Exhibit 10.2
ACKNOWLEDGEMENT AND AGREEMENT
WHEREAS, WYNN LAS VEGAS, LLC, a Nevada limited liability company (the
"Borrower"), WELLS FARGO BANK, NATIONAL ASSOCIATION (as successor by merger to
Wells Fargo Bank Nevada, National Association), a national banking
association, not in its individual capacity (except as specifically set forth
herein), but solely as collateral agent (the "Collateral Agent"), and each of
the Persons listed on the signature pages thereto as a lender (each, a
"Lender") have heretofore entered into that certain Loan Agreement dated as of
October 30, 2002, as amended by the Amendment to Loan Agreement dated December
3, 2002, the Second Amendment to Loan Agreement dated December 30, 2002, the
Third Amendment to Loan Agreement dated as of May 3, 2004 and the Fourth
Amendment to Loan Agreement dated as of July 21, 2004 (as amended,
supplemented or otherwise modified from time to time, the "Loan Agreement").
Capitalized terms used, but not otherwise defined in this Acknowledgement and
Agreement, shall have those meanings assigned to such terms in Appendix 1 to
the Loan Agreement, as amended.
WHEREAS, pursuant to Section 7.5(p) of the Loan Agreement, the
Borrower may sell the existing Aircraft and substitute a replacement aircraft
therefor pursuant to the requirements of the Loan Documents.
WHEREAS, the Borrower sold the existing Aircraft and substituted a
1999 Boeing 737-79U Business Jet aircraft bearing manufacturer's serial number
29441 and Federal Aviation Administration Registration Number N88WZ, including
two CFM International, Inc. model CFM 56-7B engines bearing manufacturer's
serial numbers 874-373 and 874-366 (the "Replacement Aircraft") therefor.
WHEREAS, the Borrower desires to increase Allocated Commitment
attributable to Aircraft to facilitate the Borrower's purchase of the
Replacement Aircraft as set forth in the Fourth Amendment, but the majority of
the undersigned Lenders have not approved any increase to the Allocated
Commitment attributable to the Aircraft or any increase in the Aggregate
Commitment Amount.
WHEREAS, pursuant to Section 7.5(p)(iii)(B)(2)(y) of the Loan
Agreement, among other things, the Required Lenders must approve in writing
any Replacement Aircraft Indebtedness which results in the Aggregate
Commitment Amount being increased.
WHEREAS, the term "Required Lenders" is defined in Loan Agreement as
Lenders holding more than 50% of the aggregate amount of Credit Exposure of
all Lenders outstanding at such time, provided, among other things, that (A)
for purposes of Section 7.5(p) of the Loan Agreement, and (B) for purposes of
(i) Sections 4.8, 5 and 9.2 of the Aircraft Security Agreement and for the
Aircraft Operating Agreement, and (ii) any amendment, modification or waiver
to the Loan Agreement or any Loan Document with respect to the Aircraft, any
determination of "Required Lenders" shall only include that portion of the
Lenders' Commitment or Credit Exposure as the case may be, which relates to
the Aircraft. Therefore, Lenders holding more than 50% of the aggregate amount
of Credit Exposure which relates to the Aircraft are referred to herein as
"Required Aircraft Lenders."
WHEREAS, the undersigned Lenders hold 100% of the aggregate amount of
Credit Exposure which relates to the Aircraft (the "Aircraft Lenders").
WHEREAS, the Borrower acquired the Replacement Aircraft and included
the same as Aircraft Collateral pursuant to the Loan Documents and,
immediately subsequent thereto, sold the existing Aircraft free and clear of
the lien of the Aircraft Security Agreement.
NOW, THEREFORE, in consideration of good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties
hereto do hereby agree as follows:
1. The undersigned Aircraft Lenders hereby agree and acknowledge that
pursuant to Section 7.5(p)(iii)(B)(2)(y) of the Loan Agreement (a)
Replacement Aircraft Advances in an aggregate principal amount of up
to $10,000,000 are hereby approved, (b) such Replacement Aircraft
Advances in an aggregate principal amount of up to $10,000,000 shall
constitute Replacement Aircraft Indebtedness under the Loan Agreement
and Loan Documents.
2. The undersigned Aircraft Lenders hereby approve Sections 2.3, 2.4
and 2.5 (incorrectly numbered 2.4) of the Fourth Amendment; provided
that such approval shall not constitute the approval of the substance
of any documents defined in such sections except for amendments to
the "Aircraft Operating Agreement" and "Aircraft Trust Agreement"
(each as defined in the Fourth Amendment) to incorporate the
Replacement Aircraft, or as otherwise expressly provided herein.
3. The undersigned Aircraft Lenders hereby agree and acknowledge that
the appraisal for the particular Replacement Aircraft described in
this Acknowledgement and Agreement delivered to each of the Aircraft
Lenders is satisfactory in form and substance and the undersigned
Aircraft Lenders hereby waive the requirement in Section 4.7(c)(i)(B)
of the Aircraft Security Agreement that this particular Replacement
Aircraft must have a Fair Market Value of not less than the Allocated
Aircraft Value, as such term has been amended in the Fourth Amendment
to the Loan Agreement. Notwithstanding the foregoing, the requirement
in Section 4.7(c)(i)(B) of the Aircraft Security Agreement that a
Replacement Aircraft must have a Fair Market Value of not less than
the Allocated Aircraft Value, as such term has been amended in the
Fourth Amendment to the Loan Agreement, remains in full force and
effect with respect to any future replacement aircraft.
4. The parties agree that none of the terms and conditions of the
Loan Agreement, the Aircraft Security Agreement or any other Loan
Document which require the approval of the Required Aircraft Lenders
have been modified by any document or instrument except as
specifically agreed to in writing by the Required Aircraft Lenders
and such terms and conditions remain in full force and effect.
[Intentionally Blank]
IN WITNESS WHEREOF, the undersigned have executed this
Acknowledgement and Agreement as of September 1, 2004.
AIRCRAFT LENDERS:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Lender
By /s/ Ann Naegele
---------------------------------
Name: Ann Naegele
Title: Vice President
THE CIT GROUP/EQUIPMENT FINANCING, INC.,
as Lender
By /s/ Carl E. Myrick
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Name: Carl E. Myrick
Title: Senior Vice President
BANK OF AMERICA, N.A., NEVADA BRANCH,
as Lender
By /s/ Peter J. Vitale
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Name: Peter J. Vitale
Title: Senior Vice President
BORROWER:
WYNN LAS VEGAS, LLC,
a Nevada limited liability company,
as the Borrower
By: Wynn Resorts Holdings, LLC,
a Nevada limited liability company,
its sole member
By: Valvino Lamore, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited,
a Nevada corporation,
its sole member
By: /s/ Marc H. Rubinstein
-----------------------------
Name: Marc H. Rubinstein
Title: Senior Vice President,
General Counsel &
Secretary
Acknowledged as of September 1, 2004.
WELLS FARGO BANK , NATIONAL ASSOCIATION
(as successor by merger to Wells Fargo
Bank Nevada, National Association),
as Collateral Agent
By /s/ DeAnn Madsen
-------------------------------------
Name: DeAnn Madsen
Title: Trust Officer