Exhibit 10.1
WAIVER AND CONSENT
This WAIVER AND CONSENT (this "Waiver and
Consent"), dated as of the 31st day of July, 2009, is entered into
by and among Stephen A. Wynn ("Wynn"), an individual, Baron
Investment Funds Trust (formerly known as Baron Asset Fund)
("Baron"), a Massachusetts business trust, and Aruze USA, Inc., a
Nevada corporation ("Aruze").
Reference is made to that certain Stockholders
Agreement, entered into as of April 11, 2002, among Wynn, Aruze and
Baron, as amended by that certain Amendment to Stockholders
Agreement, entered into as of November 8, 2006, between Wynn and
Aruze (as amended, the "Stockholders
Agreement"). Capitalized terms not otherwise defined
herein shall have respective meanings ascribed to such terms in the
Stockholders Agreement.
RECITALS
WHEREAS, certain grantor retained annuity
trusts (collectively, the "GRATs") previously created by Wynn, in
their capacity as Permitted Transferees of Wynn, hold, in the
aggregate, 395,805 Shares subject to the Stockholders Agreement
(the "GRAT Shares");
WHEREAS, the GRATs desire to Transfer the GRAT
Shares pursuant to an exemption from the registration requirements
under the Securities Act of 1933, as amended (the "Securities
Act");
WHEREAS, the Stockholders Agreement contains
certain restrictions on and conditions to the Transfer of the GRAT
Shares, including, but not limited to, certain consent rights,
rights of first refusal and tag-along rights;
WHEREAS, in addition to the rights described
in the prior recital, the Stockholders Agreement provides certain
rights in favor of Baron, including, but not limited to, certain
rights of first refusal, tag-along rights, rights with respect to
Upstream Transfers, rights triggered by the institution of a
Bankruptcy, preemptive rights and rights as the beneficiary of a
non-competition agreement (all of Baron's rights under the
Stockholders Agreement, collectively, the "Baron Rights");
WHEREAS, Aruze and Baron each desire to
consent to the Transfer of the GRAT Shares for all purposes under
the Stockholders Agreement and t
