Registration Statement or the

Prospectus or as would not, individually or in the aggregate, reasonably be

expected to result in a Material Adverse Change, (i) the Company and each of

its Subsidiaries has obtained and holds all franchises, licenses, leases,

permits, approvals, notifications, certifications, registrations,

authorizations, exemptions, variances, qualifications, easements, rights of

way, liens and other rights, privileges and approvals (including with respect

to environmental laws) required under any federal, state, local or foreign law

or governmental authority ("Permits") for the ownership or current use of all

real property owned or leased by the Company or such Subsidiary and for any

other property otherwise currently operated by or on behalf of, or for the

benefit of, such entity and for the operation of each of its businesses as

presently conducted, (ii) all such Permits are in full force and effect, and

the Company and each of its Subsidiaries has performed and observed all

requirements of such Permits, (iii) no event has occurred that allows or

results in, or after notice or lapse of time would allow or result in,

revocation or termination by the issuer thereof or in any other impairment of

the rights of the holder of any such Permit, (iv) no such Permits contain any

restrictions, either individually or in the aggregate, that are materially

burdensome to the Company or any of its Subsidiaries, or to the current

operation of any of its businesses or any property currently owned, leased or

otherwise operated by such entity, (v) the Company and each of its

Subsidiaries reasonably believes that each of its Permits will be timely

renewed and complied with, without material expense, and that any additional

Permits that may be required of such entity in order to conduct its business

as proposed to be conducted will be timely obtained and complied with, without

material expense, and (vi) the Company does not have any knowledge or any

reason to believe that any governmental authority is considering limiting,

suspending, revoking or renewing any such Permits on terms materially more

burdensome than the terms of such Permit as in effect as the date hereof.

 

                  (s) Except as otherwise disclosed in the Registration

Statement or the Prospectus or as would not reasonably be expected to result

in a Material Adverse Change, (i) neither the Company nor any of its

Subsidiaries is or has in the past been in violation of any applicable

federal, state, local or foreign statute, law, rule, regulation, ordinance,

code or rule of common law or any judicial or administrative interpretation

thereof, including any judicial or administrative order, consent, decree or

judgment, relating to pollution or protection of human health, the environment

(including, without limitation, ambient air, surface water, groundwater, land

surface or subsurface strata) or wildlife, including, without limitation, laws

and regulations relating to the release or threatened release of chemicals,

pollutants, contaminants, wastes, toxic substances, hazardous substances,

petroleum or petroleum products (collectively, "Hazardous Materials") or to

the manufacture, processing, distribution, use, treatment, storage, disposal,

transport or handling of Hazardous Materials (collectively, "Environmental

Laws"); (ii) neither the Company nor any of its Subsidiaries nor, to the

knowledge of the Company, any third party, has used, released, discharged,

generated, manufactured, produced, stored, or disposed of in, on, under, or

about the real property owned or leased by the Company or any of its

Subsidiaries or any improvements thereon (the "Sites") or transported thereto

or therefrom, any Hazardous Materials that would reasonably be expected to

subject the Company or any of its Subsidiaries to any liability under any

Environmental Law; (iii) there are no underground tanks and no Hazardous

Materials used, stored or present at or on the Sites that would reasonably be

expected to result in liability for the Company or any of its Subsidiaries

under applicable Environmental Laws; (iv) to the knowledge of the Company

after due inquiry, there is or has been no condition, circumstance, action,

activity or event that could reasonably form the basis of any violation of, or

any liability to the Company or any of its Subsidiaries under, any

Environmental Law; (v) there is no pending or, to the knowledge of the

Company, threatened, action, proceeding, investigation or inquiry by any

regulatory or governmental body or any non-governmental third party with

respect to the presence or release of Hazardous Materials, on, from or to the

Sites; (vi) the Company does not have any knowledge of any past or existing

violations of any applicable Environmental Laws by any person relating in any

way to the Sites; and (vii) neither the Company nor any of its Subsidiaries

has received any complaint, adverse order, directive, citation or adverse

notice from any governmental body with respect to any Environmental Law.

 

                  (t) Except as otherwise disclosed in the Registration

Statement or the Prospectus, (i) the Company and its Subsidiaries each own or

possess the valid right to use all trademarks, trade names, service marks,

domain names and copyrights (together with the applications for registrations

and registrations therefor), non-patent license rights, know-how (including

trade secrets and other unpatented and unpatentable proprietary or

confidential information, materials, systems or procedures), technologies,

inventions and other non-patent intellectual property or non-patent

proprietary rights (collectively, "Intellectual Property"), which are material

to any of their businesses and are presently used in their businesses, and

neither the Company nor any of its Subsidiaries has any reason to believe that

it or they will not own or possess or be able to obtain when needed the valid

right to use all Intellectual Property necessary to carry on their businesses

as presently proposed to be conducted; (ii) neither the Intellectual Property

owned or used by, nor the conduct or operation of the businesses (as presently

and proposed to be conducted or operated) of, the Company or any of its

Subsidiaries has infringed upon, misappropriated or violated, or, if the

businesses are conducted or operated as presently intended, will, to the

knowledge of the Company or any of its Subsidiaries, infringe upon,

misappropriate or violate, any Intellectual Property of any other person or

entity; (iii) to the knowledge of the Company, none of the Intellectual

Property or the patents or patent rights (collectively, the "Patents"),

employed by the Company or any of its Subsidiaries has been obtained or is

being used by the Company or any such Subsidiary in violation of any

contractual obligation binding on the Company, such Subsidiary or any of their

respective officers, directors or employees or otherwise in violation of the

rights of any persons, except as would not reasonably be expected to result in

a Material Adverse Change; (iv) neither the Company nor any of its

Subsidiaries has received any written communications or been served with any

document relating to any action or proceeding, nor, to the knowledge of the

Company or any of its Subsidiaries, is any action or proceeding pending,

alleging that the Company or any such Subsidiary has violated, infringed upon

or misappropriated, or, by conducting its business as set forth in the

Registration Statement and the Prospectus, would violate, infringe upon or

misappropriate, any of the Intellectual Property or Patents of any other

person or entity; (v) the Company does not know of any material infringement

by others of Intellectual Property or Patents owned by or licensed to the

Company or any of its Subsidiaries; (vi) neither the Company nor any of its

Subsidiaries has any reason to believe that it does not own or have a valid

right to use, or will not own or possess or be unable to acquire or obtain the

valid right to use, any Patents necessary to carry on their businesses as

presently conducted or as proposed to be conducted; and (vii) neither the

Company nor its Subsidiaries has any reason to believe that the Patents owned

or used by the Company or any of its Subsidiaries, or the conduct or operation

of their businesses has infringed, or that the Patents or the conduct or

operation of businesses as presently or proposed to be conducted will

infringe, any Patent of any other person or entity. The Company and its

Subsidiaries have taken all reasonable steps necessary to secure their

interests in, and protect the secrecy, confidentiality and value of, their

Intellectual Property and Patents, including without limitation entering into

written confidentiality agreements with their employees and contractors.

 

                  (u) Neither the Company, nor to the Company's knowledge, any

of its affiliates (within the meaning of Rule 144 under the Securities Act)

(each, an "Affiliate"), has taken, nor will the Company, or to the Company's

knowledge, any of such Affiliates take, directly or indirectly, any action

designed to cause or result in, or which has constituted or which might

reasonably be expected to constitute, the stabilization or manipulation of the

price of the shares of Common Stock to facilitate the sale or resale of the

Shares. The Company acknowledges that the Underwriters may engage in passive

market making transactions in the Shares on the Nasdaq National Market in

accordance with Regulation M under the Exchange Act.

 

                  (v) Neither the Company nor any of its Subsidiaries is, and

upon the issuance and sale of the Shares as herein contemplated and the

application of the net proceeds therefrom as described in the Prospectus, none

of them will be, required to register as an "investment company" as such term

is defined in the Investment Company Act of 1940, as amended (the "1940 Act")

and the Rules and Regulations of the Commission.

 

                  (w) Neither the Company nor any of its Subsidiaries is a

"holding company" or a "subsidiary company" of a "holding company," as such

terms are defined in the Public Utilities Holding Company Act of 1935, as

amended, or is a "public utility," as such term is defined in the Federal

Power Act, as amended.

 

                  (x) To the Company's knowledge, there are no affiliations or

associations between any member of the NASD and any of the Company's officers,

directors or 5% or greater securityholders, other than (i) as set forth in the

Registration Statement and the Prospectus, (ii) Baron Capital Group's Inc.

affiliation with Baron Capital (a member of the NASD and a broker dealer for

several of its affiliated investment advisory firms) and (iii) Bank of America

Corporation's affiliation with Banc of America Securities LLC (a member of the

NASD).

 

                  (y) The Company and each of its Subsidiaries maintains a

system of internal accounting controls sufficient to provide reasonable

assurances that (i) transactions are executed in accordance with management's

general or specific authorization, (ii) transactions are recorded as necessary

to permit preparation of financial statements in conformity with generally

accepted accounting principles as applied in the United States and to maintain

accountability for assets, (iii) access to assets is permitted only in

accordance with management's general or specific authorization and (iv) the

recorded accountability for assets is compared with existing assets at

reasonable intervals and appropriate action is taken with respect to any

differences.

 

                  (z) The Company and each of its Subsidiaries carry, or are

covered by, insurance with insurers of recognized financial responsibility in

such amounts, with such deductibles and covering such risks as is commercially

reasonable and as the Company and its Subsidiaries deem adequate and prudent

for the conduct of their respective businesses and the value of their

respective properties and as is customary for companies engaged in similar

businesses including, but not limited to, policies covering real and personal

property owned or leased by the Company and its Subsidiaries against theft,

damage, destruction, acts of vandalism and earthquakes. Such insurance

coverage (including deductibles, retentions and self-insurance amounts)

complies with the insurance coverage required at the Closing Date (or if any

Option Shares are being purchased, at the Option Closing Date) under the

Master Disbursement Agreement, dated as of October 30, 2002, by and among Wynn

Las Vegas, LLC, Wynn Las Vegas Capital Corp., Wynn Design & Development, LLC,

Deutsche Bank Trust Company Americas, Wells