UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM 8-K
CURRENT REPORT
---------------------
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): DECEMBER 14, 2004
WYNN RESORTS, LIMITED
(Exact Name of Registrant as Specified in its Charter)
NEVADA 000-50028 46-0484987
(State or Other Jurisdiction of (Commission File Number) (I.E. Employer
Incorporation) Identification No.)
3131 LAS VEGAS BOULEVARD SOUTH
LAS VEGAS, NEVADA 89109
(Address of Principal Executive Offices) (Zip Code)
(702) 770-7555
(Registrant's telephone number, including area code)
Check the appropriate box below if the Form 8-K is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
|_| Written communication pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencements communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
On December 14, 2004, Wynn Resorts, Limited (the "REGISTRANT"), completed a
refinancing of the existing indebtedness of its indirect subsidiary, Wynn Las
Vegas, LLC ("WLV"). The Registrant's press release, dated December 14, 2004,
relating to the refinancing is filed herewith as Exhibit 99.1 and incorporated
herein by reference. The refinancing included the transactions described below:
First Mortgage Notes
On December 14, 2004, WLV and its subsidiary, Wynn Las Vegas Capital Corp.
(together with WLV, the "ISSUERS"), issued $1.3 billion aggregate principal
amount of 6-5/8% First Mortgage Notes due 2014 (the "FIRST MORTGAGE NOTES"),
pursuant to an indenture (the "INDENTURE") with U.S. Bank National Association,
as Trustee (the "NOTES TRUSTEE").
The First Mortgage Notes will mature on December 1, 2014 and bear interest at
the rate of 6-5/8% per annum. The Issuers may redeem up to 35% of the aggregate
principal amount of the notes at any time prior to December 1, 2007 at a
redemption price of 106.625% with the proceeds of one or more qualified equity
offerings of the Registrant that are contributed to WLV. Commencing December 1,
2009, the First Mortgage Notes are redeemable at the Issuers' option in whole
or in part at a premium starting at 103.313% and declining ratably to par. The
First Mortgage Notes will not be redeemable at the option of the holder, except
upon the occurrence of a change of control, or in the case of certain sales of
assets or events of loss as set forth in the Indenture. Mandatory prepayments
from asset sales and insurance and condemnation proceeds will be applied to
repay the term loan facility under the new credit facilities described below,
the First Mortgage Notes (to the extent accepted by the noteholders) and other
pari passu indebtedness of the Issuers, and in certain events, to repay the
revolving credit facility and reduce the revolving credit commitments under the
new credit facilities.
The Indenture contains covenants limiting the ability of the Issuers to incur
additional debt, make distributions, investments and restricted payments,
create liens, enter into transactions with affiliates, sell assets, enter into
sale-leaseback transactions, permit restrictions on dividends and other
payments by subsidiaries, or engage in mergers, consolidations, sales of
substantially all assets, sales of subsidiary stock and other specified types
of transactions. The Indenture also contains covenants requiring the Issuers to
offer to repurchase a portion of the First Mortgage Notes from asset sale and
insurance or condemnation proceeds, subject to a reinvestment period, in each
case with specified exceptions.
The First Mortgage Notes are obligations of the Issuers, guaranteed by each of
the subsidiaries of WLV, other than Wynn Completion Guarantor, LLC. Subject to
the intercreditor agreement described below, and certain exceptions, the First
Mortgage Notes, and the guarantees thereof, are secured by: (1) a first
priority security interest in a liquidity reserve account, which may be used to
pay costs for the completion of the construction and opening of the Wynn Las
Vegas hotel and casino resort and, after the completion of Wynn Las Vegas, to
meet WLV's debt service needs in connection with the operation of Wynn Las
Vegas; (2) all amounts on deposit from time to time in a completion guarantee
deposit account held by WLV's subsidiary, Wynn Completion Guarantor, LLC; (3) a
first priority pledge of all of the member's interests owned by WLV in its
subsidiaries (other than Wynn Completion Guarantor, LLC) and of Wynn Resorts
Holdings, LLC's 100% member's interest in WLV; (4) first mortgages on all real
property constituting Wynn Las Vegas, its golf course and its recently
announced proposed expansion, Encore at Wynn Las Vegas; and (5) a first
priority security interest in substantially all other existing and future
assets of WLV and the guarantors, excluding, among other things, an aircraft
beneficially owned by World Travel, LLC. The First Mortgage Notes are also
secured by certain of the net proceeds from the sale of the First Mortgage
Notes.
The obligations of the Issuers and the guarantors under the First Mortgage
Notes rank pari passu in right of payment with their existing and future senior
secured indebtedness, including indebtedness with respect to the credit
facilities described below, and rank senior in right of payment to all of their
existing and future subordinated indebtedness.
Events of default under the Indenture include, among others, the following:
default for 30 days in the payment of interest on the First Mortgage Notes;
default in the payment of principal on the First Mortgage Notes when due;
failure to comply with certain covenants in the Indenture, in some cases
without notice from the trustee or the holders of notes; in certain
circumstances, default under any other mortgage or debt instrument for money
borrowed by WLV or one of its restricted subsidiaries; default under the
Disbursement Agreement described below or the new credit facilities;
inaccuracies with respect to certain representations and warranties made in
connection with the Indenture or the collateral documents related thereto; the
failure to achieve certain goals with respect to the completion of Wynn Las
Vegas; the failure to pay certain judgments; and certain events of bankruptcy.
Under certain circumstances, the trustee may initiate a foreclosure against all
or a portion of the collateral if an event of default has occurred and is
continuing.
The Indenture is filed herewith as Exhibit 10.1 and incorporated herein by
reference.
New Credit Facilities
On December 14, 2004, WLV entered into a credit agreement (the "CREDIT
AGREEMENT") and related ancillary agreements with Deutsche Bank Securities
Inc., Deutsche Bank Trust Company Americas (referred to herein as Deutsche
Bank), Banc of America Securities LLC, Bank of America, N.A., Bear Stearns
Corporate Lending Inc., Bear, Stearns & Co. Inc., JPMorgan Chase Bank, N.A.,
J.P. Morgan Securities Inc., JPMorgan Chase Bank, N.A., Societe Generale and SG
Americas Securities, LLC, for secured revolving credit and term loan facilities
in the aggregate amount of $1.0 billion. The credit facilities consist of a
revolving credit facility in the amount of $600 million and a term loan
facility in the amount of $400 million.
The revolving credit facility will terminate and be payable in full on the
fifth anniversary of the closing date, and the term loan facility will mature
on the seventh anniversary of the closing date. WLV is required to draw half of
the term loans by February 14, 2005 and the remaining half of the term loans by
March 14, 2005.
The amount available under the new credit facilities will be reduced by $550.0
million if the budget, schedule and plans and specifications for Encore at Wynn
Las Vegas (the "ENCORE BUDGET, SCHEDULE, PLANS AND SPECIFICATIONS"), the
planned expansion of the Wynn Las Vegas resort and casino, have not been
approved by a majority of the arrangers or a majority of the lenders under the
Credit Agreement by June 30, 2005. This may result in a reduction of
availability under the revolving credit facility, prepayment of loans under the
term loan facility or any combination of the two.
For purposes of calculating interest, loans under the new credit facilities
will be designated, at the election of WLV, as Eurodollar Loans or, in certain
circumstances, Base Rate Loans. Eurodollar Loans are expected to bear interest
at the interbank eurocurrency rate, adjusted for reserves, plus a borrowing
margin as described below. Interest on Eurodollar Loans shall be payable at the
end of the applicable interest period in the case of interest periods of one,
two or three months, and every three months in the case of interest periods of
six months. Base Rate Loans are expected to bear interest at (a) the greater of
(i) the rate most recently announced by Deutsche Bank as its "prime rate," or
(ii) the Federal Funds Rate plus 1/2 of 1% per annum; plus (b) a borrowing
margin as described below. Interest on Base Rate Loans will be payable
quarterly in arrears.
After the opening of Wynn Las Vegas or, if Encore at Wynn Las Vegas qualifies
for financing under the Disbursement Agreement, after the opening of Encore at
Wynn Las Vegas, the applicable borrowing margins for revolving loans will be
based on WLV's leverage ratio, ranging from 1.25% to 2.5% per annum for
Eurodollar Loans and 0.25% to 1.5% per annum for Base Rate Loans. After the
opening of Wynn Las Vegas or, if Encore at Wynn Las Vegas qualifies for
financing under the Disbursement Agreement, after the opening of Encore at Wynn
Las Vegas, WLV will pay, quarterly in arrears, 0.75% per annum on the daily
average of unborrowed availability under the revolving credit facility. After
the opening of Wynn Las Vegas or, if Encore at Wynn Las Vegas qualifies for
financing under the Disbursement Agreement, after the opening of Encore at Wynn
Las Vegas, the annual fee WLV will be required to pay for unborrowed
availability under the revolving credit facility will be based on WLV's
leverage ratio, ranging from 0.25% to 0.50% per annum. For unborrowed amounts
under the term loan facility, WLV expects to pay, quarterly in arrears, 1.00%
per annum on the daily average of the unborrowed amounts under the term loan
facility. Letters of credit issued pursuant to the new credit facilities are
expected to accrue fees at the borrowing margins payable on Eurodollar Loans as
described above, plus a customary fronting fee. In addition, certain fees will
be payable on the closing date to certain lenders and other parties to the
Credit Agreement.
The new credit facilities are obligations of WLV, guaranteed by each of the
subsidiaries of WLV, other than Wynn Completion Guarantor, LLC. Subject to the
intercreditor agreement described below, and certain exceptions, the
obligations of WLV and each of the guarantors under the new credit facilities
are secured by: (1) a first priority security interest in a liquidity reserve
account, which may be used to pay costs for the completion of the construction
and opening of the Wynn Las Vegas hotel and casino resort and, after the
completion of Wynn Las Vegas, to meet WLV's debt service needs in connection
with the operation of Wynn Las Vegas; (2) all amounts on deposit from time to
time in a completion guarantee deposit account held by Wynn Completion
Guarantor, LLC; (3) all amounts on deposit from time to time in a secured
account holding the proceeds of the new credit facilities; (4) a first priority
pledge of all member's interests owned by WLV in its subsidiaries (other than
Wynn Completion Guarantor, LLC) and Wynn Resorts Holdings, LLC's 100% member's
interest in WLV; (5) first mortgages on all real property constituting Wynn Las
Vegas, its golf course and its recently announced proposed expansion, Encore at
Wynn Las Vegas; and (6) a first priority security interest in substantially all
other existing and future assets of WLV and the guarantors, excluding an
aircraft owned by World Travel, LLC; provided, that the aircraft may be pledged
to secure the new credit facilities under certain circumstances.
The obligations of WLV and the guarantors under the credit facilities rank pari
passu in right of payment with their existing and future senior indebtedness,
including indebtedness with respect to the First Mortgage Notes and ranks
senior in right of payment to all of their existing and future subordinated
indebtedness.
In addition to scheduled amortization payments, WLV will be required to make
mandatory prepayments of indebtedness under the new credit facilities from the
net proceeds of all debt offerings (other than those constituting certain
permitted debt) and, subject to a reinvestment period, asset sale and insurance
or condemnation proceeds, in each case with specified exceptions. After the
opening of Wynn Las Vegas or, if Encore at Wynn Las Vegas qualifies for
financing under the Disbursement Agreement, after the opening of Encore at Wynn
Las Vegas, WLV will also be required to make mandatory repayments of
indebtedness under the new credit facilities from specified percentages of
excess cash flow, which percentages may decrease and/or be eliminated based on
WLV's leverage ratio. Mandatory prepayments from asset sales and insurance and
condemnation proceeds will be applied to repay the term loan facility, the
First Mortgage Notes (to the extent accepted by the noteholders), and in
certain events, to repay the revolving credit facility and reduce the revolving
credit commitments. Other than with respect to a 1% premium that WLV will be
required to pay with respect to certain repayments of WLV's term loans
occurring prior to December 14, 2005, WLV will have the option to prepay all or
any portion of the indebtedness under the new credit facilities at any time
without premium or penalty.
The Credit Agreement contains customary negative covenants and financial
covenants, including negative covenants that will restrict WLV's ability to:
incur additional indebtedness, including guarantees; create, incur, assume or
permit to exist liens on property and assets; declare or pay dividends and make
distributions or restrict the ability of WLV's subsidiaries to pay dividends
and make distributions; engage in mergers, investments and acquisitions; enter
into transactions with affiliates; enter into sale-leaseback transactions;
execute modifications to material contracts; engage in sales of assets; make
capital expenditures; and make optional prepayments of certain indebtedness.
The financial covenants include (i) maintaining a ratio of earnings before
interest, taxes, depreciation and amortization to total interest expense, and
(ii) total debt to earnings before interest, taxes, depreciation and
amortization.
The Credit Agreement contains certain events of default, including the failure
to make payments when due, defaults under other material agreements or
instruments of indebtedness of specific amounts, noncompliance with covenants,
material breaches of representations and warranties, ERISA matters, impairment
of security interests in collateral, change of control and specified events
under the Disbursement Agreement (including the failure or inability to
complete Wynn Las Vegas or, if applicable, Encore at Wynn Las Vegas, by the
specified completion dates), failure to pay certain judgments and certain
events of bankruptcy, subject in some cases to applicable notice provisions and
grace periods. The consequences of an event of default may include termination
of the commitments under the new credit facilities, acceleration of all amounts
due under the new credit facilities, and various other remedies that could
include, among other things, foreclosure on substantially all of WLV's assets.
The Credit Agreement is filed herewith as Exhibit 10.2 and incorporated herein
by reference.
Disbursement Agreement
On December 14, 2004, in connection with the refinancing transactions described
herein, WLV entered into a disbursement agreement (the "DISBURSEMENT
AGREEMENT") with Deutsche Bank Trust Company Americas, as the administrative
agent, Deutsche Bank Trust Company Americas, as the disbursement agent, and
U.S. Bank National Association, as the Notes Trustee.
The Disbursement Agreement sets forth WLV's material obligations to complete
the Wynn Las Vegas hotel and casino resort and, if applicable, develop,
construct and complete Encore at Wynn Las Vegas (collectively, the "PROJECTS")
and establishes mechanics for approval of a line item budget and a schedule for
the completion of construction of Wynn Las Vegas and, if and when applicable,
the construction of Encore at Wynn Las Vegas. The Disbursement Agreement also
establishes the conditions to, and the relative sequencing of, the making of
advances and disbursements under the new credit facilities and from the
proceeds of the First Mortgage Notes, and establishes the obligations of the
lenders and the administrative agent under the new credit facilities to advance
and disburse, respectively, funds under the new credit facilities and the
obligation of the Notes Trustee to release funds from the First Mortgage Notes
proceeds account upon satisfaction of such conditions. The Disbursement
Agreement also sets forth the mechanics for approving change orders and
amendments to the construction budgets and the construction schedules for the
Projects. The Disbursement Agreement includes certain representations,
warranties, covenants and events of default that relate to construction of the
Projects.
Under the Disbursement Agreement, WLV is permitted to use the proceeds of the
First Mortgage Notes and borrowings under the new credit facilities to pay for
costs related to the development, construction, outfitting and opening of the
Projects (including financing costs and interest during construction) and,
subject to certain limitations, corporate overhead and related costs
(collectively, "PROJECT COSTS"). Except as provided in the following paragraph,
the proceeds of the new credit facilities and the First Mortgage Notes will not
be available to pay Project Costs related to Encore at Wynn Las Vegas until a
majority of the arrangers (by number) or a majority of the lenders under the
new credit facilities (in consultation with the construction consultant) have
approved, among other things, the Encore Budget, Schedule, Plans and
Specifications and certain construction-related agreements (including certain
material construction and design contracts), and WLV shall have satisfied
certain other conditions precedent relating to Encore at Wynn Las Vegas.
Prior to the approval of the Encore Budget, Schedule, Plans and Specifications,
as set forth above, the Disbursement Agreement will permit disbursements of up
to $100.0 million in the aggregate from the borrowings under the new credit
facilities and the proceeds of the First Mortgage Notes to pay for Project
Costs related to Encore at Wynn Las Vegas pursuant to abbreviated disbursement
procedures set forth in the Disbursement Agreement. No more than $100.0 million
from the proceeds of the new credit facilities and the First Mortgage Notes
will be disbursed for application toward Project Costs related to Encore at
Wynn Las Vegas prior to the opening of Wynn Las Vegas. Thereafter, if the
Encore Budget, Schedule, Plans and Specifications have been approved, the
entire amount of the borrowings under the new credit facilities (subject to
exceptions for working capital and other purposes, including amounts necessary
for final completion of Wynn Las Vegas) and the remaining proceeds of the First
Mortgage Notes will be available for application toward Project Costs related
to Encore at Wynn Las Vegas in accordance with the Disbursement Agreement.
The Disbursement Agreement sets forth the order in which funds from the various
sources will be made available to WLV. WLV expects that a significant portion
of the funds needed to pay Project Costs in respect of Encore at Wynn Las Vegas
will come from WLV's operating cash flows after opening of Wynn Las Vegas.
WLV's failure to achieve operating cash flows, or obtain other funds,
sufficient to fund certain of the Project Costs for Encore at Wynn Las Vegas
would prevent WLV from obtaining disbursements and may cause an event of
default under the Disbursement Agreement and, as a result, under the Indenture
and the Credit Agreement.
In order to implement the funding of disbursements, the Disbursement Agreement
calls for the maintenance of certain accounts, each of which will, subject to
certain exceptions, secure WLV's obligations under the new credit facilities
and the First Mortgage Notes; provided that the secured account holding the
proceeds of the First Mortgage Notes will secure only WLV's obligations under
the First Mortgage Notes, and the secured account holding the proceeds of the
new credit facilities will secure only WLV's obligations to the lenders under
the new credit facilities. The accounts will include a company's funds account,
a notes proceeds account, a bank proceeds account, a disbursement account, a
cash management account, a completion guarantee deposit account and a liquidity
reserve account.
The Disbursement Agreement obligates WLV to comply with various affirmative and
negative covenants. Upon the occurrence and during the continuance of an event
of default under the Disbursement Agreement, the lenders under the new credit
facilities and the Notes Trustee will be entitled to suspend their respective
obligations to make any further disbursements under the Disbursement Agreement.
Provisions under the Disbursement Agreement can be amended or waived by the
agent for the New Credit Facilities (acting under the Credit Agreement) without
the consent of the Notes Trustee.
The Disbursement Agreement will terminate after final completion of Wynn Las
Vegas or, if the Encore Budget, Schedule, Plans and Specifications have been
approved and WLV has elected to construct it, after final completion of Encore
at Wynn Las Vegas. The Disbursement Agreement will cease to apply to Wynn Las
Vegas after final completion of Wynn Las Vegas. Upon termination of the
Disbursement Agreement, all amounts remaining in any Disbursement Agreement
accounts other than amounts on deposit in the liquidity reserve account will be
released to WLV, and the covenants contained in the Disbursement Agreement will
cease to apply. Amounts remaining on deposit in the liquidity reserve account
at substantial completion will be available to WLV under certain circumstances
to pay debt service. Upon satisfaction of certain financial tests, amounts
remaining in the liquidity reserve account will be applied to repay the
revolving loans under the New Credit Facilities (without reduction in revolving
loan commitments thereunder).
The Disbursement Agreement is filed herewith as Exhibit 10.3 and incorporated
herein by reference.
Intercreditor Agreement
The Notes Trustee, the lenders under the Credit Agreement and the collateral
agent with respect to the collateral securing the First Mortgage Notes and the
new credit facilities have entered into an intercreditor agreement to govern
the relationship between the noteholders and the lenders (the "INTERCREDITOR
AGREEMENT"). The Intercreditor Agreement imposes restrictions on the
enforcement of remedies with respect to the collateral securing the First
Mortgage Notes and the guarantees under specified circumstances.
The Intercreditor Agreement is filed herewith as Exhibit 10.4 and incorporated
herein by reference.
Relationships with Lenders
The lenders and agents under the Credit Agreement and certain of their
affiliates have performed investment banking, commercial lending and advisory
services for the Registrant and its affiliates, from time to time, for which
they have received customary fees and expenses. Certain of the lenders and
their affiliates have also acted as the initial purchasers for the First
Mortgage Notes. These parties may, from time to time, engage in transactions
with, and perform services for, the Registrant and its affiliates in the
ordinary course of their business.
On December 14, 2004, WLV repaid all amounts outstanding under WLV's Old Credit
Agreement (as defined below), for which Deutsche Bank Securities Inc. acted as
lead arranger and joint book running manager, Banc of America Securities LLC
acted as lead arranger, joint book running manager and syndication agent,
Deutsche Bank Trust Company Americas, an affiliate of Deutsche Bank Securities
Inc., acted as administrative agent and swing line lender, Bear, Stearns & Co.
Inc. acted as arranger and joint book running manager, Bear Stearns Corporate
Lending Inc., an affiliate of Bear, Stearns & Co. Inc., acted as joint
documentation agent and JPMorgan Chase Bank, N.A., an affiliate of J.P. Morgan
Securities Inc., acted as joint documentation agent. Bank of America, N.A., an
affiliate of Banc of America Securities LLC, was a lender under our old credit
facilities. In addition, each of Deutsche Bank Securities Inc., Bear, Stearns &
Co. Inc. and J.P. Morgan Securities Inc. and/or affiliates of each of them was
a lender under WLV's old credit facilities.
On December 14, 2004, WLV repaid all amounts outstanding under WLV's furniture,
fixtures and equipment loan facility (the "FF&E FACILITY"), for which Deutsche
Bank Securities Inc. acted as joint lead arranger, joint book running manager
and lender, Banc of America Leasing & Capital, LLC, an affiliate of Banc of
America Securities LLC, acted as joint lead arranger and joint book running
manager and Bank of America, N.A. and Bank of America, N.A.--Nevada Branch,
affiliates of Banc of America Securities LLC, Societe Generale, an affiliate of
SG Americas Securities, LLC, and Bear, Stearns & Co. Inc. acted as lenders.
Deutsche Bank Trust Company Americas, an affiliate of Deutsche Bank Securities
Inc., acted as administrative agent under a $143.4 million credit facility
incurred by one of the Registrant's affiliates. This credit facility was repaid
in full on December 14, 2004.
Deutsche Bank AG, Hong Kong Branch, an affiliate of Deutsche Bank Securities
Inc., and Societe Generale Asia Limited, an affiliate of SG Americas
Securities, LLC, acted as global coordinating lead arrangers under a $397.0
million definitive credit agreement executed on September 14, 2004 by one of
the Registrant's affiliates to partially finance the Wynn Macau project.
Deutsche Bank Securities Inc. acted as sole book-running manager in the recent
offering of 7,500,000 shares of the Registrant's common stock. The offering,
which was consummated on November 15, 2004, was made pursuant to an existing
shelf registration statement previously filed with, and declared effective by,
the SEC. Deutsche Bank Securities Inc. also exercised an option to purchase an
additional 1,125,000 shares to cover over-allotments. The sale of the
over-allotment shares was consummated on December 10, 2004.
ITEM 1.02. TERMINATION OF A MATERIAL DEFINITIVE AGREEMENT.
In connection with the refinancing described under Item 1.01 of this Report,
all obligations under the following agreements were satisfied and discharged:
Old Credit Facilities
On December 14, 2004, WLV repaid in full (approximately $458.6 million) the
outstanding balance under its senior credit facility evidenced by the Credit
Agreement, dated as of October 30, 2002 (the "OLD CREDIT AGREEMENT"), and as
subsequently amended from time to time, among WLV, the Lenders (as defined
therein), Deutsche Bank Securities, Inc., Deutsche Bank Trust Company Americas,
Banc of America Securities LLC, Bear, Stearns & Co. Inc., Bear Stearns
Corporate Lending Inc., Dresdner Bank AG, New York and Grand Cayman Branches,
and JPMorgan Chase Bank, and terminated all lending commitments thereunder. All
collateral pledged to secure obligations under the Old Credit Agreement was
released on December 14, 2004.
FF&E Facilities
On December 14, 2004, WLV repaid in full (approximately $71.3 million) the
outstanding balance under its FF&E Facility evidenced by the Loan Agreement,
dated as of October 30, 2002, and as subsequently amended from time to time, by
and among WLV, Wells Fargo Bank, National Association (f/k/a Wells Fargo Bank
Nevada, National Association) and the Persons listed on Schedule 1A thereto,
and terminated all lending commitments thereunder. All collateral pledged in
respect of the FF&E Facility was released on December 14, 2004.
Bora Bora Facility
On December 14, 2004, Bora Bora, LLC, a Nevada limited liability company and an
affiliate of WLV, repaid in full (approximately $143.4 million) the outstanding
balance under its loan (the "LAND LOAN") evidenced by the Credit Agreement,
dated as of May 3, 2004, and as subsequently amended from time to time, by and
among Bora Bora, LLC, the Lenders from time to time party thereto and Deutsche
Bank Trust Company Americas. The Land Loan was secured by the land on which WLV
intends to construct Encore at Wynn Las Vegas. All collateral pledged in
respect of the Land Loan was released on December 14, 2004.
Second Mortgage Notes
On December 14, 2004, WLV accepted for payment approximately $237.4 million in
aggregate principal amount of the second mortgage notes validly tendered (and
not validly withdrawn) in response to its offer to purchase and consent
solicitation for any and all of the Issuers' outstanding 12% Second Mortgage
Notes due 2010, issued under an Indenture, dated as of October 30, 2002 (the
"SECOND MORTGAGE NOTES INDENTURE"), by and among the Issuers, the Initial
Guarantors (as defined therein) and Wells Fargo Bank, National Association, as
trustee (the "SECOND MORTGAGE NOTES TRUSTEE").
On December 14, 2004, the Issuers entered into a Supplemental Indenture, dated
as of December 14, 2004 (the "SUPPLEMENTAL INDENTURE"), with the Second
Mortgage Notes Trustee. The Supplemental Indenture (i) eliminated substantially
all of the restrictive covenants contained in the Second Mortgage Notes
Indenture; (ii) eliminated certain events of default; and (iii) released the
guarantees of the Registrant and certain of the Issuers' affiliates. The
Supplemental Indenture is filed herewith as Exhibit 10.5 and incorporated
herein by reference.
Also, on December 14, 2004, the Issuers effected a discharge of the Second
Mortgage Notes Indenture and collateral documents related thereto. The Second
Mortgage Notes remaining outstanding after the consummation of the tender offer
and consent solicitation described above (approximately $10.1 million in
aggregate principal amount) have been called for redemption on November 1,
2006, at a price of 112% of the principal amount, plus accrued and unpaid
interest to the redemption date. In order to effect the satisfaction and
discharge, the Issuers deposited in trust with the Second Mortgage Notes
Trustee government securities with an aggregate face value of approximately
$10.14 million (the amounts necessary to pay when due all interest payments and
the redemption price on the redemption date), and additional funds to discharge
amounts payable under the Second Mortgage Notes Indenture.
As a result of the satisfaction and discharge, the Issuers are not subject to
any restrictive covenants under the Second Mortgage Notes Indenture, and the
guarantees and collateral securing the Second Mortgage Notes were released.
ITEM 2.03 CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION
UNDER AN OFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT
The information set forth in Item 1.01 is incorporated herein by reference.
ITEM 3.03 MATERIAL MODIFICATIONS TO RIGHTS OF SECURITY HOLDERS
The information set forth in Item 1.02 under the heading "Second Mortgage
Notes" is incorporated herein by reference.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits:
Exhibit
Number Description
------- -----------
10.1 Indenture, dated as of December 14, 2004, among Wynn
Las Vegas, LLC, Wynn Las Vegas Capital Corp., the
Guarantors set forth therein and U.S. Bank National
Association, as trustee.
10.2 Credit Agreement, dated as of December 14, 2004,
among Wynn Las Vegas, LLC, Deutsche Bank Securities
Inc., Deutsche Bank Trust Company Americas, Banc of
America Securities LLC, Bank of America, N.A., Bear
Stearns Corporate Lending Inc., Bear, Stearns & Co.
Inc., JPMorgan Chase Bank, N.A., J.P. Morgan
Securities Inc., Societe Generale and SG Americas
Securities, LLC.
10.3 Master Disbursement Agreement, dated as of December
14, 2004, among Wynn Las Vegas, LLC, Wynn Las Vegas
Capital Corp., Deutsche Bank Trust Company Americas
and U.S. Bank National Association.
10.4 Intercreditor Agreement, dated as of December 14,
2004, among Deutsche Bank Trust Company Americas, as
bank agent, Deutsche Bank Trust Company Americas, as
collateral agent, and U.S. Bank National Association,
as trustee.
10.5 Supplemental Indenture, dated as of December 14,
2004, among Wynn Las Vegas, LLC, Wynn Las Vegas
Capital Corp., the Guarantors set forth therein and
Wells Fargo Bank, National Association, as trustee.
99.1 Press Release, dated December 14, 2004, of Wynn
Resorts, Limited.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: December 16, 2004
Wynn Resorts, Limited
By: /s/ Marc Shorr
---------------------------
Marc Shorr
Chief Operating Officer
Exhibit 10.1
EXECUTION COPY
--------------
- -------------------------------------------------------------------------------
WYNN LAS VEGAS, LLC
and
WYNN LAS VEGAS CAPITAL CORP.,
as joint and several obligors
AND
LAS VEGAS JET, LLC
WORLD TRAVEL, LLC
WYNN GOLF, LLC
WYNN SHOW PERFORMERS, LLC
and
WYNN SUNRISE, LLC,
as guarantors
SERIES A AND SERIES B
65/8% FIRST MORTGAGE NOTES DUE 2014
_______________________
INDENTURE
Dated as of December 14, 2004
_______________________
_______________________
U.S. BANK NATIONAL ASSOCIATION
Trustee
_______________________
- -------------------------------------------------------------------------------
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)............................................ 7.10
(a)(2).......................................... 7.10
(a)(3).......................................... N.A.
(a)(4).......................................... N.A.
(a)(5).......................................... 7.10
(b)............................................. 7.10
(c)............................................. N.A.
311(a)............................................... 7.11
(b)............................................. 7.11
(c)............................................. N.A.
312(a)............................................... 2.05
(b)............................................. 14.03
(c)............................................. 14.03
313(a)............................................... 7.06
(b)............................................. 10.03
(b)(2).......................................... 7.06; 7.07
(c)............................................. 7.06; 14.02
(d)............................................. 7.06
314(a)............................................... 4.03;14.02; 14.05
(b)............................................. 10.02
(c)(1).......................................... 14.04
(c)(2).......................................... 14.04
(c)(3).......................................... N.A.
(d)............................................. 10.03, 10.04, 10.05
(e)............................................. 14.05
(f)............................................. N.A.
315(a)............................................... 7.01
(b)............................................. 7.05,14.02
(c)............................................. 7.01
(d)............................................. 7.01
(e)............................................. 6.11
316(a) (last sentence)............................... 2.09
(a)(1)(A)....................................... 6.05
(a)(1)(B)....................................... 6.04
(a)(2).......................................... N.A.
(b)............................................. 6.07
(c)............................................. 2.12
317(a)(1)............................................ 6.08
(a)(2).......................................... 6.09
(b)............................................. 2.04
318(a)............................................... N.A.
(b)............................................. N.A.
(c)............................................. 14.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions..................................................................................1
Section 1.02 Other Definitions...........................................................................46
Section 1.03 Incorporation by Reference of Trust Indenture Act...........................................47
Section 1.04 Rules of Construction.......................................................................48
ARTICLE 2.
THE NOTES
Section 2.01 Form and Dating.............................................................................48
Section 2.02 Execution and Authentication................................................................50
Section 2.03 Registrar and Paying Agent..................................................................50
Section 2.04 Paying Agent to Hold Money in Trust.........................................................51
Section 2.05 Holder Lists................................................................................51
Section 2.06 Transfer and Exchange.......................................................................51
Section 2.07 Replacement Notes...........................................................................65
Section 2.08 Outstanding Notes...........................................................................65
Section 2.09 Treasury Notes..............................................................................66
Section 2.10 Temporary Notes.............................................................................66
Section 2.11 Cancellation................................................................................66
Section 2.12 Defaulted Interest..........................................................................66
Section 2.13 Issuance of Additional Notes................................................................67
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee..........................................................................67
Section 3.02 Selection of Notes to Be Redeemed or Purchased..............................................68
Section 3.03 Notice of Redemption........................................................................68
Section 3.04 Effect of Notice of Redemption..............................................................69
Section 3.05 Deposit of Redemption or Purchase Price.....................................................69
Section 3.06 Notes Redeemed or Purchased in Part.........................................................69
Section 3.07 Optional Redemption.........................................................................70
Section 3.08 Mandatory Redemption........................................................................70
Section 3.09 Mandatory Disposition or Redemption Pursuant to Gaming Laws.................................70
Section 3.10 Offer to Purchase by Application of Excess Proceeds.........................................72
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes............................................................................74
Section 4.02 Maintenance of Office or Agency.............................................................74
Section 4.03 Reports.....................................................................................74
Section 4.04 Compliance Certificate......................................................................75
Section 4.05 Taxes.......................................................................................76
Section 4.06 Stay, Extension and Usury Laws..............................................................76
Section 4.07 Restricted Payments.........................................................................76
Section 4.08 Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries of Wynn Las Vegas..............................................................80
Section 4.09 Incurrence of Indebtedness and Issuance of Disqualified Stock...............................81
Section 4.10 Asset Sales.................................................................................86
Section 4.11 Transactions with Affiliates................................................................88
Section 4.12 Liens.......................................................................................89
Section 4.13 Line of Business............................................................................89
Section 4.14 Corporate and Organizational Existence......................................................90
Section 4.15 Offer to Purchase Upon Change of Control....................................................90
Section 4.16 Events of Loss..............................................................................92
Section 4.17 Designation of Restricted and Unrestricted Subsidiaries.....................................94
Section 4.18 Construction................................................................................95
Section 4.19 Limitations on Use of Proceeds..............................................................95
Section 4.20 Limitation on Status as Investment Company..................................................95
Section 4.21 Limitation on Sale and Leaseback Transactions...............................................95
Section 4.22 Limitation on Development of Golf Course Land...............................................96
Section 4.23 Restrictions on Payments of Management Fees.................................................97
Section 4.24 Limitation on Issuances and Sales of Equity Interests in
Wholly Owned Restricted Subsidiaries........................................................98
Section 4.25 Amendments to Certain Agreements............................................................98
Section 4.26 Amendments to Operating Agreements and Charter Documents....................................99
Section 4.27 Insurance...................................................................................99
Section 4.28 Additional Collateral; Formation or Acquisition of Restricted
Subsidiaries, Designation of Unrestricted Subsidiaries as
Restricted Subsidiaries or Permitted C-Corp. Conversion....................................100
Section 4.29 Additional Collateral; Acquisition of Assets or Property...................................101
Section 4.30 Further Assurances.........................................................................102
Section 4.31 Payments for Consent.......................................................................102
Section 4.32 Restrictions on Activities of Wynn Capital.................................................103
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets...................................................103
Section 5.02 Successor Corporation Substituted..........................................................104
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default..........................................................................104
Section 6.02 Acceleration...............................................................................107
Section 6.03 Other Remedies.............................................................................108
Section 6.04 Waiver of Past Defaults....................................................................108
Section 6.05 Control by Majority........................................................................108
Section 6.06 Limitation on Suits........................................................................108
Section 6.07 Rights of Holders of Notes to Receive Payment..............................................109
Section 6.08 Collection Suit by Trustee.................................................................109
Section 6.09 Trustee May File Proofs of Claim...........................................................109
Section 6.10 Priorities.................................................................................110
Section 6.11 Undertaking for Costs......................................................................110
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee..........................................................................110
Section 7.02 Rights of Trustee..........................................................................111
Section 7.03 Individual Rights of Trustee...............................................................112
Section 7.04 Trustee's Disclaimer.......................................................................112
Section 7.05 Notice of Defaults.........................................................................113
Section 7.06 Reports by Trustee to Holders of the Notes.................................................113
Section 7.07 Compensation and Indemnity.................................................................113
Section 7.08 Replacement of Trustee.....................................................................114
Section 7.09 Successor Trustee by Merger, etc...........................................................115
Section 7.10 Eligibility; Disqualification..............................................................115
Section 7.11 Preferential Collection of Claims Against Issuers..........................................115
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance...................................115
Section 8.02 Legal Defeasance and Discharge.............................................................116
Section 8.03 Covenant Defeasance........................................................................116
Section 8.04 Conditions to Legal or Covenant Defeasance.................................................117
Section 8.05 Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions......................................................118
Section 8.06 Repayment to Issuers.......................................................................119
Section 8.07 Reinstatement..............................................................................119
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes........................................................119
Section 9.02 With Consent of Holders of Notes...........................................................120
Section 9.03 Compliance with Trust Indenture Act........................................................122
Section 9.04 Revocation and Effect of Consents..........................................................122
Section 9.05 Notation on or Exchange of Notes...........................................................122
Section 9.06 Trustee to Sign Amendments, etc............................................................123
ARTICLE 10.
COLLATERAL AND SECURITY
Section 10.01 Collateral Documents.......................................................................123
Section 10.02 Recording and Opinions.....................................................................124
Section 10.03 Release of Collateral......................................................................124
Section 10.04 Certificates of the Issuers................................................................129
Section 10.05 Certificates of the Trustee................................................................129
Section 10.06 Authorization of Actions to Be Taken by the Trustee Under the
Collateral Documents.......................................................................130
Section 10.07 Authorization of Receipt of Funds by the Trustee Under the
Collateral Documents.......................................................................130
Section 10.08 Rights in the Pledged Collateral...........................................................130
Section 10.09 Termination of Security Interest...........................................................131
ARTICLE 11.
NOTE GUARANTEES
Section 11.01 Note Guarantee.............................................................................131
Section 11.02 Limitation on Guarantor Liability..........................................................132
Section 11.03 Execution and Delivery of Note Guarantee...................................................133
Section 11.04 Guarantors May Consolidate, etc., on Certain Terms.........................................133
Section 11.05 Releases Following Sale of Assets..........................................................134
Section 11.06 Release of Guarantees......................................................................135
ARTICLE 12.
satisfaction and discharge
Section 12.01 Satisfaction and Discharge.................................................................135
Section 12.02 Application of Trust Money.................................................................136
ARTICLE 13.
joint and several liability
Section 13.01 Joint and Several Liability................................................................137
ARTICLE 14.
MISCELLANEOUS
Section 14.01 Trust Indenture Act Controls...............................................................138
Section 14.02 Notices....................................................................................139
Section 14.03 Communication by Holders of Notes with Other Holders of Notes..............................140
Section 14.04 Certificate and Opinion as to Conditions Precedent.........................................140
Section 14.05 Statements Required in Certificate or Opinion..............................................140
Section 14.06 Rules by Trustee and Agents................................................................141
Section 14.07 No Personal Liability of Directors, Officers, Employees and
Equity Holders.............................................................................141
Section 14.08 Governing Law..............................................................................141
Section 14.09 No Adverse Interpretation of Other Agreements..............................................141
Section 14.10 Successors.................................................................................141
Section 14.11 Severability...............................................................................141
Section 14.12 Counterpart Originals......................................................................142
Section 14.13 Table of Contents, Headings, etc...........................................................142
EXHIBITS
Exhibit A-1 FORM OF NOTE
Exhibit A-2 FORM OF REGULATION S TEMPORARY GLOBAL NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
Exhibit G PROJECT SITE
Exhibit H LIST OF COLLATERAL DOCUMENTS
Exhibit I FORM OF DISBURSEMENT AGREEMENT
INDENTURE dated as of December 14, 2004 among Wynn Las Vegas, LLC,
a Nevada limited liability company ("Wynn Las Vegas") and Wynn Las Vegas
Capital Corp., a Nevada corporation ("Wynn Capital," and together with Wynn
Las Vegas, the "Issuers"), as joint and several obligors, and Las Vegas
Jet, LLC, a Nevada limited liability company, World Travel, LLC, a Nevada
limited liability company, Wynn Golf, LLC, a Nevada limited liability
company, Wynn Show Performers, LLC, a Nevada limited liability company and
Wynn Sunrise, LLC, a Nevada limited liability company, as guarantors (the
"Initial Guarantors") and U.S. Bank National Association, as trustee (the
"Trustee").
The Issuers, the Initial Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit
of the Holders (as defined) of the 65/8% First Mortgage Notes due 2014 (the
"Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a Global Note substantially in the form
of Exhibit A-1 hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in the
name of, the Depositary or its nominee that shall be issued in a
denomination equal to the outstanding principal amount of the Notes sold in
reliance on Rule 144A.
"Access Easement Agreement" means that certain Access Easement
Agreement, dated as of the date of this Indenture, by and between Wynn
Golf, LLC and Wynn Las Vegas, as amended, modified or otherwise
supplemented from time to time in any manner that is not in contravention
of Section 4.25 hereof.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time
such other Person is merged with or into or became a Subsidiary of
such specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person merging
with or into, or becoming a Restricted Subsidiary of, such specified
Person; and
(2) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person at the time such asset is acquired
by such specified Person.
"Additional Entertainment Facility" means a showroom or
entertainment facility adjoining the Wynn Las Vegas hotel and casino resort
on the Project Site other than the Entertainment Facility.
"Additional Notes" means Additional Notes (other than the Initial
Notes and the Exchange Notes) issued under this Indenture in accordance
with Section 2.13 hereof, as part of the same series as the Initial Notes.
Any Additional Notes shall vote on all matters as one class with the Notes
being issued on the date hereof, including, without limitation, waivers,
amendments and redemptions.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of this
definition, "control," as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the Voting Stock of a Person shall
be deemed to be control. For purposes of this definition, the terms
"controlling," "controlled by" and "under common control with" shall have
correlative meanings.
"Affiliate Agreements" means:
(1) the Management Agreement,
(2) the Water Show Entertainment Production Agreement,
(3) the Project Lease and Easement Agreements,
(4) the Art Rental and Licensing Agreement,
(5) the Wynn Design Agreement; and
(6) the Wynn IP Agreement,
in each case as amended, modified or otherwise supplemented from time to
time in any manner that is not in contravention of Sections 4.11 and 4.25
hereof.
"Agent" means any Registrar, Paying Agent or additional paying agent.
"Aircraft" means that certain 1999 Boeing 737-79U Business Jet
aircraft bearing manufacturer's serial number 29441 and United States
Federal Aviation Administration Number N88WZ, together with engines
attached thereto, owned by a trust of which World Travel, LLC is the
beneficial interest holder.
"Aircraft Assets" means (1) the Aircraft, together with the
products and proceeds thereof, and (2) the Aircraft Note.
"Aircraft Note" means that certain promissory note, dated as of
October 30, 2002, issued by World Travel, LLC in favor of Wynn Las Vegas in
an aggregate principal amount of $38.0 million.
"Allocable Overhead" means, at any time with respect to each
Qualifying Project, an amount equal to (1) the amount of reasonable
corporate or other organizational overhead expenses of, and actually
incurred by, Wynn Resorts and its Subsidiaries (other than the Issuers)
calculated in good faith on a consolidated basis, after the elimination of
intercompany transactions, in accordance with GAAP, divided by (2) the
number of Qualifying Projects. However, amounts allocated to any Qualifying
Project shall be prorated based on the period within such period that such
Qualifying Project was in operation or financing therefor was obtained.
With respect to any amounts payable pursuant to the Affiliate Agreements or
any agreements entered into by and among Wynn Resorts, any of its
Subsidiaries and/or any of their respective Affiliates, any payment in
respect of Allocable Overhead shall not include any fee, profit or similar
component and shall represent only the payment or reimbursement of actual
costs and expenses. The amount of Allocable Overhead payable during any
12-month period shall not exceed 2.0% of Net Revenues of Wynn Las Vegas and
its Restricted Subsidiaries for such period of four full consecutive fiscal
quarters.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary that apply to such transfer or exchange.
"Art Rental and Licensing Agreement" means the Third Amended and
Restated Art Rental and Licensing Agreement, dated as of August 6, 2004, by
and between Stephen A. Wynn and Wynn Las Vegas, as amended, modified or
otherwise supplemented from time to time in any manner that is not in
contravention of Section 4.25 hereof.
"Aruze Corp." means Aruze Corp., a Japanese public corporation.
"Aruze USA" means Aruze USA, Inc., a Nevada corporation.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any
assets; and
(2) the issuance of Equity Interests by Wynn Capital or any
of the Restricted Subsidiaries or the sale of Equity Interests in Wynn
Capital or any of the Restricted Subsidiaries.
Notwithstanding the preceding, the sale, conveyance or other
disposition of all or substantially all of the assets of Wynn Las Vegas and
its Restricted Subsidiaries, taken as a whole, shall be governed by
Sections 4.15 and 5.01 hereof and not by Section 4.10 hereof.
In addition, none of the following items shall be deemed to be an
Asset Sale (except for purposes of the definition of "Consolidated Cash
Flow") (such items, "Permitted Dispositions"):
(1) any single transaction or series of related transactions
(A) prior to the Phase I Opening Date, that involves assets having a
Fair Market Value of less than $1.0 million or (B) after the Phase I
Opening Date, that involves assets having a Fair Market Value of less
than $3.0 million;
(2) the sale, lease, conveyance or other disposition of any
assets:
(a) to Wynn Las Vegas and/or its Restricted Subsidiaries,
or
(b) by (i) any Restricted Subsidiary that is not a
Guarantor to (ii) any Restricted Subsidiary that is a Guarantor.
(3) an issuance of Equity Interests by Wynn Las Vegas or any
of the Restricted Subsidiaries to Wynn Las Vegas or any of its
Restricted Subsidiaries;
(4) the sale, lease or exchange of equipment, inventory,
accounts receivable or other assets in the ordinary course of
business;
(5) the disposition of obsolete, damaged or worn-out property
that is no longer necessary for the conduct of the business of Wynn
Las Vegas or any of the Restricted Subsidiaries;
(6) the sale or other disposition of cash or Cash
Equivalents;
(7) a Restricted Payment or Permitted Investment that is
permitted under Section 4.07 hereof;
(8) like-kind exchanges of personal property if the Fair
Market Value of the personal property transferred by Wynn Las Vegas or
any of the Restricted Subsidiaries in such exchanges does not exceed
$20.0 million in the aggregate in any calendar year;
(9) a dedication of space within the Projects as necessary
for the development of the Projects and as permitted by the Collateral
Documents;
(10) licenses of patents, trademarks and other intellectual
property rights granted by Wynn Las Vegas or any of the Restricted
Subsidiaries in the ordinary course of business and not interfering in
any material respect with the ordinary conduct of the business of such
Person;
(11) the transfer or sale or disposition of any Released
Assets or Aircraft Assets; provided that any revenues in excess of
$10.0 million (in the aggregate) generated by sales, leases or other
dispositions of any assets in connection with (i) any timeshare,
interval ownership or similar development or (ii) any condominium or
similar development with respect to the Phase III Project, shall
constitute Asset Sales and shall be disposed of in accordance with
Section 4.10;
(12) a transfer of assets between or among Wynn Las Vegas and
the Restricted Subsidiaries pursuant to any Affiliate Agreement;
(13) the granting, creation or existence of a Permitted Lien
and dispositions of assets pursuant to an exercise of remedies,
including by way of foreclosure, against the underlying assets subject
to such Permitted Liens, under circumstances not otherwise resulting
in Defaults or Events of Default, so long as the net proceeds, if any,
of any such disposition received by Wynn Las Vegas or any of its
Restricted Subsidiaries shall be treated as if they were Net Proceeds
of an Asset Sale and applied in accordance with Section 4.10 hereof;
(14) Government Transfers or Permitted Liens of the type
described in clause (12) of the definition of "Permitted Liens," so
long as the net proceeds, if any, of any such disposition received by
Wynn Las Vegas or any of the Restricted Subsidiaries in respect
thereof shall be treated as if they were Net Proceeds of an Asset Sale
and applied in accordance with Section 4.10 hereof; and
(15) transfers, leases or other dispositions of the Koval
Land or any portion of or interest in the Koval Land.
Notwithstanding the foregoing, any sale of assets which requires a
mandatory prepayment of amounts outstanding (or the mandatory reduction of
commitments thereunder) under the Credit Agreement shall constitute an
Asset Sale for purposes of this Indenture.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value of the obligation of
the lessee for net rental payments during the remaining term of the lease
included in such sale and leaseback transaction including any period for
which such lease has been extended or may, at the option of the lessor, be
extended. Such present value shall be calculated using a discount rate
equal to the rate of interest implicit in such transaction, determined in
accordance with GAAP; provided, however, that if such sale and leaseback
transaction results in a Capital Lease Obligation, the amount of
Indebtedness represented thereby shall be determined in accordance with the
definition of "Capital Lease Obligation."
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as that term is used in
Section 13(d)(3) of the Exchange Act), such "person" shall be deemed to
have beneficial ownership of all securities that such "person" has the
right to acquire by conversion or exercise of other securities, whether
such right is currently exercisable or is exercisable only after the
passage of time. The terms "Beneficially Owns" and "Beneficially Owned"
have a corresponding meaning.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors
of the corporation or any committee thereof duly authorized to act
on behalf of such board;
(2) with respect to a partnership, the board of directors
of the general partner of the partnership;
(3) with respect to a limited liability company, the
Person or Persons who are the managing member, members or managers
or any controlling committee or managing members or managers
thereof; and
(4) with respect to any other Person, the board or
committee of such Person serving a similar function.
"Budgeted Overhead Final Payment Date" means the date on which the
final payments in respect of corporate or other organizational overhead
expenses of Wynn Resorts and its Subsidiaries included in the Phase I
Project Budget are disbursed pursuant to the Disbursement Agreement. Wynn
Las Vegas shall deliver an officers' certificate to the trustee, within 30
days following a written request therefor from the Trustee or any Holder of
Notes, confirming and setting forth such date.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease that would at that time be required to be capitalized on a balance
sheet in accordance with GAAP, and the Stated Maturity thereof shall be the
date of the last payment of rent or any other amount due under such lease
prior to the first date upon which such lease may be prepaid by the lessee
without payment of a penalty.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any
and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability
company, partnership interests (whether general or limited) or
membership interests (whether general or limited); and
(4) any other interests or participation that confers on
a Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person, but
excluding from all of the foregoing any debt securities
convertible into Capital Stock, whether or not such debt
securities include any right of participation with Capital Stock.
"Cash Equivalents" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality of the United States government (provided that the
full faith and credit of the United States is pledged in support of
those securities) having maturities of not more than six months from
the date of acquisition;
(3) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition,
bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case, with any lender party to the
Credit Agreement or with any domestic commercial bank having capital
and surplus in excess of $500.0 million and a Thomson Bank Watch
Rating of "B" or better;
(4) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses (2)
and (3) above entered into with any financial institution meeting the
qualifications specified in clause (3) above;
(5) commercial paper having one of the two highest ratings
obtainable from Moody's or S&P and, in each case, maturing within six
months after the date of acquisition;
(6) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1)
through (5) of this definition;
(7) to the extent not permitted in clauses (1) through (6) of
this definition, Permitted Securities; and
(8) to the extent not included in clauses (1) through (7) of
this definition, funds managed or offered by the Trustee that in
invest exclusively in the securities and instruments described in
clauses (1) through (7) above.
"Change of Control" means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or
other disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or substantially all
of the properties or assets of Wynn Las Vegas and its Restricted
Subsidiaries, taken as a whole, or of Wynn Las Vegas and its
Restricted Subsidiaries, taken as a whole, to any "person" (as that
term is used in Section 13(d)(3) of the Exchange Act), other than to
the Principal or a Related Party of the Principal;
(2) the adoption of a plan relating to the liquidation or
dissolution of either Issuer or any successor thereto;
(3) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that:
(a) any "person" (as defined in clause (1) above), other
than the Principal and any of his Related Parties becomes the
Beneficial Owner, directly or indirectly, of more than 50% of the
outstanding Voting Stock of Wynn Resorts, measured by voting power
rather than number of equity interests,
(b) any "person" (as defined in clause (1) above) (other
than Kazuo Okada, Aruze USA and Aruze Corp., so long as (i) the
Stockholders Agreement, as in effect on the date of this Indenture,
remains in full force and effect, (ii) a majority of the Board of
Directors of Wynn Resorts is constituted of Persons named on any slate
of directors chosen by the Principal and Aruze USA pursuant to the
Stockholders Agreement, as in effect on the date of this Indenture,
and (iii) Kazuo Okada and his Related Parties either (A) "control" (as
that term is used in Rule 405 under the Securities Act) Aruze Corp.
and Aruze USA or (B) otherwise remain the direct or indirect
Beneficial Owners of the Voting Stock of Wynn Resorts held by Aruze
Corp.) becomes the Beneficial Owner, directly or indirectly, of a
greater percentage of the outstanding Voting Stock of Wynn Resorts,
measured by voting power rather than number of equity interests, than
is at that time Beneficially Owned by the Principal and his Related
Parties as a group,
(c) prior to the earlier of (i) the Phase II Opening Date
or (ii) December 31, 2007, the Principal and his Related Parties as a
group own less than 80% of the outstanding Voting Stock of Wynn
Resorts owned by such group as of the date of this Indenture; or
(d) prior to the earlier of (i) the Phase II Opening Date
or (ii) December 31, 2007, the Principal and his Related Parties as a
group own less than 10% of the outstanding Voting Stock of Wynn
Resorts, measured by voting power rather than number of Equity
Interests;
(4) the first day before the earlier of (i) the Phase II
Opening Date or (ii) December 31, 2007, on which the Principal does
not act as either the Chairman of the Board of Directors or the Chief
Executive Officer of Wynn Resorts, other than (1) as a result of death
or disability or (2) if the Board of Directors of Wynn Resorts,
exercising their fiduciary duties in good faith, removes or fails to
re-appoint the Principal as Chairman of the Board of Directors or
Chief Executive Officer of Wynn Resorts;
(5) the first day on which a majority of the members of the
respective Boards of Directors of Wynn Resorts or Wynn Capital are not
Continuing Directors;
(6) the first day on which Wynn Resorts ceases to own,
directly or indirectly, 100% of the outstanding Equity Interests of
Wynn Las Vegas; or
(7) Wynn Resorts consolidates with, or merges with or into,
any Person or sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of its assets to any Person, or
any Person consolidates with, or merges with or into, Wynn Resorts, in
any such event pursuant to a transaction in which any of the
outstanding Voting Stock of Wynn Resorts is converted into or
exchanged for cash, securities or other property, other than any such
transaction where the Voting Stock of Wynn Resorts outstanding
immediately prior to such transaction is converted into or exchanged
for Voting Stock (other than Disqualified Stock) of the surviving or
transferee Person constituting a majority of the outstanding shares of
such Voting Stock of such surviving or transferee Person (immediately
after giving effect to such issuance).
Notwithstanding the above, a Change of Control shall not occur
solely by reason of a Permitted C-Corp. Conversion.
"Clearstream" means Clearstream Banking, S.A.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means all assets, now owned or hereafter acquired, of
either Issuer, any Guarantor, any Restricted Subsidiary or any other
Person, to the extent such assets are pledged or assigned or purport to be
pledged or assigned, or are required to be pledged or assigned under this
Indenture or the Collateral Documents to the Trustee, including the
Exclusive Note Collateral and the Primary Note Collateral, together with
the proceeds and products thereof (including, without limitation, the
proceeds of Asset Sales).
"Collateral Agent" shall have the meaning set forth in
Intercreditor Agreement.
"Collateral Documents" means:
(1) the Completion Guarantee,
(2) the Deeds of Trust,
(3) the Disbursement Agreement,
(4) the Security Agreements,
(5) the Intercreditor Agreement,
(6) the Disbursement Collateral Account Agreement,
(7) the Completion Guaranty Collateral Account Agreement;
(8) the Local Bank Collateral Account Agreement;
(9) the Control Agreements;
(10) the Management Fees Subordination Agreement, and
(11) instruments, documents, pledges or filings that create,
evidence, perfect, set forth, consent to, acknowledge or limit the
security interest of the Trustee in the Collateral,
in each case, as amended, modified or otherwise supplemented from time to
time in accordance with their respective terms and with this Indenture and
the Collateral Documents.
"Collateral Release Period" means any period of the time while the
Notes remain outstanding during which the Holders' security interest in all
of the Collateral is released in accordance with the conditions described
in Section 10.03(b) hereof.
"Completion Guarantee" means the Completion Guarantee, dated as of
the date of this Indenture, by the Completion Guarantor in favor of the
Trustee and the agent under the Credit Agreement.
"Completion Guarantee Release Date" means the date on which the
Completion Guarantee Release Conditions are satisfied.
"Completion Guarantee Release Conditions" has the meaning given
the term "Completion Guaranty Release Conditions" in the Disbursement
Agreement.
"Completion Guarantor" means Wynn Completion Guarantor, LLC, a
Nevada limited liability company.
"Completion Guaranty Collateral Account Agreement" means the
Completion Guaranty Collateral Account Agreement, dated as of the date of
this Indenture, among the Completion Guarantor, the securities intermediary
named therein and the Collateral Agent, as amended, modified or otherwise
supplemented from time to time in accordance with its terms, this Indenture
and the other Collateral Documents.
"Consolidated Cash Flow" means, with respect to any specified
Person for any period, the Consolidated Net Income of such Person for such
period plus, without duplication:
(1) an amount equal to any extraordinary loss plus any net
loss realized by such Person or any of its Restricted Subsidiaries in
connection with an Asset Sale, to the extent such losses were deducted
in computing such Consolidated Net Income; plus
(2) provision for taxes based on income or profits or the Tax
Amount of such Person and its Restricted Subsidiaries for such period,
to the extent that such provision for taxes or Tax Amount was included
in computing such Consolidated Net Income; plus
(3) consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued and
whether or not capitalized (including, without limitation,
amortization of debt issuance costs and original issue discount,
non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated
with Capital Lease Obligations, imputed interest with respect to
Attributable Debt, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers' acceptance
financings, and net of the effect of all payments made or received
pursuant to Hedging Obligations), to the extent that any such expense
was deducted in computing such Consolidated Net Income; plus
(4) depreciation, amortization (including amortization of
goodwill and other intangibles but excluding amortization of prepaid
cash expenses that were paid in a prior period), and other non-cash
expenses (excluding any such non-cash expense to the extent that it
represents an accrual of or reserve for cash expenses in any future
period or amortization of a prepaid cash expense) of such Person and
its Restricted Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted
in computing such Consolidated Net Income; plus
(5) any pre-opening expenses, to the extent such pre-opening
expenses were deducted in calculating Consolidated Net Income on a
consolidated basis; plus
(6) non-cash items reducing Consolidated Net Income for such
period, minus
(7) non-cash items increasing such Consolidated Net Income
for such period, other than the accrual of revenue in the ordinary
course of business,
in each case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on
the income or profits of, and the depreciation and amortization and other
non-cash expenses of, a Restricted Subsidiary of Wynn Las Vegas shall be
added to Consolidated Net Income to compute Consolidated Cash Flow of Wynn
Las Vegas only to the extent that a corresponding amount would be permitted
at the date of determination to be distributed to Wynn Las Vegas by such
Restricted Subsidiary without prior governmental approval that has not been
obtained, and without direct or indirect restriction pursuant to the terms
of its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to that Subsidiary
or its equity holders.
"Consolidated EBITDA" means, with respect to any specified Person
for any period, the consolidated net income of such Person and its
Subsidiaries for such period plus, without duplication and to the extent
reflected as a charge in the statement of such consolidated net income for
such period, the sum of (a) income tax expense or the Tax Amount (whether
or not paid during such period), (b) consolidated interest expense of such
Person and its Subsidiaries, amortization or write-off of debt discount and
debt issuance costs and commissions, discounts and other fees and charges
associated with Indebtedness (including, in the case of Wynn Las Vegas, the
loans and letters of credit under the Credit Agreement), (c) depreciation
and amortization expense, (d) amortization of intangibles (including, but
not limited to, goodwill) and (e) any extraordinary expenses or losses
(and, whether or not otherwise includable as separate items in the
statement of such consolidated net income for such period, non-cash losses
on sales of assets outside of the ordinary course of business and
pre-opening expenses related to (i) the initial opening of the Phase I
Project (such pre-opening expenses to be no greater than that set forth in
the Phase I Project Budget), (ii) the initial opening of the Phase II
Project (such pre-opening expenses to be no greater than that set forth in
the Phase II Project Budget) and (iii) the opening of the Entertainment
Facility (such pre-opening expenses in the aggregate to be no greater than
$5.0 million)) and minus, to the extent included in the statement of such
consolidated net income for such period, the sum of (a) interest income
(except to the extent deducted in determining consolidated interest
expense) and (b) any extraordinary income or gains (and, whether or not
otherwise includable as a separate item in the statement of such
consolidated net income for such period, gains on the sales of assets
outside of the ordinary course of business), all as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Leverage Ratio" means as at the last day of any
period of four consecutive fiscal quarters, the ratio of (a) Consolidated
Total Debt on such day to (b) Consolidated EBITDA of Wynn Las Vegas and its
Subsidiaries for such period.
"Consolidated Member" means a Person that joins (or would join
upon the consummation of a Permitted C-Corp. Conversion) in the filing of a
consolidated, combined or unitary tax return for United States federal,
state or local income or franchise tax purposes with Wynn Resorts, Limited,
which Person is Wynn Las Vegas, the Completion Guarantor, or any of their
respective Subsidiaries.
"Consolidated Net Income" means, with respect to any specified
Person for any period, the aggregate of the Net Income of such Person and
its Restricted Subsidiaries for such period, on a consolidated basis,
determined in accordance with GAAP. For purposes of determining
Consolidated Net Income:
(1) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of
dividends or distributions paid in cash to the specified Person or a
Wholly Owned Restricted Subsidiary of such Person;
(2) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that Net Income
is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its equity
holders;
(3) the Net Income (loss) of any Unrestricted Subsidiary
shall be excluded, whether or not distributed to the specified Person
or one of its Subsidiaries; and
(4) the cumulative effect of a change in accounting
principles shall be excluded.
"Consolidated Net Worth" means, with respect to any specified
Person as of any date, the sum of:
(1) the consolidated equity of the common stockholders of
such Person and its consolidated Subsidiaries as of such date; plus
(2) the respective amounts reported on such Person's balance
sheet as of such date with respect to any series of preferred stock
(other than Disqualified Stock) that by its terms is not entitled to
the payment of dividends unless such dividends may be declared and
paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received
by such Person upon issuance of such preferred equity.
"Consolidated Total Debt" means at any date, the aggregate
principal amount of all Indebtedness of Wynn Las Vegas and its Subsidiaries
at such date, determined on a consolidated basis in accordance with GAAP.
"Construction Consultant" means Inspection & Valuation
International, Inc., or any other construction consultant designated under
the Disbursement Agreement.
"Construction Contract" means the Agreement for Guaranteed Maximum
Price Construction Services for Wynn Las Vegas hotel and casino resort,
dated as of June 4, 2002, by and between Wynn Las Vegas and the General
Contractor, as amended, modified or otherwise supplemented from time to
time in any manner that is not in contravention of Section 4.25 hereof.
"Construction Contract Guarantee" means the Amended and Restated
Continuing Guarantee, dated as of October 22, 2002, by the Construction
Contract Guarantor in favor of Wynn Las Vegas, as amended, modified or
otherwise supplemented from time to time in any manner that is not in
contravention of Section 4.25 hereof.
"Construction Contract Guarantor" means Austi, Inc., a Nevada
corporation.
"Continuing Directors" means, as of any date of determination,
with respect to any Person, any member of the Board of Directors of such
Person who:
(1) was a member of such Board of Directors on the date
hereof; or
(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors
who were members of such Board at the time of such nomination or
election.
"Control Agreements" mean (1) the Control Agreement, dated as of
the date of this Indenture, among Wynn Show Performers, the securities
intermediary named therein and the Collateral Agent, (2) the Control
Agreement, dated as of the date of this Indenture, among Wynn Las Vegas,
the securities intermediary named therein and the Collateral Agent, and (3)
the Control Agreement, dated as of the date of this Indenture, among Wynn
Golf, the securities intermediary named therein and the Collateral Agent,
each as amended, modified or otherwise supplemented from time to time in
accordance with its terms, this Indenture and the other Collateral
Documents.
"Corporate Trust Office of the Trustee" means the address of the
Trustee specified in Section 14.02 hereof or such other address as to which
the Trustee may give notice to the Issuers.
"Credit Agreement" means that certain Credit Agreement, dated as
of the date of this Indenture, by and among Wynn Las Vegas, the lenders
party thereto, and Deutsche Bank Trust Company Americas, as sole
administrative agent, Deutsche Bank Securities Inc., as joint advisor,
joint book-running manager and joint lead arranger, Banc of America
Securities LLC, as joint advisor, joint-book running manager and joint lead
arranger, Bank of America, N.A. as sole syndication agent, Bear Stearns
Corporate Lending, Inc., as joint documentation agent, Bear, Stearns & Co.
Inc., a joint book-running manager and arranger, JPMorgan Chase Bank, N.A.,
as joint documentation agent, J.P. Morgan Securities Inc., as joint-book
running manager and arranger, SG Americas Securities, LLC, as arranger and
joint book-running manager, and Societe Generale, as joint book-running
manager and arranger, providing for revolving credit and term loan
borrowings, including any related notes, Guarantees, collateral documents,
instruments and agreements executed in connection therewith, and, in each
case, as amended, supplemented, restated, modified, renewed, refunded,
replaced (whether upon or after termination or otherwise) or refinanced
(whether with the same or different lenders or holders, including by means
of sales of debt securities to institutional investors) from time to time.
"Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Dealership Lease Agreement" means the Dealership Lease Agreement,
to be entered into between Wynn Las Vegas, as lessor, and PW Automotive,
LLC, as lessee, with respect to the lease of space at the Phase I Project
for the development and operation of a Ferrari and Maserati automobile
dealership, as amended, modified or otherwise supplemented from time to
time in any manner that is not in contravention of Section 4.25 hereof.
"Deeds of Trust" means the deeds of trust entered into by the
Issuers and the Guarantors, from time to time for the benefit of the
Collateral Agent, as agent for (1) the administrative agent for the lenders
under the Credit Agreement and (2) the Trustee on behalf of the Holders of
Notes in accordance with the provisions of this Indenture and the
Collateral Documents.
"Default" means any event that is, or with the passage of time or
the giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibit A-1 hereto except that such Note shall
not bear the Global Note Legend and shall not have the "Schedule of
Exchanges of Interest in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued
in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Notes, and any and all
successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this Indenture.
"Designated Officer" means, with respect to any Person, the
Chairman of the Board, the Chief Executive Officer, the President, the
Chief Operating Officer, the Chief Financial Officer, the Treasurer, any
Assistant Treasurer, the Controller, the Secretary or any Vice-President of
such Person.
"Design/Build Contract" means the Design/Build Agreement,
effective as of June 6, 2002, by and between Wynn Las Vegas and Bomel
Construction Company, Inc., as amended, modified or otherwise supplemented
from time to time in any manner that is not in contravention of Section
4.25 hereof.
"Disbursement Agent" means Deutsche Bank Trust Company Americas,
in its capacity as the disbursement agent under the Disbursement Agreement
and its successors in such capacity pursuant to the Disbursement Agreement.
"Disbursement Agreement" means the Master Disbursement Agreement,
dated as of the date of this Indenture, among Wynn Las Vegas, the Trustee,
a representative of the lenders under the Credit Agreement and the
Disbursement Agent in connection with the Projects, as amended, modified or
otherwise supplemented from time to time in accordance with its terms.
"Disbursement Collateral Account Agreement" means the Disbursement
Collateral Account Agreement, dated as of the date of this Indenture, among
Wynn Las Vegas, the securities intermediary named therein and the
Collateral Agent, as amended, modified or otherwise supplemented from time
to time in accordance with its terms, this Indenture and the other
Collateral Documents.
"Disqualified Stock" means any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible, or for which
it is exchangeable, in each case, at the option of the holder of the
Capital Stock), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or redeemable at the option of the holder of the Capital Stock, in whole or
in part, on or prior to the date that is 91 days after the date on which
the Notes mature. Notwithstanding the preceding sentence, (1) any Capital
Stock that would constitute Disqualified Stock solely because the holders
of the Capital Stock have the right to require Wynn Las Vegas to repurchase
such Capital Stock upon the occurrence of a change of control or an asset
sale shall not constitute Disqualified Stock if the terms of such Capital
Stock provide that Wynn Las Vegas may not repurchase or redeem any such
Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.07 hereof and (2) any Capital Stock
shall not constitute Disqualified Stock solely because it is required to be
redeemed under applicable Gaming Laws. The amount of Disqualified Stock
deemed to be outstanding at any time for purposes of this indenture shall
be the maximum amount that Wynn Las Vegas and its Restricted Subsidiaries
may become obligated to pay upon the maturity of, or pursuant to any
mandatory redemption provisions of, such Disqualified Stock, exclusive of
accrued dividends.
"Domestic Subsidiary" means any Restricted Subsidiary of Wynn Las
Vegas that was formed under the laws of the United States or any state of
the United States or the District of Columbia or that guarantees or
otherwise provides direct credit support for any Indebtedness of Wynn Las
Vegas.
"Entertainment Facility" means a showroom or entertainment
facility adjoining the Wynn Las Vegas hotel and casino resort on the
Project Site and connected directly to such hotel, which is initially
expected to feature the musical, "Avenue Q."
"Equity Interests" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt security
that is convertible into, or exchangeable for, Capital Stock).
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear system.
"Event of Loss" means, with respect to any property or asset
(tangible or intangible, real or personal), whether in respect of a single
event or a series of related events, any of the following:
(1) any loss, destruction or damage of such property or
asset;
(2) any actual condemnation, seizure or taking by exercise of
the power of eminent domain or otherwise of such property or asset, or
confiscation of such property or asset or the requisition of the use
of such property or asset; or
(3) any settlement in lieu of clause (2) above.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the Notes issued in the Exchange Offer
pursuant to Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set forth
in the Registration Rights Agreement.
"Exclusive Note Collateral" means the remaining net proceeds of
the offering of the Notes, if any, which are required, under the
Disbursement Agreement, to be deposited into the Secured Account.
"Existing Indebtedness" means Indebtedness of Wynn Las Vegas or
its Subsidiaries (other than Indebtedness under the Credit Agreement) in
existence on the date of this Indenture, until such amounts are repaid or
redeemed.
"Existing Stockholders" means Stephen A. Wynn, Aruze, USA, Inc. and
Baron Asset Fund.
"Fair Market Value" means the value that would be paid by a
willing buyer to an unaffiliated willing seller in a transaction not
involving distress or necessity of either party, determined in good faith
by (1) an appropriate officer of Wynn Las Vegas, in the case of any value
equal to or less than $10.0 million or (2) the Board of Directors of Wynn
Capital, in the event of any value greater than $10.0 million (in each
case, unless otherwise provided in this Indenture). With respect to any
Affiliate Transactions, the Board of Directors' determination must be based
upon an opinion or appraisal issued by an accounting, appraisal or
investment banking firm of national standing if the Fair Market Value
exceeds $25.0 million.
"FF&E Facility" means the Credit Agreement, dated as of October
30, 2002, among Wynn Las Vegas, the collateral agent thereunder and the
lenders party thereto, including any related notes, guarantees, collateral
documents, instruments and agreements executed in connection therewith.
"Fixed Charge Coverage Ratio" means with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such
Person for such period to the Fixed Charges of such Person for such period.
In the event that the specified Person or any of its Restricted
Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems,
defeases or otherwise discharges any Indebtedness (other than ordinary
working capital borrowings) or issues, repurchases or redeems Disqualified
Stock subsequent to the commencement of the period for which the Fixed
Charge Coverage Ratio is being calculated and on or prior to the date on
which the event for which the calculation of the Fixed Charge Coverage
Ratio is made (the "Calculation Date"), then the Fixed Charge Coverage
Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, Guarantee, repayment, repurchase, redemption, defeasance or
other discharge of Indebtedness, or such issuance, repurchase or redemption
of Disqualified Stock, and the use of the proceeds therefrom, as if the
same had occurred at the beginning of the applicable four-quarter reference
period.
In addition, for purposes of calculating the Fixed Charge Coverage
Ratio:
(1) acquisitions that have been made by the specified Person
or any of its Restricted Subsidiaries, including through mergers or
consolidations, or any Person or any of its Restricted Subsidiaries
acquired by the specified Person or any of its Restricted
Subsidiaries, and including any related financing transactions and
including increases in ownership of Restricted Subsidiaries, during
the four-quarter reference period or subsequent to such reference
period and on or prior to the Calculation Date shall be given pro
forma effect (in accordance with Regulation S-X under the Securities
Act) as if they had occurred on the first day of the four-quarter
reference period;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses (and ownership interests therein) disposed of prior to the
Calculation Date, shall be excluded;
(3) the Fixed Charges attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses (and ownership interests therein) disposed of prior to the
Calculation Date, shall be excluded, but only to the extent that the
obligations giving rise to such Fixed Charges shall not be obligations
of the specified Person or any of its Restricted Subsidiaries
following the Calculation Date;
(4) any Person that is a Restricted Subsidiary on the
Calculation Date shall be deemed to have been a Restricted Subsidiary
at all times during such four-quarter period;
(5) any Person that is not a Restricted Subsidiary on the
Calculation Date shall be deemed not to have been a Restricted
Subsidiary at any time during such four-quarter period; and
(6) if any Indebtedness bears a floating rate of interest,
the interest expense on such Indebtedness shall be calculated as if
the rate in effect on the Calculation Date had been the applicable
rate for the entire period (taking into account any Hedging Obligation
applicable to such Indebtedness if such Hedging Obligation has a
remaining term as at the Calculation Date in excess of 12 months).
"Fixed Charges" means, with respect to any specified Person for
any period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued,
including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component
of all payments associated with Capital Lease Obligations, imputed
interest with respect to Attributable Debt, commissions, discounts and
other fees and charges incurred in respect of letter of credit or
bankers' acceptance financings, and net of the effect of all payments
made or received pursuant to Hedging Obligations in respect of
interest rates; plus
(2) the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such period; plus
(3) any interest expense on Indebtedness of another Person
that is guaranteed by such Person or one of its Restricted
Subsidiaries or secured by a Lien on assets of such Person or one of
its Restricted Subsidiaries, whether or not such Guarantee or Lien is
called upon; plus
(4) the product of (a) all dividends, whether paid or accrued
and whether or not in cash, on any series of preferred stock of such
Person or any of its Restricted Subsidiaries, other than dividends on
Equity Interests payable solely in Equity Interests of Wynn Las Vegas
(other than Disqualified Stock) or to Wynn Las Vegas or a Restricted
Subsidiary of Wynn Las Vegas, times (b) a fraction, the numerator of
which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of such
Person (or, in the case of a Person that is a partnership or a limited
liability company, the combined federal, state and local income tax
rate that was or would have been utilized to calculate the Tax Amount
of such Person), expressed as a decimal, in each case, determined on a
consolidated basis in accordance with GAAP.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant
segment of the accounting profession, which are in effect on the date of
this Indenture.
"Gaming Authority" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever
of the United States federal government, any foreign government, any state,
province or city or other political subdivision or otherwise, whether now
or hereafter in existence, including the Nevada Gaming Commission, the
Nevada State Gaming Control Board, the Clark County Liquor and Gaming
Licensing Board and any other applicable gaming regulatory authority or
agency, in each case, with authority to regulate the sale or distribution
of liquor or any gaming operation (or proposed gaming operation) owned,
managed or operated by Wynn Las Vegas or any of the Restricted
Subsidiaries.
"Gaming Facility" means any building or other structure used or
expected to be used to enclose space in which a gaming operation is
conducted and (1) is wholly or partially owned, directly or indirectly, by
Wynn Las Vegas or any Restricted Subsidiary or (2) any portion or aspect of
which is managed or used, or expected to be managed or used, by Wynn Las
Vegas or any Restricted Subsidiary.
"Gaming Law" means the gaming laws, rules, regulations or
ordinances of any jurisdiction or jurisdictions to which Wynn Las Vegas or
any of the Restricted Subsidiaries is, or may be at any time after the date
of this Indenture, subject.
"Gaming License" means any license, permit, franchise or other
authorization from any Gaming Authority necessary on the date of this
Indenture or at any time thereafter to own, lease, operate or otherwise
conduct the gaming business of Wynn Las Vegas or any of its Restricted
Subsidiaries.
"Global Note Legend" means the legend set forth in Section
2.06(g)(2), which is required to be placed on all Global Notes issued under
this Indenture.
"Global Notes" means each of the global Notes issued in accordance
with Section 2.01 and substantially in the form of Exhibit A-1 attached
hereto that, except as otherwise provided in Section 2.01(b) hereof, bear
the Global Note Legend and that have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto, and that are deposited with
or on behalf of and registered in the name of the Depositary.
"Golf Course" means the 18-hole championship golf course to be
located on the Golf Course Land.
"Golf Course Construction Contract" means the Lump Sum Agreement,
effective as of February 18, 2003, by and between Wynn Las Vegas, LLC and
Wadsworth Golf Construction Company, relating to the construction of the
new golf course on the Project Site, as amended, modified or otherwise
supplemented from time to time in accordance with the Disbursement
Agreement.
"Golf Course Design Services Agreement" means that certain Golf
Course Design Services Agreement, to which Wynn Las Vegas is a party, as
amended, modified or otherwise supplemented from time to time in any manner
that is not in contravention of Section 4.25 hereof.
"Golf Course Land" means that portion of the Project Site
described in Exhibit Q-3 to the Disbursement Agreement designated as the
Golf Course Land (both the fee interest and leasehold interest estates) in
the Collateral Documents, together with all improvements thereon and all
rights appurtenant thereto, other than, for purposes of Section 4.22
hereof, homesites adjacent thereto to be used to construct a residence for
Stephen A. Wynn.
"Golf Course Lease" means the Golf Course Lease, dated as of the
date of this Indenture, between Wynn Golf, as lessor, and Wynn Las Vegas,
as lessee, with respect to the lease of land on the Golf Course, as
amended, modified or otherwise supplemented from time to time in any manner
that is not in contravention of Section 4.25 hereof.
"Government Securities" means securities that are:
(1) direct obligations of the United States of America for
the timely payment of which its full faith and credit is pledged; or
(2) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America
the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America;
which, in either case, are not callable or redeemable at the option of the
issuer thereof, and will include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended), as
custodian with respect to any such Government Security or a specific
payment of principal of or interest on any such Government Security held by
such custodian for the account of the holder of such depository receipt;
provided that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of
the Government Security or the specific payment of principal of or interest
on the Government Security evidenced by such depository receipt.
"Government Transfers" means:
(1) any seizures, condemnations, confiscations or takings by
the power of eminent domain or other similar mandatory actions, in
each case by a governmental authority against real property held by
Wynn Las Vegas or any of the Restricted Subsidiaries, or
(2) any transfers of interests in real property held by Wynn
Las Vegas or any of the Restricted Subsidiaries to any State of
Nevada, Clark County or local governmental authority consisting of
easements, rights-of-way, dedications, exchanges or swaps or other
similar transfers undertaken in furtherance of the development,
construction or operation of the Projects, so long as such transfers,
individually and in the aggregate, do not materially interfere with
the ordinary course of business or the assets or operations of Wynn
Las Vegas or any of the Restricted Subsidiaries, or materially detract
from the value of the real property subject thereto.
"Guarantee" means a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of business,
direct or indirect, in any manner including, without limitation, by way of
a pledge of assets or through letters of credit or reimbursement agreements
in respect thereof, of all or any part of any Indebtedness (whether arising
by virtue of partnership arrangements, or by agreements to keep-well, to
purchase assets, goods, securities or services, to take or pay or to
maintain financial statement conditions or otherwise).
"Guarantor" means each of:
(1) the Restricted Subsidiaries that are Domestic
Subsidiaries, other than Immaterial Subsidiaries, and
(2) any other Person that provides a Guarantee by executing a
supplemental indenture in accordance with the provisions of this
Indenture,
and, except to the extent the applicable Note Guarantee is released in
accordance with the applicable provisions of this Indenture, their
respective successors and assigns (other than the Issuers). A Person shall
cease to be a Guarantor following the release of its Note Guarantee as
described in Sections 11.05 and 11.06 hereof.
"Hedging Obligations" means, with respect to any specified Person,
the obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to
floating or from floating to fixed), interest rate cap agreements and
interest rate collar agreements;
(2) other agreements or arrangements designed to manage
interest rates or interest rate risk; and
(3) other agreements or arrangements designed to protect such
Person against fluctuations in currency exchange rates and/or
commodity prices.
"Holder" means any registered holder, from time to time, of the
Notes. Only registered holders shall have any rights under this Indenture.
"Home Site Land" means a tract of land (not to exceed 20 acres)
located on the Golf Course Land where residential and non-gaming related
developments may be built, after the release of the Trustee's Liens (for
the benefit of the Holders) thereon in accordance with Section 10.03(d)
hereof.
"IAI Global Note" means a Global Note substantially in the form of
Exhibit A-1 hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee that shall be issued in a denomination equal to
the outstanding principal amount of the Notes sold to Institutional
Accredited Investors.
"Immaterial Subsidiary" means, as of any date, any Restricted
Subsidiary whose total assets, as of that date, are less than $500,000 and
whose total revenues for the most recent 12-month period do not exceed
$500,000; provided that a Restricted Subsidiary shall not be considered to
be an Immaterial Subsidiary if it, directly or indirectly, guarantees or
otherwise provides direct credit support for any Indebtedness of Wynn Las
Vegas.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person (excluding accrued expenses and trade
payables), whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in
respect thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations or Attributable
Debt;
(5) representing the balance deferred and unpaid of the
purchase price of any property or services due more than six months
after such property is acquired or such services are completed; or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of
credit, Attributable Debt and Hedging Obligations) would appear as a
liability upon a balance sheet of the specified Person prepared in
accordance with GAAP. In addition, the term "Indebtedness" includes all
Indebtedness of others secured by a Lien on any asset of the specified
Person (whether or not such Indebtedness is assumed by the specified
Person) and, to the extent not otherwise included, the Guarantee by the
specified Person of any Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value of the Indebtedness, in the case of
any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, together with
any interest on the Indebtedness that is more than 30 days past due,
in the case of any other Indebtedness;
(3) in the case of a Guarantee of Indebtedness, the maximum
amount of the Indebtedness guaranteed under such Guarantee; and
(4) in the case of Indebtedness of others secured by a Lien
on any asset of the specified Person, the lesser of:
(a) the face amount of such Indebtedness (plus, in the
case of any letter of credit or similar instrument, the amount of any
reimbursement obligations in respect thereof), and
(b) the Fair Market Value of the asset(s) subject to such
Lien.
Notwithstanding anything contained in this Indenture to
the contrary, any obligation of the Issuers or the Restricted
Subsidiaries incurred in the ordinary course of business in
respect of casino chips or similar instruments shall not
constitute "Indebtedness" for any purpose under this Indenture.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Purchasers" means Deutsche Bank Securities, Inc., Banc of
America Securities LLC, Bear, Stearns & Co. Inc., J.P. Morgan Securities Inc.
and SG Americas Securities, LLC.
"Initial Notes" means the first $1.3 billion aggregate principal
amount of Notes issued under this Indenture on the date of this Indenture.
"Institutional Accredited Investor" means an institution that is
an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act, who are not also QIBs.
"Intercreditor Agreement" means the Intercreditor Agreement, dated
as of the date of this Indenture, among the Trustee, a representative of
the lenders under the Credit Agreement, the Collateral Agent and the other
parties thereto from time to time, as such agreement may be amended,
modified, restated or supplemented in accordance with the terms of this
Indenture.
"Investments" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including Affiliates)
in the forms of loans (including Guarantees or other obligations), advances
(excluding advances made to customers in the ordinary course of business)
or capital contributions (excluding commission, travel and similar advances
to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with
GAAP. If Wynn Las Vegas or any of the Restricted Subsidiaries sells or
otherwise disposes of any Equity Interests of any direct or indirect
Restricted Subsidiary of Wynn Las Vegas such that, after giving effect to
any such sale or disposition, such Person is no longer a Restricted
Subsidiary of Wynn Las Vegas, Wynn Las Vegas shall be deemed to have made
an Investment on the date of any such sale or disposition equal to the Fair
Market Value of Wynn Las Vegas' Investments in such Restricted Subsidiary
that were not sold or disposed of in an amount determined as provided in
Section 4.07 hereof. The acquisition by Wynn Las Vegas or any of the
Restricted Subsidiaries that holds an Investment in a third Person shall be
deemed to be an Investment by Wynn Las Vegas or such Restricted Subsidiary
in such third Person in an amount equal to the Fair Market Value of the
Investments held by the acquired Person in such third Person in an amount
determined as provided in Section 4.07 hereof. Except as otherwise provided
in this Indenture, the amount of an Investment shall be determined at the
time the Investment is made and without giving effect to subsequent changes
in value.
"Issuers" means Wynn Las Vegas and Wynn Capital.
"Koval Land" means the approximately 18 acres of land located
across from the Projects on Koval Lane and Sands Avenue which is initially
expected to be used for employee parking and other ancillary uses.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a
payment date is a Legal Holiday at a place of payment, payment may be made
at that place on the next succeeding day that is not a Legal Holiday, and
no interest shall accrue on such payment for the intervening period.
"Lien" means, with respect to any asset, (i) any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected under
applicable law, including any conditional sale or other title retention
agreement, (ii) any lease in the nature thereof, or (iii) any agreement to
deliver a security interest in any asset. Notwithstanding the foregoing,
the trust established and maintained for the sole purpose of holding title
to the Aircraft and which a Restricted Subsidiary of Wynn Las Vegas is the
sole beneficiary thereof shall not be considered a Lien for purposes of
this Indenture.
"Liquidated Damages" means all liquidated damages then owing
pursuant to the Registration Rights Agreement.
"Liquidity Reserve Account" has the meaning set forth in the
Disbursement Agreement.
"Local Bank Collateral Account Agreement" means the Local Bank
Collateral Account Agreement, dated as of the date of this Indenture, among
Wynn Las Vegas, the securities intermediary named therein and the
Collateral Agent, as amended, modified or otherwise supplemented from time
to time in accordance with its terms, this Indenture and the other
Collateral Documents.
"Macau Project" means the gaming and/or hotel project in Macau
contemplated by the Concession Contract for the Operation of Games of Chance or
Other Games in Casinos in the Macau Special Administrative Region of the
People's Republic of China, dated June 24, 2002, between the Macau Special
Administrative Region of the People's Republic of China and Wynn Resorts
(Macau), S.A.
"Management Agreement" means the Management Agreement, dated as of
the date of this Indenture, among Wynn Resorts, as manager, the Issuers and
the Restricted Subsidiaries, as amended, modified or supplemented from time
to time in any manner not in contravention of Section 4.25 hereof.
"Management Fees" means any fees payable pursuant to the Management
Agreement, in an aggregate amount not to exceed, during any 12-month period,
1.5% of Net Revenues of Wynn Las Vegas and its Restricted Subsidiaries for the
period of four full consecutive fiscal quarters of Wynn Las Vegas most recently
ended prior to the commencement of such 12-month period.
"Management Fees Subordination Agreement" means the Management Fees
Subordination Agreement, dated as of the date of this Indenture, by and among
Wynn Resorts, the Issuers, Deutsche Bank Trust Company Americas, as
administrative agent under the Credit Agreement and the Trustee.
"Material Project Assets" means:
(1) assets that are necessary to the development,
construction or operation of the Phase I Project in accordance with
the Phase I Plans and Specifications, or
(2) assets, the absence of which would result in the Phase I
Completion Date occurring after the Phase I Outside Completion
Deadline.
In no event shall (1) Released Assets or (2) assets with a Fair Market
Value less than $100.0 million be considered Material Project Assets.
"Moody's" means Moody's Investors Service, Inc., or any successor to
its statistical rating business, except that any reference to a particular
rating by Moody's shall be deemed to be a reference to the corresponding rating
by any such successor.
"Net Income" means, with respect to any specified Person, the net
income (loss) of such Person, determined in accordance with GAAP (and reduced
by any provision in respect of the Tax Amount attributable to such net income)
and before any reduction in respect of preferred equity dividends, giving
effect to, without duplication, any amounts paid or distributed by Wynn Las
Vegas or any of its Restricted Subsidiaries as Allocable Overhead if and to the
same extent that such amounts would have been included in the calculation of
net income if incurred by Wynn Las Vegas directly, excluding (to the extent
previously taken into account in computing net income), however:
(1) any gain (or loss), together with any related provision
for the Tax Amount on such gain (or loss), realized in connection
with: (a) any Asset Sale; or (b) the disposition of any securities by
such Person or any of its Restricted Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its
Restricted Subsidiaries; and
(2) any extraordinary gain (or loss), together with any
related provision for the Tax Amount on such extraordinary gain (or
loss).
"Net Loss Proceeds" means the aggregate cash proceeds received by
Wynn Las Vegas or any of the Restricted Subsidiaries in respect of any
Event of Loss, including, without limitation, insurance proceeds from
condemnation awards or damages awarded by any judgment, net of:
(1) the direct costs in recovery of such Net Loss Proceeds
(including, without limitation, legal, accounting, appraisal and
insurance adjuster fees and any relocation expenses incurred as a
result thereof),
(2) amounts required to be and actually applied to the
repayment of Indebtedness (other than Indebtedness that is
subordinated in right of payment to the Notes or the Note Guarantees)
permitted under this Indenture that is secured by a Permitted Lien on
the asset or assets that were the subject of such Event of Loss that
ranks prior to the security interest of the Trustee in those assets,
after giving effect to any provisions in the Collateral Documents and
the Intercreditor Agreement as to the relative ranking of security
interests, and
(3) any taxes or Tax Amount paid or payable as a result of
the receipt of such cash proceeds.
"Net Proceeds" means the aggregate cash proceeds received by Wynn
Las Vegas or any of the Restricted Subsidiaries in respect of any Asset
Sale (including, without limitation, any cash received upon the sale or
other disposition of any non-cash consideration received in any Asset
Sale), net of:
(1) the direct costs relating to such Asset Sale, including,
without limitation, legal, accounting and investment banking fees, and
sales commissions, and any relocation expenses incurred as a result of
the Asset Sale and the provision for taxes or Tax Amount paid or
payable as a result of the Asset Sale, in each case, after taking into
account any available tax credits or deductions and any tax sharing
arrangements,
(2) amounts, if any, required to be, and in fact, applied to
the prepayment of Indebtedness permitted under this Indenture (other
than Indebtedness that is subordinated in right of payment to the
Notes or the Note Guarantees) secured by a Permitted Lien on the asset
or assets that were the subject of such Asset Sale that ranks prior to
the security interest of the Trustee in those assets, after giving
effect to any provisions in the Collateral Documents and the
Intercreditor Agreement as to the relative ranking of security
interests, and
(3) any reserve for adjustment in respect of the sale price
of such asset or assets established in accordance with GAAP.
"Net Revenues" means, for any period, the net revenues of Wynn Las
Vegas and its Restricted Subsidiaries, as set forth on Wynn Las Vegas'
income statement for the relevant period under the line item "net
revenues," calculated in accordance with GAAP and with Regulation S-X under
the Securities Act and in a manner consistent with that customarily
utilized in the gaming industry.
"Nevada Gaming Control Act" means Chapter 463 of the Nevada Revised
Statutes.
"Non-Project Assets" means the Released Assets and:
(1) Project Assets that are not necessary to the development,
construction and operation of either the Phase I Project or the Phase
II Project in accordance with the Phase I Plans and Specifications and
the Phase II Plans and Specifications, respectively, and
(2) Project Assets, the absence of which would result in
neither the Phase I Completion Date occurring after the Phase I
Outside Completion Deadline nor the Phase II Completion Date occurring
after the Phase II Outside Completion Deadline.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither Wynn Las Vegas nor any of its
Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would
constitute Indebtedness) (other than a pledge of the Equity Interests
of the Unrestricted Subsidiary that is an obligor with respect to such
Indebtedness), (b) is directly or indirectly liable as a guarantor or
otherwise, or (c) constitutes the lender;
(2) no default with respect to which (including any rights
that the holders of the Indebtedness may have to take enforcement
action against an Unrestricted Subsidiary, other than the Completion
Guarantor) would permit upon notice, lapse of time or both any holder
of any other Indebtedness of Wynn Las Vegas or any of its Restricted
Subsidiaries to declare a default on such other Indebtedness or cause
the payment of the Indebtedness to be accelerated or payable prior to
its Stated Maturity; and
(3) as to which the lenders have been notified in writing
that they shall not have any recourse to the stock or assets of Wynn
Las Vegas or any of its Restricted Subsidiaries (other than the stock
of an Unrestricted Subsidiary pledged by Wynn Las Vegas of one of its
Restricted Subsidiaries to secure Indebtedness of the Unrestricted
Subsidiary)
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Guarantee" means the Guarantee, by each Guarantor of the
Issuers' obligations under this Indenture and the Notes, executed pursuant
to the provisions of this Indenture.
"Notes" has the meaning assigned to it in the preamble to this
Indenture. The Initial Notes and the Additional Notes shall be treated as a
single class for all purposes under this Indenture, and unless the context
otherwise requires, all references to the Notes shall include the Initial
Notes and any Additional Notes.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable
under the documentation governing any Indebtedness (including, without
limitation, interest accruing at the then applicable rate provided in such
documentation after the maturity of such Indebtedness and interest accruing
at the then applicable rate provided in such documentation after the filing
of a petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any debtor under such
documentation, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding).
"Officer" means:
(1) with respect to a corporation, a Designated Officer of
such corporation;
(2) with respect to a partnership, a Designated Officer of
the general partner of such partnership; and
(3) with respect to a limited liability company, a Designated
Officer of such limited liability company, or a Designated Officer of
the manager or managing member of such limited liability company, as
the case may be (or, if such manager or managing member is an
individual, such individual).
"Officers' Certificate" means, with respect to any Person, a
certificate signed on behalf of such Person by:
(1) with respect to a corporation, two Designated Officers of
such corporation;
(2) with respect to a partnership, two Designated Officers of
the general partner of such partnership; and
(3) with respect to a limited liability company, two
Designated Officers of the manager or managing member of such limited
liability company, as the case may be (or, if such manager or managing
member is an individual, such individual),
in each case, that meets the requirement of Section 14.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of
Section 14.05 hereof. The counsel may be an employee of or counsel to Wynn
Las Vegas, any of the Restricted Subsidiaries as the case may be, or the
Trustee.
"Parent" means Wynn Resorts.
"Pari Passu Debt" means any Indebtedness, other than Indebtedness
incurred under the Credit Agreement, that is pari passu with the Notes
containing provisions similar to those set forth in this Indenture with
respect to offers to purchase or redeem with the proceeds of sales of
assets or Events of Loss.
"Participant" means, with respect to the Depositary, a Person who
has an account with the Depositary.
"Pass Through Entity" means any of (1) a grantor trust for United
States federal or state income tax purposes or (2) an entity treated as a
partnership or a disregarded entity for federal or state income tax
purposes.
"Payment and Performance Bond" means any payment and performance
bond delivered under any contract or subcontract (including from the Phase
I General Contractor) in favor of Wynn Las Vegas (or any contractor), the
agent for the lenders under the Credit Agreement and the trustee supporting
the contractor's or subcontractor's obligations under any such contract or
subcontract.
"Permitted Business" means:
(1) the gaming business;
(2) all businesses whether or not licensed by a Gaming
Authority which are necessary for, incident to, useful to, arising out
of, supportive of or connected to the development, ownership or
operation of a Gaming Facility;
(3) any development, construction, ownership or operation of
lodging (including (i) any timeshare, interval ownership or similar
development or (ii) any condominium or similar development with
respect to the Phase III Project), retail and restaurant or convention
facilities, sports or entertainment facilities, golf facilities, art
gallery facilities, food and beverage distribution operations,
transportation services (including operation and chartering of the
Aircraft), sales, leasing and repair of automobiles, parking services,
or other activities related to the foregoing;
(4) any business (including any related and legally
permissible internet business) that is a reasonable extension,
development or expansion of any of the foregoing; and
(5) the ownership by a Person of Capital Stock in its direct
Wholly Owned Subsidiaries.
"Permitted C-Corp. Conversion" means a transaction resulting in
Wynn Las Vegas, the Completion Guarantor or any of the Restricted
Subsidiaries becoming a subchapter "C" corporation under the Code, so long
as, in connection with such transaction:
(1) the subchapter "C" corporation resulting from such
transaction is a corporation organized and existing under the laws of
any state of the United States or the District of Columbia and the
Beneficial Owners of the Equity Interests of the subchapter "C"
corporation shall be the same, and shall be in the same percentages,
as the Beneficial Owners of Equity Interests of the applicable entity
immediately prior to such transaction;
(2) the subchapter "C" corporation resulting from such
transaction assumes in writing all of the obligations, if any, of the
applicable entity under (a) this Indenture, the Notes, the Note
Guarantees by the Guarantors and the Collateral Documents and (b) all
other documents and instruments to which such Person is a party (other
than, in the case of clause (a) only, any documents and instruments
that, individually or in the aggregate, are not material to the
subchapter "C" corporation);
(3) the subchapter "C" corporation resulting from such
transaction complies with Section 4.28 hereof;
(4) the Trustee is given not less than 45 days' advance
written notice of such transaction and evidence satisfactory to the
Trustee (including, without limitation, title insurance and a
satisfactory Opinion of Counsel) regarding the maintenance of the
perfection and priority of liens granted, or intended to be granted,
in favor of the Trustee in the Collateral following such transaction;
(5) such transaction would not cause or result in a Default
or an Event of Default;
(6) such transaction does not result in the loss or
suspension or material impairment of any Gaming License unless a
comparable Gaming License is effective prior to or simultaneously with
such loss, suspension or material impairment;
(7) such transaction does not require any Holder or
Beneficial Owner of the Notes to obtain a Gaming License or be
qualified or found suitable under the laws of any applicable gaming
jurisdiction;
(8) Wynn Las Vegas shall have delivered to the Trustee an
Opinion of Counsel of national repute in the United States reasonably
acceptable to the Trustee confirming that neither Issuer, nor any
Restricted Subsidiary, nor any Guarantor nor any of the Holders shall
recognize income, gain or loss for United States federal or state
income tax purposes as a result of such Permitted C-Corp. Conversion;
and
(9) Wynn Las Vegas shall have delivered to the Trustee a
certificate of the Chief Financial Officer of Wynn Las Vegas
confirming that the conditions in clauses (1) through (8) have been
satisfied.
"Permitted Investments" means:
(1) any Investment by any entity in Wynn Las Vegas or in a
Wholly Owned Restricted Subsidiary of Wynn Las Vegas;
(2) any Investment in Cash Equivalents;
(3) any Investment by Wynn Las Vegas or any Restricted
Subsidiary in a Person that is engaged in a Permitted Business and
that is evidenced by Capital Stock or intercompany notes that are
pledged to the Trustee as Primary Note Collateral, if as a result of
such Investment:
(a) such Person becomes a Wholly Owned Restricted
Subsidiary of Wynn Las Vegas, or
(b) such Person is merged, consolidated or amalgamated
with or into, or transfers or conveys all or substantially all of its
assets to, or is liquidated into, Wynn Las Vegas or a Wholly Owned
Restricted Subsidiary of Wynn Las Vegas, and such Investment complies
with the provisions of Section 5.01 hereof;
(4) any Investment made as a result of the receipt of
non-cash consideration from (i) a Permitted Disposition or (ii) an
Asset Sale or an Event of Loss of the type contemplated by clause (3)
of the definition of "Event of Loss" that was made pursuant to and in
compliance with Sections 4.10 or 4.16 hereof;
(5) Investment, solely in exchange for Equity Interests
(other than Disqualified Stock) of Wynn Resorts;
(6) to the extent constituting an Investment, any extensions
of trade credit in the ordinary course of business and Investments
received in compromise or settlement of obligations of trade creditors
or customers that were incurred in the ordinary course of business,
including pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of any trade creditor or
customer;
(7) any Investment in Hedging Obligations;
(8) to the extent constituting an Investment, licenses of
patents, trademarks and other intellectual property rights granted by
Wynn Las Vegas or any of its Restricted Subsidiaries in the ordinary
course of business and not interfering in any material respect with
the ordinary conduct of the business of such Person;
(9) to the extent constituting an Investment, repurchases of
the Notes;
(10) an Investment in the form of a loan by Wynn Las Vegas to
(a) Wynn Group Asia, Inc., (b) to Wynn Resorts for purposes of an
investment in Wynn Group Asia, Inc., or (c) directly to Wynn Resorts
(Macau), S.A., in each case, on or before August 30, 2005, in an
amount not to exceed $122,000,000, which loan shall be pledged as
Collateral to secure (i) the Indebtedness outstanding under the Credit
Agreement and (ii) the Notes (except in the case of a direct loan to
Wynn Resorts (Macau), S.A., for which no such pledge shall be
required);
(11) Investments held by a Person in a third Person at the
time such Person is acquired by Wynn Las Vegas or any Restricted
Subsidiary of Wynn Las Vegas; provided that such Investments were not
acquired in contemplation of such acquisition by Wynn Las Vegas or
such Restricted Subsidiary;
(12) loans or advances to employees of Wynn Las Vegas or its
Restricted Subsidiaries (other than the Principal) made in the
ordinary course of business not exceeding $5.0 million in the
aggregate outstanding at any time;
(13) to the extent constituting Investments, payroll, travel
and similar advances to cover matters that at the time of such
advances are expected to ultimately be treated as expenses for
accounting purposes and that are made in the ordinary course of
business; and
(14) the assignment of gaming debts evidenced by a credit
instrument, including what are commonly referred to as "markers," to
an Affiliate of Wynn Las Vegas for the purpose of collecting amounts
outstanding under such gaming debts or "markers" due to Wynn Las Vegas
thereunder; provided, however, that any Affiliate receiving any such
assignment enters into a binding agreement to pay all amounts so
collected back to Wynn Las Vegas within 30 days of receipt of payment
of such collected amounts; provided, further, that any such Affiliate
is not, at the time of any such assignment, in default of its
obligations under any such binding agreement previously delivered with
respect to any such assignment.
"Permitted Junior Debt" means any secured Indebtedness, which is
either subordinated in right of payment to the Notes or is secured by Liens
with a lower priority than the Liens securing the Notes, with respect to
which the agent, trustee or other representatives of the lenders or the
holders of such Indebtedness shall have become a party to the Intercreditor
Agreement and which shall be subject to restrictions and the terms
applicable to the holders of "junior debt" (as such term is defined in the
Intercreditor Agreement).
"Permitted Liens" means:
(1) Liens on property of a Person existing at the time such
Person is merged into or consolidated with Wynn Las Vegas or any of
the Restricted Subsidiaries; provided such Liens were in existence
prior to the contemplation of such merger or consolidation and do not
extend to any assets other than those of the Person merged into or
consolidated with Wynn Las Vegas or any of the Restricted
Subsidiaries;
(2) Liens in favor of Wynn Las Vegas or any of the Restricted
Subsidiaries; provided if any such Liens are on any or all of the
Collateral, such Liens are either:
(a) collaterally assigned to the Collateral Agent for the
benefit of the Trustee and the Holders of the Notes, or
(b) contractually subordinated to the security interests
in favor of the Trustee for the benefit of the Holders of the Notes
securing the obligations under the Notes, the Note Guarantees and the
Credit Agreement;
(3) Liens on property existing at the time of acquisition
thereof by Wynn Las Vegas or any of the Restricted Subsidiaries (other
than materials or supplies acquired in connection with developing,
constructing, expanding or equipping of the Projects), provided such
Liens were in existence prior to the contemplation of such
acquisition;
(4) Liens existing on the date of this Indenture and
disclosed in the title commitment for the Deeds of Trust relating to
the Projects or in the applicable schedule(s) to the Credit Agreement,
as in effect on the date of this Indenture;
(5) Liens to secure performance of statutory obligations of,
or obligations to, landlords and carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen or other like obligations arising in
the ordinary course of business and with respect to amounts not yet
delinquent for a period of more than 30 days or which are being
contested in good faith by an appropriate process of law, so long as a
reserve or other appropriate provision as shall be required by GAAP
shall have been made therefor;
(6) any Liens permitted under the Disbursement Agreement;
(7) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings promptly instituted and diligently
concluded, so long as any reserve or other appropriate provision as
shall be required in conformity with GAAP shall have been made
therefor;
(8) Liens on the Collateral created by this Indenture and the
Collateral Documents securing the Indebtedness and other Obligations
under this Indenture and the Collateral Documents, including the
Exchange Notes; provided, however, that this clause (8) shall not be
deemed to permit the extension of the Liens on the Collateral created
by this Indenture and the Collateral Documents with respect to any
Indebtedness incurred after the date of this Indenture as the result
of the issuance of Additional Notes under this Indenture in compliance
with Section 4.09 hereof;
(9) Liens on the Collateral (other than the Exclusive Note
Collateral) securing up to $1.0 billion of Indebtedness and other
Obligations under the Credit Agreement that were permitted by the
terms of this Indenture to be incurred;
(10) Liens on property or assets to secure Indebtedness
permitted by clause (7) of Section 4.09(b) hereof; provided, however,
that so long as such Indebtedness is not incurred under the Credit
Agreement or through the issuance of Additional Notes under this
Indenture, such Liens do not at any time encumber any assets or
property other than the assets or property financed by such
Indebtedness, and the proceeds (including insurance proceeds),
products, rents, profits, accessions and replacements thereof or
thereto; provided, further, to the extent that the Indebtedness
permitted by clause (7) of Section 4.09(b) hereof is incurred under
the Credit Agreement or through the issuance of Additional Notes under
this Indenture and the property or assets acquired with such
Indebtedness becomes part of the Collateral, such Indebtedness may be
secured by the Collateral;
(11) Liens, pledges or deposits to secure the performance of
bids, trade contracts (other than borrowed money), leases, statutory
obligations, appeal bonds and other obligations of like nature, in
each case, in the ordinary course of business, and lease obligations
or nondelinquent obligations under workers' compensation, unemployment
insurance or similar legislation;
(12) without duplication, (i) Government Transfers, and (ii)
easements, rights-of-way, restrictions, zoning, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the business or assets of
Wynn Las Vegas or any of the Restricted Subsidiaries incurred in
connection with a Permitted Business;
(13) Liens on Equity Interests in Unrestricted Subsidiaries
of Wynn Las Vegas but only to the extent that the recourse of the
lender on any Indebtedness which such Lien secures is limited to such
Equity Interests;
(14) Liens on assets or property of Wynn Las Vegas or any of
the Restricted Subsidiaries arising by reason of any attachment or
judgment not constituting an Event of Default under this Indenture, so
long as:
(a) such Liens are being contested in good faith by
appropriate proceedings, and
(b) such Liens are adequately bonded or adequate reserves
have been established on the books of the applicable Person in
accordance with GAAP;
(15) to the extent constituting Liens, ground leases and
subleases in respect of the real property owned or leased by Wynn Las
Vegas or any of the Restricted Subsidiaries, to the extent that such
ground leases and subleases are permitted under this Indenture and the
Collateral Documents and any leasehold mortgage on the lessee's
leasehold interest in the underlying real property in favor of any
party financing the lessee under any such lease or sublease, so long
as:
(a) neither Issuer nor any of the Restricted Subsidiaries
is liable for the payment of any principal of, or interest, premiums
or fees on, such financing, and
(b) the affected lease and leasehold mortgage are
expressly made subject and subordinate to the Lien of the applicable
mortgage securing the Notes, or a Note Guarantee, as the case may be;
(16) Uniform Commercial Code financing statements filed for
precautionary purposes in connection with any true lease of property
leased by Wynn Las Vegas or any of the Restricted Subsidiaries, so
long as any such financing statement does not cover any property other
than the property subject to such lease and the proceeds (including
insurance proceeds), products, rents, profits, accessions and
replacements thereof or thereto;
(17) Liens securing Permitted Refinancing Indebtedness
incurred in accordance with Section 4.09 hereof, so long as:
(a) the Indebtedness being refinanced by such Permitted
Refinancing Indebtedness was secured by a Lien of equivalent or lesser
priority, and
(b) such Liens do not at any time encumber any assets or
property other than the assets or property secured by the Indebtedness
being refinanced by such Permitted Refinancing Indebtedness, and the
proceeds (including insurance proceeds), products, rents, profits,
accessions and replacements thereof or thereto;
(18) Liens securing Indebtedness incurred in accordance with
clauses (10) and/or (14) of Section 4.09(b) hereof and, to the extent
such Indebtedness is incurred under the Credit Agreement, Liens
securing Indebtedness incurred in accordance with clause (11) of
Section 4.09(b) hereof;
(19) Liens created or expressly contemplated by the Affiliate
Agreements, so long as such Liens do not secure Indebtedness;
(20) Liens securing Hedging Obligations permitted to be
incurred in accordance with clause (5) of Section 4.09(b) hereof;
(21) licenses of patents, trademarks and other intellectual
property rights granted by Wynn Las Vegas or any of the Restricted
Subsidiaries in the ordinary course of business and not interfering in
any material respect with the ordinary conduct of the business of such
Person;
(22) Liens on cash disbursed pursuant to the Disbursement
Agreement and deposited with, or held for the account of, Wynn Las
Vegas or any of the Restricted Subsidiaries securing reimbursement
obligations under performance bonds, guaranties, trade letters of
credit, bankers' acceptances or similar instruments permitted under
clause (10) of Section 4.09(b) hereof, granted by Wynn Las Vegas or
any of the Restricted Subsidiaries in favor of the issuers of such
performance bonds, guaranties, trade letters of credit or bankers'
acceptances, so long as:
(a) any cash disbursed to secure such reimbursement
obligations is invested in Permitted Securities only, and
(b) the amount of cash and/or Permitted Securities
secured by such Liens does not exceed 110% of the amount of the
Indebtedness secured thereby (ignoring, for purposes of this clause
(b), any interest earned or paid on such cash and any dividends or
distributions declared or paid in respect of such Permitted
Investments);
(23) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods;
(24) Liens to secure additional Indebtedness incurred at any
time other than during a Collateral Release Period which is permitted
to be incurred pursuant to Section 4.09(a) or clause (8) of Section
4.09(b) hereof;
(25) Liens to secure additional Indebtedness incurred at any
time during a Collateral Release Period which is permitted to be
incurred pursuant to Section 4.09(a) or clause (1) of Section 4.09(b)
hereof; provided that the aggregate amount of such secured
Indebtedness at the time of incurrence does not exceed $100.0 million
at any one time (collectively for all assets and property subject to
such Liens);
(26) Liens on the Aircraft Assets to secure Indebtedness of
World Travel, LLC, which is permitted to be incurred pursuant to
clause (13) of Section 4.09(b) hereof;
(27) Liens not specified in clauses (1) through (25) above
and not otherwise permitted by Section 4.12 hereof, so long as the
aggregate outstanding principal amount of the obligations secured by
all such Liens in the aggregate does not exceed $10.0 million at any
one time (collectively for all assets and property subject to such
Liens);
(28) in the event any loans are made directly to Wynn Resorts
(Macau), S.A. in accordance with clause (10) of the definition of
Permitted Investments, Liens of any lenders or other providers of
Indebtedness to Wynn Resorts (Macaus), S.A. on such loans and the
proceeds thereof; provided that the Indebtedness or other Obligations
secured by any such Lien shall be non-recourse to Wynn Las Vegas and
its Restricted Subsidiaries (other than with respect to such loans);
and
(29) Liens of sellers of goods to Wynn Las Vegas or any of
its Restricted Subsidiaries arising under Article 2 of the UCC or
similar provisions of applicable law in the ordinary course of
business, covering only the goods sold and securing only the unpaid
purchase price for such goods and related expenses.
With respect to any Collateral, notwithstanding the definition of
"Permitted Liens," a Lien shall not be a Permitted Lien on such Collateral
except to the extent that any applicable Collateral Document expressly
permits the applicable Person to create, incur, assume or suffer to exist
such Lien on such Collateral.
"Permitted Refinancing Indebtedness" means any Indebtedness of
Wynn Las Vegas or any of its Restricted Subsidiaries issued within 30 days
after repayment of, in exchange for, or the net proceeds of which are used
to extend, refinance, renew, replace, amend and restate, restate, defease
or refund other Indebtedness of any Person (other than intercompany
Indebtedness), so long as:
(1) the principal amount (or accreted value, if applicable)
of such Permitted Refinancing Indebtedness does not exceed the
principal amount (or accreted value, if applicable) of the
Indebtedness extended, refinanced, renewed, replaced, defeased or
refunded (plus all accrued interest on the Indebtedness and the amount
of all expenses and premiums incurred in connection therewith), so
long as if such Indebtedness is secured by a Lien described in clause
(10) of the definition of "Permitted Liens," the principal amount, or
accreted value shall not exceed the then current Fair Market Value of
the asset so encumbered;
(2) such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to
the Notes or the Note Guarantees, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity
date of, and is subordinated in right of payment to, the Notes or the
Note Guarantees, as applicable, on terms at least as favorable, taken
as a whole, to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded; and
(4) such Indebtedness is incurred by the Person that is the
obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.
"Permitted Securities" means:
(1) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States government or issued
by any agency thereof and backed by the full faith and credit of the
United States, in each case, maturing within 18 months from the date
of acquisition;
(2) shares of money market, mutual or similar funds,
including funds managed or offered by the Trustee, which invest
exclusively in assets satisfying the requirements of clause (1) of
this definition; or
(3) shares of, or an investment in, the JPMorgan Federal
Money Market Fund.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization, limited liability company or government or other entity.
Notwithstanding the foregoing, the trust established and maintained for the
sole purpose of holding title to the Aircraft and which a Restricted
Subsidiary of Wynn Las Vegas is the sole beneficiary thereof shall not be
considered a Person for purposes of this Indenture.
"Phase I Completion" has the meaning given to such term in the
Disbursement Agreement, as in effect on the date of this Indenture.
"Phase I Completion Date" means the date on which Phase I
Completion occurs.
"Phase I Final Completion" has the meaning given to such term in
the Disbursement Agreement, as in effect on the date of this Indenture.
"Phase I Final Completion Date" means the date on which Phase I
Final Completion occurs.
"Phase I General Contractor" means Marnell Corrao Associates, Inc.,
a Nevada corporation.
"Phase I Key Project Documents" means:
(1) the Construction Contract,
(2) the Construction Contract Guarantee,
(3) the Design/Build Contract,
(4) the Golf Course Construction Contract, and
(5) each Payment and Performance Bond,
in each case, as amended, modified or otherwise supplemented from time to
time in accordance with the Disbursement Agreement (or, if Section 4.25
hereof is applicable thereto, as amended, modified or otherwise
supplemented in any manner that is not in contravention of such section).
"Phase I Land" means that portion of the Project Site described in
Exhibit Q-3 to the Disbursement Agreement, as in effect on the date of this
Indenture, together with all improvements thereon and all rights
appurtenant thereto on which the Phase I Project shall be designed,
developed, constructed and operated.
"Phase I Minimum Facilities" means:
(1) a casino which has in operation at least 1,900 slot
machines and 120 table games,
(2) a resort which has approximately 70,000 gross square feet
of retail space, approximately 190,000 gross square feet of
convention, meeting, pre-function and reception facilities, a spa and
salon complex occupying approximately 30,000 gross square feet, at
least 15 food and beverage outlets, seating for approximately 1,900
persons at a show-room for an entertainment production, and
approximately 1,600 parking spaces for guests and other visitors
which, together with existing parking facilities, will provide
approximately 3,500 parking spaces in total for employees, guests and
other visitors,
(3) a hotel with at least 2,565 guest rooms and suites, and
(4) an 18-hole championship golf course on the Golf Course
Land occupying approximately 142 acres of the Project Site.
"Phase I Opening Date" means the date on which all or any portion
of the Phase I Project is open for business, and the opening conditions set
forth in the Disbursement Agreement have been satisfied.
"Phase I Outside Completion Deadline" means December 31, 2005 (as
such date may be extended for the same number of days as the outside Phase
I completion date is extended under Section 6.3.2 of the Disbursement
Agreement, as in effect on the date of this Indenture, due to the
occurrence of any force majeure event as defined therein on the date of
this Indenture).
"Phase I Plans and Specifications" has the meaning given that term
in the Disbursement Agreement.
"Phase I Project" means Wynn Las Vegas hotel and casino resort, a
large scale luxury hotel and destination casino resort, with related
parking structure and golf course facilities currently under development on
the Project Site, all as more particularly described in Exhibit Q-1 to the
Disbursement Agreement, as in effect on the date of this Indenture.
"Phase I Project Budget" means the Phase I Project Budget attached
as Exhibit F-1 to the Disbursement Agreement.
"Phase II Completion" has the meaning given that term in the
Disbursement Agreement.
"Phase II Completion Date" means the date on which Phase II
Completion occurs.
"Phase II Final Completion" has the meaning given that term in the
Disbursement Agreement.
"Phase II Final Completion Date" means the date on which Phase II
Final Completion occurs.
"Phase II Land" means the approximately 20-acre portion of the
Project Site designated as the Phase II Land in the Collateral Documents,
together with all improvements thereon and all rights appurtenant thereto
on which the Phase II Project shall be designed, developed, constructed and
operated.
"Phase II Opening Date" means the date on which all or any portion
of the Phase II Project is open for business, and the opening conditions
set forth in the Disbursement Agreement have been satisfied.
"Phase II Outside Completion Deadline" means, if the Phase II
Project Budget and the Phase II Plans and Specifications are approved in
accordance with the Disbursement Agreement, March 31, 2008, as that date
may be extended from time to time pursuant to the Disbursement Agreement.
"Phase II Plans and Specifications" has the meaning given that
term in the Disbursement Agreement.
"Phase II Project" means the hotel tower, casino facility and
retail and convention space to be constructed on the Phase II Land that
shall be part of Wynn Las Vegas and tentatively called "Encore at Wynn Las
Vegas," as more particularly described in Exhibit Q-2 to the Disbursement
Agreement.
"Phase II Project Budget" means the Phase II Project Budget to be
approved in accordance with the Disbursement Agreement and which is
attached as Exhibit F-4 to the Disbursement Agreement.
"Point of Diversion" means, with respect to any water permit, the
location designated under such water permit where a well can be located for
the draw of water under such water permit.
"Presumed Tax Liability" means, for any Person that is not a Pass
Through Entity for any period, an amount equal to the product of (a) the
Taxable Income allocated or attributable to such Person (directly or
through one or more tiers of Pass Through Entities) (net of taxable losses
allocated to such Person with respect to Wynn Las Vegas, the Completion
Guarantor or any of the Restricted Subsidiaries that (i) are, or were
previously, deductible by such Person and (ii) have not previously reduced
Taxable Income), and (b) the Presumed Tax Rate.
"Presumed Tax Rate" with respect to any Person for any period
means the highest effective combined United States federal, state and local
income tax rate applicable during such period to a corporation organized
under the laws of the State of Nevada, taxable at the highest marginal
United States federal income tax rate and the highest marginal state and
local income tax rates to which such Person is subject (after giving effect
to the United States federal income tax deduction for such state and local
income taxes, taking into account the effects of the alternative minimum
tax, such effects being calculated on the assumption that such Person's
only taxable income is the income allocated or attributable to such Person
for such period (directly or through one or more tiers of Pass Through
Entities) with respect to its equity interest in Wynn Las Vegas, the
Completion Guarantor or any of the Restricted Subsidiaries that is a Pass
Through Entity). In determining the Presumed Tax Rate, the character of the
items of income and gain comprising Taxable Income (e.g. ordinary income or
long term capital gain) shall be taken into account.
"Primary Note Collateral" means all Collateral, together with the
proceeds and products thereof (including, without limitation, the proceeds
of Asset Sales).
"Principal" means Stephen A. Wynn.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(1) hereof to be placed on all Notes issued under this Indenture
except where otherwise permitted by the provisions of this Indenture.
"Project Assets" means, with respect to the Projects at any time,
all of the assets then in use related to either the Phase I Project or the
Phase II Project including any real estate assets, any buildings or
improvements thereon, and all equipment, furnishings and fixtures, but
excluding any obsolete personal property determined by Wynn Capital's Board
of Directors to be no longer useful or necessary to the operations or
support of either the Phase I Project or the Phase II Project.
"Project Lease and Easement Agreements" means:
(1) the Golf Course Lease,
(2) the Dealership Lease Agreement,
(3) the Shuttle Easement Agreement, and
(4) the Access Easement Agreement.
in each case, as amended, modified or otherwise supplemented from time to
time in any manner that is not in contravention of Section 4.25 hereof.
"Project Related Indebtedness" means Indebtedness for borrowed
money incurred by Wynn Resorts, the proceeds of which are contributed,
directly or indirectly, as common equity capital to Wynn Las Vegas and its
Restricted Subsidiaries, so long as neither Issuer nor any Restricted
Subsidiary:
(1) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute
Indebtedness) as to such Indebtedness,
(2) is directly or indirectly liable as a guarantor or
otherwise as to such Indebtedness, or
(3) constitutes the lender of such Indebtedness.
"Project Site" means the approximately 235-acre site upon which
the Projects shall be located, together with all easements, licenses and
other rights running for the benefit of Wynn Las Vegas or any of the
Restricted Subsidiaries and/or appurtenant thereto, and all as more
particularly described in Exhibit G hereto.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Qualifying Project" means the gaming and/or hotel projects of
Wynn Resorts and its Subsidiaries which are operating or for which the
financing for the development, construction and opening thereof has been
obtained. For purposes of this definition, each of the Phase I Project, the
Phase II Project and the Macau Project shall count as separate projects.
"Qualified Equity Offering" means a bona fide offering of common
stock or preferred stock (other than Disqualified Stock) of Wynn Resorts,
or of securities convertible into, or exchangeable for, such common stock
or preferred stock (other than Disqualified Stock) of Wynn Resorts, which
results in gross proceeds to Wynn Resorts of at least $50.0 million, to the
extent that such gross receipts are contributed as a cash common equity
contribution to Wynn Las Vegas.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date of this Indenture, by and among, the
Issuers, the Guarantors and the Initial Purchasers, as such agreement may
be amended, modified or supplemented from time to time and, with respect to
Additional Notes, one or more registration rights agreements by and among
the Issuers, the Guarantors and the other parties thereto, as such
agreement(s) may be amended, modified or supplemented from time to time,
relating to rights given by the Issuers and the Guarantors to the
purchasers of Additional Notes to register such Additional Notes under the
Securities Act.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global
Note or Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent Global Note
in the form of Exhibit A-1 hereto bearing the Global Note Legend and the
Private Placement Legend and deposited with or on behalf of and registered
in the name of the Depositary or its nominee, issued in a denomination
equal to the outstanding principal amount of the Regulation S Temporary
Global Note upon expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary Global Note
in the form of Exhibit A-2 hereto deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Notes
initially sold in reliance on Rule 903 of Regulation S.
"Related Party" means:
(1) any controlling stockholder, 80% (or more) owned
Subsidiary, or immediate family member (in the case of an individual)
of any Principal; or
(2) any trust, corporation, partnership, limited liability
company or other entity, the beneficiaries, stockholders, partners,
members, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of the Principal and/or such
other Persons referred to in the immediately preceding clause (1) or
this clause (2).
"Released Assets" means any item of Collateral for which
conditions to its release are expressly set forth in this Indenture or the
Collateral Documents (it being understood that conditions incorporated by
reference to the Credit Agreement or other documents shall be considered
expressly set forth for this purpose), and as to which such conditions have
been met, including, subject to meeting the applicable conditions, the Golf
Course Land, the funds securing the Completion Guarantee (initially, $50.0
million) and the funds deposited in the Liquidity Reserve Account
(initially, $30.0 million). Any such item of Collateral shall cease to be a
Released Asset in the event, and to the extent, that Wynn Las Vegas or any
of the Restricted Subsidiaries is required to grant a security interest
therein in favor of the Trustee to secure the Notes or a Note Guarantee
pursuant to Section 10.03 hereof.
"Responsible Officer," when used with respect to the Trustee,
means any officer within the corporate trust department of the Trustee
located at the Corporate Trust Office of the Trustee (or any successor
group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day distribution compliance
period as defined in Regulation S.
"Restricted Subsidiary" means any Subsidiary of Wynn Las Vegas
that is not an Unrestricted Subsidiary.
"Retail Facility" means an up to approximately 60,000 square foot
retail facility adjoining the Projects.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Secured Account" means the secured 2014 Notes Proceeds Account,
as such term is defined in the Disbursement Agreement and which is
established pursuant to the Disbursement Collateral Account Agreement, into
which the net proceeds of the Notes are required to be deposited on the
date of this Indenture.
"Second Mortgage Notes" means the 12% Second Mortgage Notes due 2010 of
the Issuers issued pursuant to an indenture, dated as of October 30, 2002.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreements" means:
(1) the Pledge and Security Agreement, dated as of the date
of this Indenture, among the Issuers, the Restricted Subsidiaries,
Wynn Resorts Holdings and the Collateral Agent, and
(2) any other guarantee and collateral agreement entered into
by either Issuer or any Restricted Subsidiary from time to time in
accordance with the provisions of this Indenture,
in each case, as amended, modified or otherwise supplemented from time to
time in accordance with their respective terms and with this Indenture and
the other Collateral Documents.
"S&P" means Standard & Poor's Rating Services, a division of the
McGraw Hill Companies, Inc., or any successor to its statistical rating
business, except that any reference to a particular rating by S&P shall be
deemed to be a reference to the corresponding rating by any such successor.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Shuttle Easement Agreement" means the Easement Agreement, dated
as of the date of this Indenture, between Wynn Golf and Wynn Las Vegas, as
amended, modified or otherwise supplemented from time to time in any manner
that is not in contravention of Section 4.25 hereof.
"Significant Restricted Subsidiary" means any Restricted
Subsidiary of Wynn Las Vegas if it (a) contributes at least 10% of Wynn Las
Vegas' and its Restricted Subsidiaries' total consolidated income from
continuing operations before income taxes, extraordinary items, or (b) owns
at least 10% of Wynn Las Vegas' and its Restricted Subsidiaries' total
assets on a consolidated basis.
"Solvent" means, when used with respect to any Person, as of any
date of determination:
(1) the amount of the "present fair saleable value" of the
assets of such Person shall, as of such date, exceeds the amount of
all "liabilities of such Person, contingent or otherwise," as of such
date, as such quoted terms are determined in accordance with
applicable federal and state laws governing determinations of the
insolvency of debtors,
(2) such Person does not reasonably expect that such person
may be unable to pay the liability of such Person on its debts as such
debts become absolute and matured,
(3) such Person shall not have, as of such date, an
unreasonably small amount of capital with which to conduct its
business,
(4) such Person shall be able to pay its undisputed debts
generally as they mature, and
(5) such Person is not insolvent within the meaning of any
applicable requirements of law.
In addition, for purposes of this definition, (a) "debt" means
liability on a "claim," and (b) "claim" means any (i) right to payment,
whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured or (ii) right to an equitable remedy
for breach of performance if such breach gives rise to a right to payment,
whether or not such right to an equitable remedy is reduced to judgment,
fixed, contingent, matured or unmatured, disputed, undisputed, secured or
unsecured.
"Stated Maturity" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which the
payment of interest or principal was scheduled to be paid in the
documentation governing such Indebtedness as of the date of this Indenture,
and shall not include any contingent obligations to repay, redeem or
repurchase any such interest or principal prior to the date originally
scheduled for the payment thereof.
"Stockholders Agreement" means that certain Stockholders
Agreement, dated as of April 11, 2002, by and among Stephen A. Wynn, Baron
Asset Fund and Aruze USA, as in effect on the date of this Indenture.
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association or other business entity of
which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency
and after giving effect to any voting agreement or stockholders'
agreement that effectively transfers voting power) to vote in the
election of directors, managers or trustees of the corporation,
association or other business entity is at the time owned or
controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person (or a combination thereof);
(2) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of
such Person or (b) the only general partners of which are that Person
or one or more Subsidiaries of that Person (or any combination
thereof); or
(3) any limited liability company (a) the manager or managing
member of which is such Person or a Subsidiary of such Person or (b)
the only members of which are that Person or one or more Subsidiaries
of that Person (or any combination thereof).
"Tax Amount" means, with respect to any period, (1) with respect
to any of Wynn Las Vegas, the Completion Guarantor or any of the Restricted
Subsidiaries that is a Pass Through Entity and in the case of any direct or
indirect Subsidiary of any of Wynn Las Vegas, the Completion Guarantor or
any of the Restricted Subsidiaries that is a Pass Through Entity, the
Presumed Tax Liability of such direct or indirect Subsidiary, and (2) with
respect to any of Wynn Las Vegas, the Completion Guarantor or any of their
respective subsidiaries that are Consolidated Members, the aggregate United
States federal income tax liability such Persons would owe for such period
if each was a corporation filing United States federal income tax returns
on a stand alone basis at all times during its existence and, if any of the
Consolidated Members files a consolidated or combined state income tax
return such that it is not paying its own state income taxes, then Tax
Amount shall also include the aggregate state income tax liability such
Consolidated Members would have paid for such period if each was a
corporation filing state income tax returns on a stand alone basis at all
times during its existence.
"Tax Indemnification Agreement" means the Tax Indemnification
Agreement, dated as of September 24, 2002, among Wynn Resorts, Valvino
Lamore, Stephen A. Wynn, Aruze USA, Baron Asset Fund, a Massachusetts
business trust, on behalf of the Baron Asset Fund Series, Baron Asset Fund,
a Massachusetts business trust, on behalf of the Baron Growth Fund Series,
and Kenneth R. Wynn Family Trust dated February 20, 1985.
"Taxable Income" means, with respect to any Person for any period,
the taxable income, if any, of such Person for such period for United
States federal income tax purposes as a result of such Persons equity
ownership of Wynn Las Vegas, the Completion Guarantor or any of the
Restrictive Subsidiaries that are Pass Through Entities for such period, so
long as all items of income, gain, loss or deduction required to be stated
separately pursuant to Section 703(a)(1) of the Code shall be included in
taxable income or loss.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Trustee" means the party named as such in the preamble to this
Indenture until a successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor serving
hereunder.
"Unrestricted Definitive Note" means a Definitive Note that does
not bear and is not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a Global Note that does not bear
and is not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means Wynn Completion Guarantor, LLC and
any other Subsidiary of Wynn Las Vegas, other than Wynn Capital, that is
designated by the Board of Directors of Wynn Capital as an Unrestricted
Subsidiary pursuant to a resolution of the Board of Directors (and any
Subsidiary of each such Unrestricted Subsidiary), but only to the extent
that such Subsidiary of Wynn Las Vegas (other than the Completion
Guarantor):
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or
understanding with either Issuer, any Restricted Subsidiary or any
Guarantor unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to such Person than
those that (a) might be obtained at the time from Persons who are not
Affiliates of such Person, (b) are Permitted Investments or
transactions permitted as Restricted Payments under Section 4.07
hereof, or (c) are Affiliate Transactions permitted under Section 4.11
hereof;
(3) is a Person with respect to which neither Issuer, nor any
Restricted Subsidiary nor any Guarantor has any direct or indirect
obligation (a) to subscribe for additional Equity Interests or (b) to
maintain or preserve such Person's financial condition or to cause
such Person to achieve any specified levels of operating results;
(4) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of either Issuer or any
Restricted Subsidiary, or any Guarantor; and
(5) has at least one director on its Board of Directors that
is not a director or executive officer of either Issuer, any
Restricted Subsidiary or any Guarantor and has at least one executive
officer that is not a director or executive officer of either Issuer,
any Restricted Subsidiary or any Guarantor.
Any designation of a Subsidiary of Wynn Las Vegas as an
Unrestricted Subsidiary shall be evidenced to the Trustee by filing with
the Trustee a certified copy of the resolution of Wynn Capital's Board of
Directors giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the preceding conditions and
was permitted by Section 4.07 hereof. If, at any time, any Unrestricted
Subsidiary of Wynn Las Vegas would fail to meet the preceding requirements
as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary of Wynn Las Vegas for purposes of this Indenture
and any Indebtedness of such Subsidiary shall be deemed to be incurred by a
Restricted Subsidiary of Wynn Las Vegas as of such date and, if such
Indebtedness is not permitted to be incurred as of such date under Section
4.09 hereof, Wynn Las Vegas shall be in default of such covenant. The Board
of Directors of Wynn Capital may at any time designate any Unrestricted
Subsidiary of Wynn Las Vegas to be a Restricted Subsidiary. Such
designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if (1) such
Indebtedness is permitted under Section 4.09 hereof calculated on a pro
forma basis as if such designation had occurred at the beginning of the
four-quarter reference period and (2) no Default or Event of Default would
be in existence following such designation.
"U.S. Person" means a U.S. Person as defined in Rule 902(k)
promulgated under the Securities Act.
"Valvino Lamore" means Valvino Lamore, LLC, a Nevada limited
liability company.
"Voting Stock" of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election
of the Board of Directors of such Person.
"Water Rights" means: (1) with respect to any Person, all of such
Person's right, title and interest in and to any water stock, permits or
entitlements and any other water rights related to or appurtenant to
property owned or leased by such Person, and (2) with respect to any
property, any water stock, permits or entitlements and any other water
rights related to or appurtenant to such property.
"Water Show Entertainment Production Agreement" means
collectively, (1) that certain Production Services Agreement, dated as of
October 31, 2002, between Wynn Las Vegas and Productions du Dragon, S.A.
("Dragon") and (2) that certain License Agreement, dated as of October 31,
2002, between Wynn Las Vegas and Calitri Services and Licensing Limited
Liability Company, as amended, modified or otherwise supplemented from time
to time in any manner not in contravention of Section 4.25 hereof.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including payment at
final maturity, in respect thereof, by (b) the number of years
(calculated to the nearest one-twelfth) that shall elapse between such
date and the making of such payment; by
(2) the then outstanding principal amount of such
Indebtedness.
"Wholly Owned Restricted Subsidiary" of any specified Person means
a Restricted Subsidiary of such Person all of the outstanding Capital Stock
or other ownership interests of which (other than directors' qualifying
shares) shall at the time be owned by such Person or by one or more Wholly
Owned Restricted Subsidiaries of such Person.
"Wholly Owned Subsidiary" of any specified Person means a
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person or by one or more Wholly Owned
Subsidiaries of such Person.
"Wynn Capital" means Wynn Las Vegas Capital Corp., a Nevada
corporation.
"Wynn Design" means Wynn Design & Development, LLC, a Nevada
limited liability company.
"Wynn Design Agreement" means the Amended and Restated Project
Administrative Services Agreement, dated as of the date of this Indenture,
between Wynn Las Vegas and Wynn Design, as amended, modified or otherwise
supplemented from time to time in any manner that is not in contravention
of Section 4.25 hereof.
"Wynn Golf" means Wynn Golf, LLC, a Nevada limited liability company.
"Wynn Home Site Land" means an approximately two acre tract of
land located on the Golf Course Land where a personal residence for Stephen
A. Wynn may be built, after the release of the Trustee's Liens (for the
benefit of the Holders) thereon in accordance with Section 10.03(e).
"Wynn IP Agreement" means the Intellectual Property License
Agreement, dated as of the date of this Indenture, among Wynn Resorts, Wynn
Resorts Holdings and Wynn Las Vegas.
"Wynn Las Vegas" means Wynn Las Vegas, LLC, a Nevada limited
liability company.
"Wynn Resorts" means Wynn Resorts, Limited, a Nevada corporation.
"Wynn Resorts Holdings" means Wynn Resorts Holdings, LLC, a Nevada
limited liability company.
"Wynn Show Performers" means Wynn Show Performers, LLC, a Nevada
limited liability company.
Section 1.02 Other Definitions.
Defined in
Term Section
---- -------
"Affiliate Transaction".............................. 4.11
"Asset Sale Offer"................................... 4.10
"Asset Sale Offer Amount"............................ 4.10
"Asset Sale Offer Repayment Amount".................. 4.10
"Authentication Order"............................... 2.02
"Beneficiary"........................................ 13.01
"Change of Control Offer"............................ 4.15
"Change of Control Payment".......................... 4.15
"Change of Control Payment Date"..................... 4.15
"Covenant Defeasance"................................ 8.03
"DTC"................................................ 2.03
"Event of Default"................................... 6.01
"Event of Loss Offer"................................ 4.16
"Event of Loss Offer Amount"......................... 4.16
"Event of Loss Offer Repayment Amount"............... 4.16
"Excess Loss Proceeds"............................... 4.16
"Excess Net Proceeds"................................ 4.10
"Excess Proceeds".................................... 4.10
"Excess Proceeds Offer".............................. 3.10
"incur".............................................. 4.09
"Legal Defeasance"................................... 8.02
"Note Obligations"................................... 13.01
"Offer Amount"....................................... 3.10
"Offer Period"....................................... 3.10
"Paying Agent"....................................... 2.03
"Payment Default".................................... 6.01
"Permitted Debt"..................................... 4.09
"Permitted Dispositions"............................. 1.01
"Phase III Project".................................. 10.03
"Purchase Date"...................................... 3.10
"Reference Period"................................... 4.09
"Refinancing"........................................ 10.03
"Registrar".......................................... 2.03
"Restricted Payments"................................ 4.07
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"Commission" means the SEC;
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes and the Note Guarantees means the Issuers
and the Guarantors, respectively, and any successor obligor upon the Notes
and the Note Guarantees, respectively.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule
under the TIA have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and transactions;
(7) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement of successor
sections or rules adopted by the SEC from time to time;
(8) references to any statute, law, rule or regulation shall
be deemed to refer to the same as from time to time amended and in
effect and to any successor statute, law, rule or regulation;
(9) references to any contract, agreement or instrument shall
mean the same as amended, modified, supplemented or amended and
restated from time to time, in each case, in accordance with any
applicable restrictions contained therein, in this Indenture or in any
Collateral Document, as the case may be; and
(10) the consummation by the Issuers and the Restricted
Subsidiaries on the date of this Indenture of the transactions
described in the Issuers' Offering Memorandum, dated as of November
22, 2004, relating to the offering of the Initial Notes under the
captions "Proposed Financing Transactions" and "Use of Proceeds,"
shall be deemed to occur concurrently.
ARTICLE 2.
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibits A-1 and A-2 hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange
rule or usage. Each Note shall be dated the date of its authentication. The
Notes shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of this Indenture and the Issuers,
the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with
the express provisions of this Indenture, the provisions of this Indenture
shall govern and be controlling.
(b) Global Notes. Notes issued in global form shall be substantially
in the form of Exhibits A-1 and A-2 attached hereto (including the Global Note
Legend thereon and the "Schedule of Exchanges of Interests in the Global Note"
attached thereto), which Notes shall be deposited on behalf of the purchasers
of the Notes represented thereby with the Trustee, as Custodian for the
Depositary, and registered in the name of the Depositary or the nominee of the
Depositary. Notes issued in definitive form shall also be substantially in the
form of Exhibit A-1 attached hereto (but without the Global Note Legend thereon
and without the "Schedule of Exchanges of Interests in the Global Note"
attached thereto). Any Notes issued in global form and definitive form shall be
duly executed by the Issuers and authenticated by the Trustee as hereinafter
provided. Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it represents the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06 hereof.
(c) Temporary Global Notes. Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of the Regulation S
Temporary Global Note substantially in the form of Exhibit A-2 attached hereto,
which shall be deposited on behalf of the purchasers of the Notes represented
thereby with the Trustee, as custodian for the Depositary, and registered in
the name of the Depositary or the nominee of the Depositary for the accounts of
designated agents holding on behalf of Euroclear or Clearstream, duly executed
by the Issuers and authenticated by the Trustee as hereinafter provided. The
Restricted Period shall be terminated upon the receipt by the Trustee of:
(1) a written certificate from the Depositary, together
with copies of certificates from Euroclear and Clearstream
certifying that they have received certification of non-United
States beneficial ownership of 100% of the aggregate principal
amount of the Regulation S Temporary Global Note (except to the
extent of any beneficial owners thereof who acquired an interest
therein during the Restricted Period pursuant to another exemption
from registration under the Securities Act and who shall take
delivery of a beneficial ownership interest in a 144A Global Note
or an IAI Global Note bearing a Private Placement Legend, all as
contemplated by Section 2.06(b) hereof); and
(2) an Officers' Certificate from each of the Issuers.
Following the termination of the Restricted Period, beneficial
interests in the Regulation S Temporary Global Note shall be exchanged for
beneficial interests in the Regulation S Permanent Global Note pursuant to
the Applicable Procedures. Simultaneously with the authentication of the
Regulation S Permanent Global Note, the Trustee shall cancel the Regulation
S Temporary Global Note. The aggregate principal amount of the Regulation S
Temporary Global Note and the Regulation S Permanent Global Note may from
time to time be increased or decreased by adjustments made on the records
of the Trustee and the Depositary or its nominee, as the case may be, in
connection with transfers of interest as hereinafter provided.
(3) Euroclear and Clearstream Procedures Applicable. The
provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the
"General Terms and Conditions of Clearstream Banking" and
"Customer Handbook" of Clearstream shall be applicable to
transfers of beneficial interests in the Regulation S Temporary
Global Note and the Regulation S Permanent Global Note that are
held by Participants through Euroclear or Clearstream.
Section 2.02 Execution and Authentication.
A Designated Officer on behalf of each of Wynn Las Vegas and Wynn
Capital must sign the Notes for the Issuers by manual or facsimile
signature.
If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that
the Note has been authenticated under this Indenture.
The Trustee shall, upon receipt of a written order of the Issuers
signed by a Designated Officer of each of Wynn Las Vegas and Wynn Capital (an
"Authentication Order"), authenticate Notes for original issue that may be
validly issued under this Indenture, including any Additional Notes (including
Notes to be issued in substitution for outstanding Notes to reflect any name
change of either Issuer, by succession permitted hereunder or otherwise).
The aggregate principal amount of Notes outstanding at any time may
not exceed aggregate principal amount of Notes authorized for issuance by the
Issuers pursuant to one or more Authentication Orders, except as provided in
Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Issuers to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Issuers.
Section 2.03 Registrar and Paying Agent.
The Issuers shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and
exchange. The Issuers may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and
the term "Paying Agent" includes any additional paying agent. The Issuers may
change any Paying Agent or Registrar without notice to any Holder. The Issuers
shall notify the Trustee in writing of the name and address of any Agent not a
party to this Indenture. If the Issuers fail to appoint or maintain another
entity as Registrar or Paying Agent, the Trustee shall act as such. Either or
both of the Issuers or any of their Subsidiaries may act as Paying Agent or
Registrar.
The Issuers initially appoint The Depository Trust Company ("DTC")
to act as Depositary with respect to the Global Notes.
The Issuers initially appoint the Trustee to act as the Registrar
and Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Issuers shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, or interest on the Notes, and
shall notify the Trustee of any default by the Issuers in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Issuers at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Issuers or a
Subsidiary thereof) shall have no further liability for the money. If either
Issuer or a Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Issuers, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Issuers shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Issuers shall otherwise comply with TIA ss. 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes shall be exchanged
by the Issuers for Definitive Notes if:
(1) Wynn Las Vegas delivers to the Trustee written notice
from the Depositary that it is unwilling or unable to continue to act
as Depositary or that it is no longer a clearing agency registered
under the Exchange Act and, in either case, a successor Depositary is
not appointed by Wynn Las Vegas within 120 days after the date of such
notice from the Depositary;
(2) the Issuers in their sole discretion determine that the
Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and delivers a written notice to such effect to the
Trustee; provided that in no event shall the Regulation S Temporary
Global Note be exchanged by the Issuers for Definitive Notes prior to
(A) the expiration of the Restricted Period and (B) the receipt by the
Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act; or
(3) following the occurrence and during the continuation of a
Default or Event of Default, any Person having a beneficial interest
in a Global Note requests that the Global Notes should be exchanged
for Definitive Notes and delivers a written notice to such effect to
the Trustee.
Upon the occurrence of either of the preceding events in (1) or
(2) above, Definitive Notes shall be issued in such names as the Depositary
shall instruct the Trustee. Global Notes also may be exchanged or replaced,
in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every
Note authenticated and delivered in exchange for, or in lieu of, a Global
Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07
or 2.10 hereof, shall be authenticated and delivered in the form of, and
shall be, a Global Note. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.06(a). However, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
The transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with
either subparagraph (1) or (2) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend;
provided, however, that prior to the expiration of the Restricted
Period, transfers of beneficial interests in the Regulation S
Temporary Global Note may not be made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial
Purchasers). Beneficial interests in any Unrestricted Global Note may
be transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders
or instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(1) above,
the transferor of such beneficial interest must deliver to the
Registrar either:
(A) both:
(i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be
transferred or exchanged; and
(ii) instructions given in accordance with the
Applicable Procedures containing information regarding the
Participant account to be credited with such increase; or
(B) both:
(i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be
issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged; and
(ii) instructions given by the Depositary to the
Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect
the transfer or exchange referred to in (1) above;
provided that in no event shall Definitive Notes be issued
upon the transfer or exchange of beneficial interests in the
Regulation S Temporary Global Note prior to (A) the
expiration of the Restricted Period and (B) the receipt by
the Registrar of any certificates required pursuant to Rule
903 under the Securities Act.;
Upon consummation of an Exchange Offer by the Issuers and the Guarantors in
accordance with Section 2.06(f) hereof, the requirements of this Section
2.06(b)(2) shall be deemed to have been satisfied upon receipt by the
Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted
Global Notes. Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in this
Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global
Note(s) pursuant to Section 2.06(h) hereof.
(3) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may
be transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(2) above and the
Registrar receives the following:
(A) if the transferee shall take delivery in the form
of a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item (1) thereof;
(B) if the transferee shall take delivery in the form
of a beneficial interest in the Regulation S Temporary Global
Note or the Regulation S Permanent Global Note, then the
transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item (2) thereof;
and
(C) if the transferee shall take delivery in the form
of a beneficial interest in the IAI Global Note, then the
transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if
applicable.
(4) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in an Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may
be exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(2) above and:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee,
in the case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (i) a Broker-Dealer, (ii) a
Person participating in the distribution of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in
Rule 144) of either of the Issuers;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in an
Unrestricted Global Note, a certificate from such
holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(ii) if the holder of such beneficial interest
in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take
delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note, a certificate from
such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph
(D), if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that
such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with
the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or
(D) above at a time when an Unrestricted Global Note has not yet been
issued, the Issuers shall issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the aggregate principal amount of beneficial
interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the
form of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(1) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements
of the Securities Act in accordance with Rule 144, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B)
through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3) thereof, if
applicable;
(F) if such beneficial interest is being transferred
to the Issuers or any of their Subsidiaries, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Issuers shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in
the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this
Section 2.06(c) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are
so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)(1)
shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(2) Beneficial Interests in Regulation S Temporary Global
Note to Definitive Notes. Notwithstanding Sections 2.06(c)(1)(A) and
(C) hereof, a beneficial interest in the Regulation S Temporary Global
Note may not be exchanged for a Definitive Note or transferred to a
Person who takes delivery thereof in the form of a Definitive Note
prior to (A) the expiration of the Restricted Period and (B) the
receipt by the Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act, except in the case of a
transfer pursuant to an exemption from the registration requirements
of the Securities Act other than Rule 903 or Rule 904.
(3) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal
that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or
(iii) a Person who is an affiliate (as defined in Rule 144)
of the Issuers;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such
beneficial interest for an Unrestricted Definitive
Note, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item
(1)(b) thereof; or
(ii) if the holder of such beneficial interest
in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take
delivery thereof in the form of an Unrestricted
Definitive Note, a certificate from such holder in the
form of Exhibit B hereto, including the certifications
in item (4) thereof;
and, in each such case set forth in this subparagraph
(D), if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain
compliance with the Securities Act.
(4) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.06(b)(2) hereof, the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly
pursuant to Section 2.06(h) hereof, and the Issuers shall execute and
the Trustee shall authenticate and deliver to the Person designated in
the instructions a Definitive Note in the appropriate principal
amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(4) shall be registered in
such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest requests
through instructions to the Registrar from or through the Depositary
and the Participant or Indirect Participant. The Trustee shall deliver
such Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(4) shall not bear the
Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(1) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in
item (2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction
in accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements
of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required
by item (3) thereof, if applicable;
(F) if such Restricted Definitive Note is being
transferred to the Issuers or any of their Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note,
increase or cause to be increased the aggregate principal
amount of, in the case of clause (A) above, the
appropriate Restricted Global Note, in the case of clause
(B) above, the 144A Global Note, in the case of clause
(C) above, the Regulation S Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Restricted Definitive Note to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is
an affiliate (as defined in Rule 144) of either of the
Issuers;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(c)
thereof; or
(ii) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph
(D), if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(2), the Trustee shall cancel
the Definitive Notes and increase or cause to be increased the
aggregate principal amount of the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note
to a beneficial interest is effected pursuant to subparagraphs
(2)(B), (2)(D) or (3) above at a time when an Unrestricted Global
Note has not yet been issued, the Issuers shall issue and, upon
receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of
transfer or exchange, the requesting Holder must present or surrender to the
Registrar the Definitive Notes duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed by
such Holder or by its attorney, duly authorized in writing. In addition, the
requesting Holder must provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of
this Section 2.06(e).
(1) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the
form of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer shall be made pursuant to Rule
144A, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in
item (1) thereof;
(B) if the transfer shall be made pursuant to Rule 903
or Rule 904, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications
in item (2) thereof; and
(C) if the transfer shall be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required
by item (3) thereof, if applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is
an affiliate (as defined in Rule 144) of either of the
Issuers;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted Definitive
Notes proposes to exchange such Notes for an
Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(ii) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph
(D), if the Registrar so requests, an Opinion of
Counsel in form reasonably acceptable to the Registrar
to the effect that such exchange or transfer is in
compliance with the Securities Act and that the
restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Issuers shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate:
(1) one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes accepted for exchange in the
Exchange Offer by Persons that certify in the applicable Letters of
Transmittal that (A) they are not Broker-Dealers, (B) they are not
participating in a distribution of the Exchange Notes and (C) they are
not affiliates (as defined in Rule 144) of the Issuers and
(2) Unrestricted Definitive Notes in an aggregate principal
amount equal to the principal amount of the Restricted Definitive
Notes accepted for exchange in the Exchange Offer by Persons that
certify in the applicable Letters of Transmittal that (A) they are not
Broker-Dealers, (B) they are not participating in a distribution of
the Exchange Notes and (C) they are not affiliates (as defined in Rule
144) of the Issuers.
Concurrently with the issuance of such Notes, the Trustee shall
cause the aggregate principal amount of the applicable Restricted Global
Notes to be reduced accordingly, and the Issuers shall execute and the
Trustee shall authenticate and deliver to the Persons designated by the
Holders of Definitive Notes so accepted Unrestricted Definitive Notes in
the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below,
each Global Note and each Definitive Note (and all Notes
issued in exchange therefor or substitution thereof) shall
bear the legend in substantially the following form:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT
IS NOT A U.S. PERSON, IS NOT ACQUIRING THIS NOTE FOR THE ACCOUNT OR BENEFIT
OF A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3)
OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "IAI"), (2) AGREES
THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k)
(TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) UNDER THE SECURITIES
ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF
THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A PERSON WHOM THE
HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE),
(E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
THE REGISTRATION OF TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE) AND AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE OR ANY INTEREST HEREIN
WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF
SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES
ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING
RESTRICTIONS."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(4),
(c)(3), (c)(4), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this
Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement
Legend.
(2) Global Note Legend. Each Global Note shall bear a legend
in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a)
OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE ISSUERS.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK,
NEW YORK) ("DTC"), TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN."
(3) Regulation S Temporary Global Note Legend. The Regulation
S Temporary Global Note shall bear a Legend in substantially the
following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES,
ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER
NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL
BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to
or retained and canceled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who shall take delivery
thereof in the form of a beneficial interest in another Global Note or for
Definitive Notes, the principal amount of Notes represented by such Global Note
shall be reduced accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such reduction; and if the beneficial interest is being exchanged for
or transferred to a Person who shall take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect
such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the
Issuers shall execute and the Trustee shall authenticate Global Notes
and Definitive Notes upon receipt of an Authentication Order in
accordance with Section 2.02 or at the Registrar's request.
(2) No service charge shall be made to a Holder of a Global
Note or to a Holder of a Definitive Note for any registration of
transfer or exchange, but the Issuers may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.06, 3.10, 4.10, 4.15, 4.16 and 9.05 hereof).
(3) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(4) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Issuers, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(5) Neither the Registrar nor the Issuers shall be required:
(A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening
of business 15 days before the day of any selection of Notes
for redemption under Section 3.02 hereof and ending at the
close of business on the day of selection;
(B) to register the transfer of or to exchange any
Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a Note
between a record date and the next succeeding interest
payment date.
(6) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Issuers may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes,
and none of the Trustee, any Agent or the Issuers shall be affected by
notice to the contrary.
(7) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(8) All certifications and certificates required to be
submitted to the Registrar pursuant to this Section 2.06 to effect a
registration of transfer or exchange may be submitted by facsimile.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Issuers
and the Trustee receives evidence to its satisfaction of the destruction,
loss or theft of any Note, the Issuers shall issue and the Trustee, upon
receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee's requirements are met. If required by the Trustee or the
Issuers, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Issuers to protect the
Issuers, the Trustee, any Agent and any authenticating agent from any loss
that any of them may suffer if a Note is replaced. The Issuers may charge
for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Issuers
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated
by the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by
the Trustee in accordance with the provisions hereof, and those described
in this Section 2.08 as not outstanding. Except as set forth in Section
2.09 hereof, a Note does not cease to be outstanding because the Issuers or
an Affiliate of either Issuer holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that
the replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases
to accrue.
If the Paying Agent (other than an Issuer, a Subsidiary of an
Issuer or an Affiliate of any thereof) holds, on a redemption date or
maturity date, money sufficient to pay Notes payable on that date, then on
and after that date such Notes shall be deemed to be no longer outstanding
and shall cease to accrue interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes
owned by the Issuers, or any of their Affiliates, shall be considered as
though not outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, waiver or
consent, only Notes that the Trustee knows are so owned shall be so
disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Issuers may prepare and the Trustee, upon receipt of an Authentication
Order, shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of certificated Notes but may have variations
that the Issuers consider appropriate for temporary Notes and as may be
reasonably acceptable to the Trustee. Without unreasonable delay, the
Issuers shall prepare and the Trustee shall authenticate Definitive Notes
in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
Section 2.11 Cancellation.
The Issuers at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation
and shall destroy canceled Notes in its customary manner (subject to the
record retention requirement of the Exchange Act). Certification of the
destruction of all canceled Notes shall be delivered to the Issuers. The
Issuers may not issue new Notes to replace Notes that they have paid or
that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Issuers default in a payment of interest on the Notes, they
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case, at the rate
provided in the Notes and in Section 4.01 hereof. The Issuers shall notify
the Trustee in writing of the amount of defaulted interest proposed to be
paid on each Note and the date of the proposed payment. The Issuers shall
fix or cause to be fixed each such special record date and payment date,
provided that no such special record date may be less than 10 days prior to
the related payment date for such defaulted interest. At least 15 days
before the special record date, the Issuers (or, upon the written request
of the Issuers, the Trustee in the name and at the expense of the Issuers)
shall mail or cause to be mailed to Holders a notice that states the
special record date, the related payment date and the amount of such
interest to be paid.
Section 2.13 Issuance of Additional Notes.
The Issuers will be entitled, upon delivery of an Officers'
Certificate, Opinion of Counsel and Authentication Order, subject to
compliance with Sections 2.02, 4.09 and 4.12 hereof, to issue Additional
Notes under this Indenture, which shall have identical terms as the Initial
Notes issued on the date of this Indenture, other than with respect to the
date of issuance, the initial date from which interest shall accrue on such
Additional Notes and issue price. Subject to Sections 4.09 and 4.12 hereof,
without the consent of any Holder of Notes, the Issuers will be entitled to
make any amendments to this Indenture, the Note Guarantees or any of the
Collateral Documents as they reasonably determine appropriate in good faith
to facilitate the issuance of such Additional Notes.
With respect to any Additional Notes, the Issuers will set forth
in a resolution of the Board of Directors of Wynn Capital and an Officers'
Certificate, a copy of each which shall be delivered to the Trustee, the
following information:
(a) the aggregate principal amount of such Additional Notes to be
authenticated and delivered pursuant to this Indenture; and
(b) which such Additional Notes shall be Notes issued in the form of
Restricted Global Notes or Restricted Definitive Notes, as the case may be,
or shall be Notes issued in the form of Unrestricted Global Notes or
Unrestricted Definitive Notes, as the case may be.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Issuers elect to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, they must furnish to the
Trustee, at least 30 days but not more than 60 days before a redemption
date, an Officers' Certificate setting forth:
(a) the clause of this Indenture pursuant to which the redemption
shall occur;
(b) the redemption date;
(c) the principal amount of Notes to be redeemed; and
(d) the redemption price.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in
an offer to purchase at any time, the Trustee shall select Notes for
redemption or purchase as follows:
(a) if the Notes are listed on any national securities exchange, in
compliance with the requirements of the principal national securities exchange
on which the Notes are listed; or
(b) if the Notes are not listed on any national securities exchange,
on a pro rata basis, by lot or by such method as the Trustee shall deem fair
and appropriate.
In the event of partial redemption or purchase by lot, the
particular Notes to be redeemed or purchased shall be selected, unless
otherwise provided herein, not less than 30 nor more than 60 days prior to
the redemption or purchase date by the Trustee from the outstanding Notes
not previously called for redemption or purchase.
The Trustee shall promptly notify the Issuers in writing of the
Notes selected for redemption or purchase and, in the case of any Note
selected for partial redemption or purchase, the principal amount thereof
to be redeemed or purchased. Notes and portions of Notes selected shall be
in amounts of $1,000 or whole multiples of $1,000; provided, however, that
if all of the Notes of a Holder are to be redeemed or purchased, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed or purchased. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for
redemption or purchase also apply to portions of Notes called for
redemption or purchase.
Section 3.03 Notice of Redemption.
Subject to the provisions of Section 3.10 hereof, at least 30 days
but not more than 60 days before a redemption date, the Issuers shall mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address, except
that redemption notices may be mailed more than 60 days prior to a
redemption date if the notice is issued in connection with a defeasance of
the Notes or a satisfaction and discharge of this Indenture pursuant to
Articles 8 or 12 of this Indenture.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal amount equal
to the unredeemed portion shall be issued upon cancellation of the original
Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Issuers default in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Issuers' request, the Trustee shall give the notice of
redemption in the Issuers' name and at their expense; provided, however,
that the Issuers have delivered to the Trustee, at least 45 days prior to
the redemption date, an Officers' Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such
notice as provided in the preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable
on the redemption date at the redemption price. A notice of redemption may
not be conditional. If mailed in the manner provided in Section 3.03
hereof, the notice of redemption shall be conclusively presumed to have
been given whether or not the Holder receives such notice.
Section 3.05 Deposit of Redemption or Purchase Price.
One Business Day prior to the redemption or purchase price date,
the Issuers shall deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption or purchase price of and accrued interest
and premium and Liquidated Damages, if any, on all Notes to be redeemed or
purchased on that date. The Trustee or the Paying Agent shall promptly
return to the Issuers any money deposited with the Trustee or the Paying
Agent by the Issuers in excess of the amounts necessary to pay the
redemption or purchase price of, and accrued interest and premium and
Liquidated Damages, if any, on, all Notes to be redeemed or purchased.
If the Issuers comply with the provisions of the preceding
paragraph, on and after the redemption or purchase date, interest shall
cease to accrue on the Notes or the portions of Notes called for redemption
or purchase. If a Note is redeemed or purchased on or after an interest
record date but on or prior to the related interest payment date, then any
accrued and unpaid interest shall be paid to the Person in whose name such
Note was registered at the close of business on such record date. If any
Note called for redemption or purchase is not so paid upon surrender for
redemption or purchase because of the failure of the Issuers to comply with
the preceding paragraph, interest shall be paid on the unpaid principal,
from the redemption or purchase date until such principal is paid, and to
the extent lawful on any interest not paid on such unpaid principal, in
each case at the rate provided in the Notes and in Section 4.01 hereof.
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part,
the Issuers shall issue and, upon receipt of an Authentication Order, the
Trustee shall authenticate for the Holder at the expense of the Issuers a
new Note equal in principal amount to the unredeemed or unpurchased portion
of the Note surrendered.
Section 3.07 Optional Redemption.
(a) At any time prior to December 1, 2007, the Issuers may, on any one
or more occasions, redeem up to 35% of the aggregate principal amount of Notes
issued under this Indenture at a redemption price of 106.625% of the principal
amount redeemed, plus accrued and unpaid interest and Liquidated Damages, if
any, thereon to the redemption date, with the net cash proceeds of one or more
Qualified Equity Offerings of Wynn Resorts that are contributed to Wynn Las
Vegas, so long as:
(1) at least 65% of the aggregate principal amount of Notes
issued under this Indenture remains outstanding immediately after the
occurrence of such redemption; and
(2) the redemption must occur within 60 days of the date of
the closing of such Qualified Equity Offering.
(b) Except pursuant to Section 3.07(a) and Section 3.09, the Notes are
not redeemable at the Issuers' option prior to December 1, 2009.
(c) On or after December 1, 2009, the Issuers may redeem all or a part
of the Notes upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of principal amount) set forth
below plus accrued and unpaid interest and Liquidated Damages, if any, on the
Notes redeemed, to the applicable redemption date, if redeemed during the
twelve-month period beginning on December 1 of the years indicated below:
Year Percentage
---- ----------
2009.................................................. 103.313%
2010.................................................. 102.208%
2011 ................................................. 101.104%
2012 and thereafter................................... 100.000%
(d) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
Section 3.08 Mandatory Redemption.
Other than as set forth in Section 3.09 below, the Issuers are not
required to make mandatory redemption or sinking fund payments with respect
to the Notes.
Section 3.09 Mandatory Disposition or Redemption Pursuant to Gaming Laws.
Notwithstanding any other provision hereof, if any Gaming
Authority requires a Holder or Beneficial Owner of Notes to be licensed,
qualified or found suitable under any applicable Gaming Law and the Holder
or Beneficial Owner (1) fails to apply for a license, qualification or
finding of suitability within 30 days after being requested to do so (or
such lesser period as required by the Gaming Authority), or (2) is notified
by a Gaming Authority that it shall not be licensed, qualified or found
suitable, the Issuers shall have the right, at their option, to:
(a) require the Holder or Beneficial Owner to dispose of its Notes
within 30 days (or such lesser period as required by the Gaming Authority)
following the earlier of:
(1) the termination of the period described above for the
Holder or Beneficial Owner to apply for a license, qualification or
finding of suitability; or
(2) the receipt of the notice from the Gaming Authority that
the Holder or Beneficial Owner shall not be licensed, qualified or
found suitable by the Gaming Authority; or
(b) redeem the Notes of the Holder or Beneficial Owner at a redemption
price equal to:
(1) the price required by applicable law or by order of any
Gaming Authority; or
(2) the lesser of:
(A) the principal amount of the Notes; and
(B) the price that the Holder or Beneficial Owner paid
for the Notes,
in each case, together with accrued and unpaid interest and Liquidated
Damages, if any, on the Notes to the earlier of (1) the date of redemption
or such earlier date as is required by the Gaming Authority or (2) the date
of the finding of unsuitability by the Gaming Authority, which may be less
than 30 days following the notice of redemption. The Issuers shall notify
the Trustee in writing of any redemption pursuant to this Section 3.09 as
soon as reasonably practicable.
Immediately upon a determination by a Gaming Authority that a
Holder or Beneficial Owner of Notes shall not be licensed, qualified or
found suitable, the Holder or Beneficial Owner shall not have any further
rights with respect to the Notes to:
(a) exercise, directly or indirectly, through any Person, any
right conferred by the Notes; or
(b) receive any interest or any other distribution or payment with
respect to the Notes, or any remuneration in any form from the Issuers for
services rendered or otherwise, except the redemption price of the Notes.
The Issuers are not required to pay or reimburse any Holder or
Beneficial Owner of Notes who is required to apply for such license,
qualification or finding of suitability for the costs relating thereto.
Those expenses shall be the obligation of the Holder or Beneficial Owner.
Section 3.10 Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 or 4.16 hereof, Wynn
Las Vegas is required to commence an Asset Sale Offer or an Event of Loss
Offer (each Asset Sale Offer or Event of Loss Offer is referred to in this
Section 3.10 as an "Excess Proceeds Offer"), it shall follow the procedures
specified below.
The Excess Proceeds Offer shall be made to all Holders and any
holders of Pari Passu Debt. The Excess Proceeds Offer shall remain open for
a period of at least 20 Business Days following its commencement and not
more than 30 Business Days, except to the extent that a longer period is
required by applicable law (the "Offer Period"). No later than three
Business Days after the termination of the Offer Period (the "Purchase
Date"), Wynn Las Vegas shall apply all Excess Proceeds (the "Offer Amount")
to the purchase of Notes and any such Pari Passu Debt to be purchased (on a
pro rata basis, if applicable) or, if less than the Offer Amount has been
tendered, all Notes and any such Pari Passu Debt tendered in response to
the Excess Proceeds Offer. Payment for any Notes so purchased shall be made
in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on
or before the related interest payment date, any accrued and unpaid
interest and Liquidated Damages, if any, shall be paid to the Person in
whose name a Note is registered at the close of business on such record
date, and no additional interest shall be payable to Holders who tender
Notes pursuant to the Excess Proceeds Offer.
Wynn Las Vegas shall provide the Trustee with notice of the Excess
Proceeds Offer at least 10 days (or such lesser time as the Trustee shall
permit) prior to its commencement. Upon the commencement of an Excess
Proceeds Offer, Wynn Las Vegas shall send, by first class mail, a notice to
each of the Holders, with a copy to the Trustee. The notice shall contain
all instructions and materials necessary to enable such Holders to tender
Notes pursuant to the Excess Proceeds Offer. The notice, which shall govern
the terms of the Excess Proceeds Offer, shall state:
(a) that the Excess Proceeds Offer is being made pursuant to this
Section 3.10 and Section 4.10 or Section 4.16 hereof, as appropriate, and the
length of time the Excess Proceeds Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue
to accrue interest;
(d) that, unless Wynn Las Vegas defaults in making such payment, any
Note accepted for payment pursuant to the Excess Proceeds Offer shall cease to
accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an
Excess Proceeds Offer may elect to have Notes purchased in integral multiples
of $1,000 only;
(f) that Holders electing to have a Note purchased pursuant to any
Excess Proceeds Offer shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" attached to the Notes completed,
or transfer by book-entry transfer, to Wynn Las Vegas, the Depositary, if
appointed by Wynn Las Vegas, or a Paying Agent at the address specified in the
notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if Wynn
Las Vegas, the Depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased; provided that,
with respect to Notes that have been tendered using the procedure for
book-entry transfer, any such notice of withdrawal shall specify the name
number of the account at The Depository Trust Company to be credited with the
withdrawn Notes and shall otherwise comply with the procedures of the
book-entry transfer facility;
(h) that, if the aggregate principal amount of Notes surrendered by
Holders and Pari Passu Debt surrendered by holders thereof exceeds the Offer
Amount, Wynn Las Vegas shall select the Notes and such Pari Passu Debt to be
purchased, on a pro rata basis, based on the principal amount of Notes and such
Pari Passu Debt surrendered (with such adjustments as may be deemed appropriate
by Wynn Las Vegas so that only Notes in denominations of $1,000, or integral
multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, Wynn Las Vegas shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent
necessary, the Offer Amount of Notes and, if applicable, Pari Passu Debt,
or portions thereof tendered pursuant to the Excess Proceeds Offer, or if
less than the Offer Amount has been tendered, all Notes and if applicable,
Pari Passu Debt, tendered, and shall deliver or caused to be delivered to
the Trustee the Notes properly accepted together with an Officers'
Certificate stating that such Notes and, if applicable, Pari Passu Debt, or
portions thereof were accepted for payment by Wynn Las Vegas in accordance
with the terms of this Section 3.10. Wynn Las Vegas, the Depositary or the
Paying Agent, as the case may be, shall promptly (but in any case not later
than five days after the Purchase Date) mail or deliver to each tendering
Holder an amount equal to the purchase price of the Notes tendered by such
Holder and accepted by Wynn Las Vegas for purchase, and Wynn Las Vegas
shall promptly issue a new Note, and the Trustee, upon written request from
Wynn Las Vegas shall authenticate and mail or deliver such new Note to such
Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or delivered
by Wynn Las Vegas to the Holder thereof. Wynn Las Vegas shall publicly
announce the results of the Excess Proceeds Offer on the Purchase Date.
Other than as specifically provided in this Section 3.10, any
purchase pursuant to this Section 3.10 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes.
The Issuers shall pay or cause to be paid the principal of,
premium, if any, and interest and Liquidated Damages, if any, on the Notes
on the dates and in the manner provided in the Notes. Principal, premium,
if any, and interest and Liquidated Damages, if any, shall be considered
paid on the date due if the Paying Agent, if other than the Issuers or a
Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by the Issuers in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and
interest then due. The Issuers shall pay all Liquidated Damages, if any, in
the same manner on the dates and in the amounts set forth in the
Registration Rights Agreement.
The Issuers shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest rate
on the Notes to the extent lawful; they shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Liquidated Damages (without regard to
any applicable grace period) at the same rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Issuers shall maintain in the Borough of Manhattan, the City
of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices
and demands to or upon the Issuers in respect of the Notes and this
Indenture may be served. The Issuers shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Issuers fail to maintain any such required
office or agency or fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served
at the Corporate Trust Office of the Trustee.
The Issuers may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any
manner relieve the Issuers of their obligation to maintain an office or
agency in the Borough of Manhattan, the City of New York for such purposes.
The Issuers shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such
other office or agency.
The Issuers hereby designate the Corporate Trust Office of the
Trustee as one such office or agency of the Issuers in accordance with
Section 2.03 hereof.
Section 4.03 Reports.
(a) Whether or not required by rules and regulations of the SEC, so
long as any Notes are outstanding, the Issuers shall furnish to the Holders of
Notes or cause the Trustee to furnish to Holders of Notes, within the time
periods specified in the SEC's rules and regulations:
(1) all quarterly and annual reports that would be required
to be filed with the SEC on Forms 10-Q and 10-K, including a
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" and, with respect to the annual report only, a
report on the annual financial statements by Wynn Las Vegas' and the
Restricted Subsidiaries' certified independent accountants; and
(2) all current reports that would be required to be filed
with the SEC on Form 8-K if the Issuers were required to file such
reports.
All such reports shall be prepared in all material respects in accordance
with all of the rules and regulations applicable to such reports. Each
annual report on Form 10-K shall include a report on Wynn Las Vegas' and
its Restricted Subsidiaries consolidated financial statements by Wynn Las
Vegas' certified independent accountants. In addition, following the
consummation of the Exchange Offer contemplated by the Registration Rights
Agreement, Wynn Las Vegas shall file a copy of each of the reports referred
to in clauses (1) and (2) above with the SEC for public availability within
the time periods specified in the rules and regulations applicable to such
reports (unless the SEC will not accept such a filing) and shall post the
reports on its website within those time periods.
(b) If, at any time after consummation of the Exchange Offer
contemplated by the Registration Rights Agreement, Wynn Las Vegas is no longer
subject to the periodic reporting requirements of the Exchange Act for any
reason, Wynn Las Vegas shall nevertheless continue filing the reports specified
in Section 4.03(a) above with the SEC within the time periods specified above
unless the SEC will not accept such a filing. Wynn Las Vegas shall not take any
action for the purpose of causing the SEC not to accept any such filings. If,
notwithstanding the foregoing, the SEC will not accept Wynn Las Vegas' filings
for any reason, Wynn Las Vegas shall post the reports referred to in the
preceding paragraphs on its website within the time periods that would apply if
Wynn Las Vegas were required to file those reports with the SEC.
(c) In addition, the Issuers and the Guarantors agree that, for so
long as any Notes remain outstanding, if at any time they are not required to
file with the SEC the reports required by Section 4.03(a) above, they shall
furnish to the holders of notes and to securities analysts and prospective
investors, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of reports, information and documents to the Trustee
under this Section 4.03 is for informational purposes only and the Trustee's
receipt of the foregoing shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein.
Section 4.04 Compliance Certificate.
(a) The Issuers and, each Guarantor (to the extent that such Guarantor
is so required under the TIA) shall deliver to the Trustee, within 90 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Issuers and their respective Subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Issuers have kept,
observed, performed and fulfilled its obligations under this Indenture and the
Collateral Documents, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Issuers have kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and the Collateral Documents and are not in default in the
performance or observance of any of the terms, provisions and conditions of
this Indenture or the Collateral Documents (or, if a Default or Event of
Default has occurred, describing all such Defaults or Events of Default of
which he or she may have knowledge and what action the Issuers are taking or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Issuers are taking or propose to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by
a written statement of the Issuers' independent public accountants (who shall
be a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Issuers have violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) So long as any of the Notes are outstanding, the Issuers shall
deliver to the Trustee, forthwith upon any Officer becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such Default
or Event of Default and what action the Issuers are taking or proposes to take
with respect thereto.
Section 4.05 Taxes.
The Issuers shall pay, and shall cause each of their respective
Subsidiaries to pay, prior to delinquency, all material taxes, assessments,
and governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
Section 4.06 Stay, Extension and Usury Laws.
The Issuers and each of the Guarantors covenant (to the extent
that they may lawfully do so) that they shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of
this Indenture; and each Issuer and each of the Guarantors (to the extent
that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to
any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every
such power as though no such law has been enacted.
Section 4.07 Restricted Payments.
(a) Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or
distribution on account of any Equity Interests of Wynn Las Vegas or
any of its Restricted Subsidiaries or to the direct or indirect
holders of any Equity Interests of Wynn Las Vegas or any of its
Restricted Subsidiaries in their capacity as such, other than (i)
dividends or distributions by Wynn Las Vegas payable in Equity
Interests (other than Disqualified Stock) of Wynn Las Vegas and (ii)
dividends or distributions payable to Wynn Las Vegas or any of its
Restricted Subsidiaries;
(2) purchase, redeem or otherwise acquire or retire for value
any Equity Interests of Wynn Las Vegas, any direct or indirect parent
of Wynn Las Vegas (including, without limitation, Wynn Resorts) or any
other direct or indirect Subsidiary of Wynn Resorts;
(3) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any
Indebtedness of Wynn Las Vegas or any Guarantor that is secured by a
Lien junior to the Lien securing the Notes or the Guarantees or that
is expressly subordinated in right of payment to the Notes or the Note
Guarantees under this Indenture (excluding any intercompany
Indebtedness between or among Wynn Las Vegas or any of its Restricted
Subsidiaries), except a payment of interest or principal at the Stated
Maturity thereof; or
(4) make any Restricted Investment (all such payments and
other actions set forth in clauses (1) through (4) above being
collectively referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted Payment:
(1) the Phase I Opening Date has occurred; and
(2) no Default or Event of Default has occurred and is
continuing or would occur as a consequence of such Restricted Payment;
and
(3) Wynn Las Vegas would, at the time of such Restricted
Payment and after giving pro forma effect thereto, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof;
and
(4) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by Wynn Las Vegas and its
Restricted Subsidiaries after the date of this Indenture (excluding
Restricted Payments permitted by clauses (2), (3), (5), (7), (8), (9),
(11) and (12) below (with respect to clause (5) to the extent such
Restricted Payments were already deducted from Consolidated Net
Income) of Section 4.07(b) hereof), is less than the sum, without
duplication, of:
(A) 50% of the Consolidated Net Income of Wynn Las
Vegas and its Restricted Subsidiaries for the period (taken
as one accounting period) from the beginning of the first
fiscal quarter commencing after the Phase I Opening Date to
the end of Wynn Las Vegas' most recently ended fiscal quarter
for which internal financial statements are available at the
time of such Restricted Payment (or, if such Consolidated Net
Income for such period is a deficit, less 100% of such
deficit), plus
(B) 100% of the aggregate net cash proceeds received
by Wynn Las Vegas subsequent to the date of this Indenture as
a contribution to its common equity capital, excluding (i)
any such net cash proceeds received by Wynn Las Vegas to the
extent consisting of capital contributions made to Wynn Las
Vegas for the purpose of satisfying the "in-balance"
requirements of the Disbursement Agreement and (ii) any such
net cash proceeds received by Wynn Las Vegas to the extent
used to incur Indebtedness pursuant to clause (14) of Section
4.09(b), plus
(C) (i) to the extent that any Restricted Investment
that was made after the date of this Indenture is sold for
cash or otherwise liquidated or repaid for cash for an amount
in excess of the aggregate amount invested in such Restricted
Investment, the sum of (x) 50% of the cash proceeds with
respect to such Restricted Investment in excess of the
aggregate amount invested in such Restricted Investment (less
the cost of disposition, if any) and (y) the aggregate amount
invested in such Restricted Investment, and (ii) to the
extent that any such Restricted Investment is sold for cash
or otherwise liquidated or repaid in cash for an amount equal
to or less than the aggregate amount invested in such
Restricted Investment, the cash return of capital with
respect to such Restricted Investment (less the cost of
disposition, if any), plus
(D) 100% of any cash dividends or cash distributions
received by Wynn Las Vegas or any of its Restricted
Subsidiaries after the date of this Indenture from any
Restricted Investment (including any Investment in an
Unrestricted Subsidiary of Wynn Las Vegas), to the extent
that such dividends or distributions were not otherwise
included in the Consolidated Net Income of Wynn Las Vegas for
such period, plus
(E) to the extent that any Unrestricted Subsidiary of
Wynn Las Vegas that is so designated after the date of this
Indenture (other than the Completion Guarantor) is
redesignated as a Restricted Subsidiary after the date of
this Indenture, the lesser of (i) the Fair Market Value of
Wynn Las Vegas' Investment in such Subsidiary as of the date
of such redesignation or (ii) such Fair Market Value as of
the date on which such Subsidiary was originally designated
as an Unrestricted Subsidiary; plus
(F) $50.0 million.
(b) With respect to (1) any payments made pursuant to clauses (1),
(2), (3), (6), (7), (8), (9), (10) and (11) below, so long as no Default or
Event of Default has occurred and is continuing or would be caused by the
payments, and (2) any payments made pursuant to clauses (4), (5) and (12)
below, regardless of whether any Default or Event of Default has occurred and
is continuing or would be caused by the payment, the preceding provisions of
this Section 4.07 shall not prohibit:
(1) the payment of any dividend or distribution (other
than any distribution made under clause (5) of this Section
4.07(b)) or the consummation of any irrevocable redemption within
60 days after the date of declaration of the dividend or
distribution or giving of the redemption notice, as the case may
be, if, at the date of declaration or notice the dividend,
distribution or redemption payment would have complied with the
provisions of this Indenture;
(2) the making of any Restricted Payment in exchange for,
or out of the net cash proceeds from the substantially concurrent
contribution of common equity capital to Wynn Las Vegas, provided
that the amount of any such net cash proceeds that are utilized
for any such Restricted Payment shall be excluded from clause
(4)(b) of Section 4.07(a) above;
(3) the repurchase, redemption, defeasance or other
acquisition or retirement for value of Indebtedness of Wynn Las
Vegas or any Guarantor that is contractually subordinated to the
Notes or to any Note Guarantee with the net cash proceeds from a
substantially concurrent incurrence of Permitted Refinancing
Indebtedness;
(4) the distribution or loan to Wynn Resorts, directly or
through any intermediate Wholly Owned Subsidiaries of Wynn
Resorts, of amounts necessary to repurchase Equity Interests or
Indebtedness of Wynn Resorts (other than Equity Interests held by
or Indebtedness owed to the Existing Stockholders) to the extent
required by any Gaming Authority having jurisdiction over Wynn Las
Vegas or any of its Restricted Subsidiaries for not more than the
Fair Market Value thereof in order to avoid the suspension,
revocation or denial of a Gaming License by that Gaming Authority;
provided that so long as, if such efforts do not jeopardize any
Gaming License, Wynn Resorts and its Subsidiaries shall have
diligently attempted to find a third-party purchaser for such
Equity Interests or Indebtedness and no third-party purchaser
acceptable to the applicable Gaming Authority was willing to
purchase such Equity Interests or Indebtedness within a time
period acceptable to such Gaming Authority;
(5) distributions to the direct or indirect owners of
Wynn Las Vegas, the Completion Guarantor or any of the Restricted
Subsidiaries with respect to any period during which such entity
is a Pass Through Entity or a Consolidated Member, such
distributions in an aggregate amount not to exceed such owners'
Tax Amounts for such period;
(6) (i) the repurchase, redemption or other acquisition
or retirement for value of any Equity Interests of Wynn Resorts,
or (ii) the distribution to Wynn Resorts, directly or through any
intermediate Wholly Owned Subsidiaries of Wynn Resorts, of amounts
necessary to repurchase, redeem or otherwise acquire or retire for
value Equity Interests of Wynn Resorts, in each case held by any
member of management of Wynn Resorts (or the estate or trust for
the benefit of any such member of management) pursuant to the
provisions of the operating agreement, or comparable governing
documents, or employee benefit plans or employment agreements of
any such Person; provided that the aggregate consideration for all
such repurchased, redeemed, acquired or retired Equity Interests,
together with the aggregate amount of all such distributions made
to Wynn Resorts, shall not exceed $4.0 million in any calendar
year;
(7) the payment, on or after the Budgeted Overhead Final
Payment Date, of Allocable Overhead to Wynn Resorts or any of its
Subsidiaries in respect of each Qualifying Project of Wynn Las
Vegas and its Restricted Subsidiaries to the extent then due and
payable by Wynn Las Vegas or the applicable Restricted Subsidiary,
as the case may be;
(8) the payment of amounts permitted to be paid pursuant
to the Disbursement Agreement;
(9) Restricted Payments consisting of transfers and other
dispositions of Released Assets;
(10) the satisfaction and discharge or redemption of any
outstanding Second Mortgage Notes;
(11) Restricted Payments not otherwise permitted by the
foregoing clauses (1) through (10) in an aggregate amount of not
more than $10.0 million; and
(12) dividends or distributions to Wynn Resorts, directly
or through any intermediate Wholly Owned Subsidiary of Wynn
Resorts, of amounts necessary to pay amounts then due and payable
under the Tax Indemnification Agreement, as in effect on the date
of this Indenture.
(c) The amount of all Restricted Payments (other than cash) shall be
the Fair Market Value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by Wynn Las Vegas or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
Section 4.08 Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries of Wynn Las Vegas.
(a) Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or permit to exist
or become effective any consensual encumbrance or restriction on the ability of
any Restricted Subsidiaries to:
(1) pay dividends or make any other distributions on its
Capital Stock to Wynn Las Vegas or any of its Restricted Subsidiaries,
or with respect to any other interest or participation in, or measured
by, its profits, or pay any indebtedness owed to Wynn Las Vegas or any
of its Restricted Subsidiaries;
(2) make loans or advances to Wynn Las Vegas or any of its
Restricted Subsidiaries; or
(3) sell, lease, or transfer any of its properties or assets
to Wynn Las Vegas or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof shall not apply to
encumbrances or restrictions existing under or by reason of:
(1) the Notes, this Indenture, the Note Guarantees or the
Collateral Documents;
(2) applicable law, including rules, regulations and orders
issued by any Gaming Authority;
(3) customary non-assignment provisions in contracts,
licenses or leases entered into in the ordinary course of business and
consistent with practices that are customary in the gaming, lodging or
entertainment industry;
(4) the Credit Agreement as in effect on the date of this
Indenture and any other Indebtedness permitted to be incurred by this
Indenture and any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings of
those agreements, so long as the applicable provisions of amendments,
modifications, restatements, renewals, increases, supplements,
refundings, replacements, refinancings or agreements governing other
Indebtedness are no more restrictive, taken as a whole, with respect
to such dividend and other payment restrictions than those contained
in the Credit Agreement as in effect on the date of this Indenture;
(5) the acquisition of the Capital Stock of any Person, or
property or assets of any Person by Wynn Las Vegas or any of its
Restricted Subsidiaries, if the encumbrances or restrictions (i)
existed at the time of the acquisition and were not incurred in
contemplation thereof and (ii) are not applicable to and are not
spread to cover any Person or the property or assets of any Person
other than the Person acquired or the property or assets of the Person
acquired;
(6) purchase money obligations or Capital Lease Obligations
for Indebtedness permitted under clause (7) of Section 4.09(b) hereof
that impose restrictions of the type described in clause (3) of
Section 4.08(a) hereof on the assets so acquired;
(7) any agreement for the sale or other disposition of a
Restricted Subsidiary permitted hereby that restricts distributions by
that Restricted Subsidiary pending its sale or other disposition;
(8) Liens permitted to be incurred under the provisions of
Section 4.12 hereof, securing Indebtedness otherwise permitted to be
incurred under Section 4.09(b) hereof, that limit the right of the
debtor to dispose of the assets subject to such Liens; or
(9) customary provisions with respect to the disposition or
distribution of assets or property in partnership or joint venture
agreements, asset sale agreements, stock sale agreements and other
similar agreements entered into in the ordinary course of business.
Section 4.09 Incurrence of Indebtedness and Issuance of Disqualified Stock.
(a) Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, (i) create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness (including Acquired Debt), or (ii) issue any Disqualified Stock.
Notwithstanding the foregoing, Wynn Las Vegas and its Restricted Subsidiaries
may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock,
if (A) the Phase I Opening Date has occurred and (B) the Fixed Charge Coverage
Ratio of Wynn Las Vegas for Wynn Las Vegas' most recently ended four full
fiscal quarters following the Phase I Opening Date for which internal financial
statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock is issued, as
the case may be (the "Reference Period") would have been at least 2.0 to 1.0,
determined on a pro forma basis, including a pro forma application of the net
proceeds from the Indebtedness, as if the additional Indebtedness had been
incurred or Disqualified Stock had been issued, as the case may be, at the
beginning of such four-quarter period.
(b) The provisions of Section 4.09(a) shall not prohibit the
incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(1) the incurrence by Wynn Las Vegas or any of its Restricted
Subsidiaries of Indebtedness under the Credit Agreement in an
aggregate principal amount at any one time outstanding (with letters
of credit being deemed to have a principal amount equal to the sum of
the face amount thereof and related unpaid reimbursement obligations),
to the extent then classified as having been incurred in reliance on
this clause (1) not to exceed (i) $1.0 billion less (ii) the aggregate
amount of all Net Proceeds of Assets Sales applied by Wynn Las Vegas
or any of its Restricted Subsidiaries since the date of this Indenture
to repay any term Indebtedness under the Credit Agreement or repay any
revolving credit Indebtedness under the Credit Agreement and effect a
corresponding permanent reduction of commitments thereunder pursuant
to Section 4.10 hereof or otherwise; provided, however, if the Phase
II Project Budget and the Phase II Plans and Specifications are not
approved by a majority of the arrangers or a majority of the lenders
under the Credit Agreement by June 30, 2005, then the amount of
Indebtedness permitted to be incurred under the Credit Agreement
pursuant to clause (i) above of this clause (1) shall be reduced by
$550.0 million;
(2) the incurrence by the Issuers and the Restricted
Subsidiaries of Wynn Las Vegas of the Existing Indebtedness;
(3) the incurrence by Wynn Las Vegas or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to refund, refinance or replace
Indebtedness (other than intercompany Indebtedness) that was permitted
by this Indenture to be incurred under this Section 4.09(a), under
clauses (2), (7), (8), (9) or (12) of this Section 4.09(b), or under
this clause (3);
(4) incurrence by Wynn Las Vegas or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among Wynn Las
Vegas and any of its Restricted Subsidiaries; provided, however, that:
(a) if Wynn Las Vegas or any Guarantor is the obligor
on such Indebtedness and the payee is not Wynn Las Vegas or a
Guarantor, such Indebtedness must be expressly subordinated in right
of payment to the prior payment in full in cash of all Obligations
then due with respect to the Notes, in the case of Wynn Las Vegas, or
its Note Guarantee under this Indenture, in the case of a Guarantor,
except that no Indebtedness of Wynn Las Vegas or any Guarantor shall
be deemed to be subordinated in right of payment to any other
Indebtedness of Wynn Las Vegas or any such Guarantor solely by virtue
of being unsecured; and
(b) (i) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a Person
other than Wynn Las Vegas or a Restricted Subsidiary thereof, and (ii)
any sale or other transfer of any such Indebtedness to a Person that
is neither Wynn Las Vegas nor a Restricted Subsidiary thereof shall be
deemed, in each case, to constitute an incurrence of such Indebtedness
by Wynn Las Vegas or such Restricted Subsidiary, as the case may be,
that was not permitted by this clause (4);
(5) the incurrence by Wynn Las Vegas or any of its Restricted
Subsidiaries of Hedging Obligations in the ordinary course of
business;
(6) the incurrence by Wynn Las Vegas or any of its Restricted
Subsidiaries of Indebtedness solely in respect of performance, surety,
appeal or similar bonds or commercial or standby letters of credit, so
long as such Indebtedness is incurred in the ordinary course of
business and the aggregate amount of all such bonds and standby
letters of credit is not greater than $40.0 million at any time
outstanding;
(7) the incurrence by Wynn Las Vegas or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case,
incurred for the purpose of financing all or any part of the purchase
price or cost of design, construction, installation or improvement of
property, plant or equipment (including acquisitions of Capital Stock
of a Person that becomes a Restricted Subsidiary to the extent of the
Fair Market Value of the property, plant or equipment of such Person)
used in the Projects by Wynn Las Vegas or any of its Restricted
Subsidiaries, in an aggregate principal amount, including all
Permitted Refinancing Indebtedness incurred to renew, refund,
refinance, replace, defease or discharge any Indebtedness incurred
pursuant to this clause (7), not to exceed $100.0 million at any time
outstanding;
(8) the incurrence by Wynn Las Vegas or any of its Restricted
Subsidiaries of Indebtedness in a principal amount, including all
Permitted Refinancing Indebtedness incurred to renew, refund,
refinance, replace, defease or discharge any Indebtedness incurred
pursuant to this clause (8), not to exceed, at any time, 75% of the
aggregate cost of the Phase III Project to the pay the costs and
expenses of designing, developing and constructing the Phase III
Project, so long as:
(a) the Phase II Opening Date has occurred;
(b) the Holders of the Notes continue to have a perfected
first priority security interest in the Golf Course Land; and
(c) Wynn Las Vegas' and its Restricted Subsidiaries' total
Indebtedness does not exceed 6.5 times Consolidated EBITDA for the
four full fiscal quarters immediately preceding the date of such
incurrence;
(9) the incurrence by Wynn Las Vegas or any of its Restricted
Subsidiaries of Indebtedness in connection with the repurchase,
redemption or other acquisition or retirement for value of Equity
Interests of Wynn Resorts or any Restricted Subsidiary permitted
pursuant to clause (6) of Section 4.07(b) hereof;
(10) the incurrence by Wynn Las Vegas or any of its
Restricted Subsidiaries on or prior to the Phase II Final Completion
Date of Indebtedness represented by performance bonds, guaranties,
trade letters of credit, bankers' acceptances or similar instruments
issued by Person other than Wynn Resorts or any of its Restricted
Subsidiaries for the benefit of a trade creditor of any such Person,
in an aggregate amount not to exceed $20.0 million at any time
outstanding so long as:
(a) such Indebtedness is incurred in the ordinary course of
business; and
(b) the obligations of Wynn Las Vegas or the applicable
Restricted Subsidiary, as the case may be, supported by such
performance bonds, guaranties, trade letters of credit, bankers'
acceptances or similar instruments (A) consist solely of payment
obligations with respect to costs incurred in accordance with the
Phase I Project Budget and the Phase II Project Budget, as applicable,
which would otherwise be permitted to be paid by the applicable entity
pursuant to the Disbursement Agreement and (2) if secured, are secured
solely by Liens permitted by clause (22) of the definition of
"Permitted Liens;" and
(11) the incurrence by Wynn Las Vegas or any of its
Restricted Subsidiaries of additional Indebtedness in an aggregate
principal amount at any time outstanding, not to exceed $40.0 million;
(12) the incurrence by the Issuers and the Guarantors of the
Notes issued on the date of this Indenture in an aggregate principal
amount of $1.3 billion and the Exchange Notes related thereto;
(13) the incurrence of Indebtedness (and the Guarantee of
such Indebtedness by Wynn Las Vegas) in an amount not to exceed 100%
of the Fair Market Value of the Aircraft, which is secured only by
Liens permitted by clause (26) of the definition of "Permitted Liens;"
(14) the incurrence by Wynn Las Vegas or any of its
Restricted Subsidiaries of additional Indebtedness (so long as such
Indebtedness is incurred under the Credit Agreement, through the
issuance of Additional Notes under this Indenture, is unsecured
Indebtedness or is Permitted Junior Debt) to be used to develop and
construct an Additional Entertainment Facility and/or a Retail
Facility on land included in the Projects in an aggregate principal
amount (or original accreted value, as applicable) at any time not to
exceed 662/3% of the aggregate cost of such Additional Entertainment
Facility and/or Retail Facility; provided that, subsequent to the date
of this Indenture and on or prior to the date of the incurrence of
such Indebtedness, net cash proceeds have been received by Wynn Las
Vegas as a contribution to its common equity capital in an amount
equal to at least 331/3% of the aggregate cost of such Additional
Entertainment Facility and/or Retail Facility, which proceeds have
been irrevocably committed at the time of such contribution for use in
the development and construction of such Additional Entertainment
Facility and/or a Retail Facility; and
(15) the incurrence by Wynn Capital, as co-obligor, of any
Indebtedness which Wynn Las Vegas is permitted to incur pursuant to
the foregoing provisions.
(c) For purposes of determining compliance with this Section 4.09, in
the event that an item of proposed Indebtedness meets the criteria of more than
one of the categories of Permitted Debt described in (1) through (14) of
Section 4.09(b) hereof, or is entitled to be incurred pursuant to Section
4.09(a), the Issuers shall be permitted to classify such item of Indebtedness
on the date of its incurrence, or later reclassify all or a portion of such
item of Indebtedness, in any manner that complies with this Section 4.09 as of
the date of such classification or reclassification. Indebtedness under the
Credit Agreement outstanding on the date on which the Notes are first issued
and authenticated under this Indenture shall initially be deemed to have been
incurred on such date in reliance on the exception provided by clause (1) of
Section 4.09(b) hereof. The accrual of interest, the accretion or amortization
of original issue discount, the payment of interest on any Indebtedness in the
form of additional Indebtedness with the same terms, the reclassification of
preferred stock as Indebtedness due to a change in accounting principles, and
the payment of dividends on Disqualified Stock in the form of additional shares
of the same class of Disqualified Stock shall not be deemed to be an incurrence
of Indebtedness or an issuance of Disqualified Stock for purposes of this
covenant. Notwithstanding any other provision of this covenant, the maximum
amount of Indebtedness that Wynn Las Vegas or any of its Restricted
Subsidiaries may incur pursuant to this Section 4.09 shall not be exceeded
solely as a result of fluctuations in exchange rates or currency values. In
addition, any Indebtedness which is permitted to be incurred by Wynn Las Vegas
or any of its Restricted Subsidiaries under clause (7) set forth above may be
incurred under the Credit Agreement or through the issuance of Additional Notes
under this Indenture.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value of the Indebtedness, in the case
of any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the
case of any other Indebtedness; and
(3) in respect of Indebtedness of another Person secured
by a Lien on the assets of the specified Person, the lesser of:
(a) the Fair Market Value of such assets at the date of
determination; and
(b) the amount of the Indebtedness of the other Person.
Section 4.10 Asset Sales.
Wynn Las Vegas shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(a) except with respect to Non-Project Assets, the Phase I Opening
Date has occurred;
(b) Wynn Las Vegas (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of the Asset Sale at least equal to the Fair
Market Value of the assets or Equity Interests issued or sold or otherwise
disposed of (it being understood that a percentage of the purchase price may be
subject to escrow arrangements customary for asset sales);
(c) if the aggregate consideration to be received by Wynn Las Vegas or
such Restricted Subsidiary is in excess of $10.0 million, the Fair Market Value
is evidenced by a certificate of the Chief Financial Officer of Wynn Las Vegas
delivered to the Trustee; and
(d) at least 75% (or 90%, in the case of any Asset Sale that occurs on
or before the Phase I Opening Date) of the consideration received in the Asset
Sale by Wynn Las Vegas or such Restricted Subsidiary is in the form of cash or
Cash Equivalents.
For purposes of this Section 4.10, each of the following shall be
deemed to be cash:
(1) any liabilities, as shown on such Wynn Las Vegas' most
recent consolidated balance sheet, of Wynn Las Vegas or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are
by their terms subordinated to the Notes or any Note Guarantee) that
are assumed by the transferee of any such assets pursuant to a
customary novation agreement that releases Wynn Las Vegas or such
Restricted Subsidiary from further liability; and
(2) any securities, notes or other obligations received by
Wynn Las Vegas or any such Restricted Subsidiary from such transferee
that are converted within 30 Business Days by Wynn Las Vegas or such
Restricted Subsidiary into cash, to the extent of the cash received in
that conversion.
Within 360 days (or within 90 days, in the case of any Asset Sale
that occurs on or before the Phase I Opening Date) after the receipt of any
Net Proceeds from an Asset Sale, Wynn Las Vegas (or the applicable
Restricted Subsidiary as the case may be) may apply such Net Proceeds to
make a capital expenditure, improve real property or acquire long-term
assets that are used or useful in a line of business permitted by Section
4.13 hereof. In any such case, Wynn Las Vegas (or such Restricted
Subsidiary, as the case may be) shall take all necessary action to ensure
that the security interest of the Trustee, on behalf of the Holders,
continues as a perfected first priority security interest (equal and
ratable with the security interest securing the Credit Agreement and
subject to other Permitted Liens and the terms of the Intercreditor
Agreement) on any property or assets acquired or constructed with the Net
Proceeds of any Asset Sale on the terms set forth in this Indenture, the
Intercreditor Agreement and the other Collateral Documents. Pending the
final application of any Net Proceeds, Wynn Las Vegas (or such Restricted
Subsidiary, as the case may be) may (1) apply the Net Proceeds to
temporarily reduce amounts outstanding under any pari passu secured
revolving credit Indebtedness of Wynn Las Vegas or any of its Restricted
Subsidiaries, or (2) invest the Net Proceeds in Cash Equivalents which, at
any time other than during a Collateral Release Period, shall be subject to
a perfected first priority security interest (equal and ratable with the
security interest securing the Credit Agreement and subject to other
Permitted Liens and the terms of the Intercreditor Agreement) in favor of
the Trustee, on behalf of the Holders, as security for the Notes.
Any Net Proceeds from Asset Sales that are not applied or invested
as provided in the preceding paragraph shall constitute "Excess Net
Proceeds." Within 10 days following the earlier of (i) the date on which
the aggregate amount of Excess Net Proceeds exceeds $20.0 million or (ii)
the date when the proceeds of any sale of assets are required, pursuant to
the Credit Agreement, to be applied to reduce Indebtedness of Wynn Las
Vegas (such Excess Net Proceeds and the proceeds described in preceding
clause (ii) shall collectively constitute "Excess Proceeds"), Wynn Las
Vegas shall allocate a portion of the Excess Proceeds, determined by
multiplying the amount of such Excess Proceeds by a fraction, the numerator
of which is the total aggregate principal amount of Notes then outstanding
and all Pari Passu Debt then outstanding, and the denominator of which is
the total aggregate principal amount of Notes then outstanding, all Pari
Passu Debt then outstanding and all Indebtedness then outstanding under the
Credit Agreement (such amount being the "Asset Sale Offer Amount"), to make
an offer (an "Asset Sale Offer") to all holders of Notes and, to the extent
required, the holders of such Pari Passu Debt to repurchase such Notes and
such Pari Passu Debt at an offer price equal to 100% of the principal
amount of the Notes and such Pari Passu Debt to be purchased plus accrued
and unpaid interest and Liquidated Damages, if any, on the Notes and such
other Pari Passu Debt to the date of repurchase, which offer price shall be
payable in cash. The amount of any such Excess Proceeds less the Asset Sale
Offer Amount (the "Asset Sale Repayment Amount") shall concurrently be
applied to repay any term Indebtedness outstanding under the Credit
Agreement in accordance with the requirements of the Credit Agreement;
provided, however, that to the extent that the Asset Sale Repayment Amount
exceeds the amount of term Indebtedness then outstanding under the Credit
Agreement at the time of repayment, such excess amount (after repayment in
full of the term Indebtedness under the Credit Agreement) shall be added to
the Asset Sale Offer Amount and offered to the holders of Notes and, to the
extent required, the holders of such Pari Passu Debt pursuant to the Asset
Sale Offer as provided in the preceding sentence. If any Excess Proceeds
remain after consummation of an Asset Sale Offer and repayment of any term
Indebtedness outstanding under the Credit Agreement, Wynn Las Vegas (or
such Restricted Subsidiary, as the case may be) may use those Excess
Proceeds for any general corporate purpose not prohibited by this
Indenture, the Credit Agreement and the Collateral Documents, including,
without limitation, to reduce revolving credit Indebtedness (and, if
required, commitments) under the Credit Agreement. If the aggregate
principal amount of Notes and such other Pari Passu Debt tendered into such
Asset Sale Offer exceeds the Asset Sale Offer Amount that may be applied to
the Asset Sale Offer, the Trustee shall select the Notes and such other
Pari Passu Debt to be purchased as described in Sections 3.02 and 3.10
hereof. Upon completion of each Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
The Issuers shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with
each repurchase of Notes pursuant to an Asset Sale Offer. To the extent
that the provisions of any securities laws or regulations conflict with the
provisions of Section 3.10 or this Section 4.10, the Issuers shall comply
with the applicable securities laws and regulations and shall not be deemed
to have breached their obligations under those provisions of this Indenture
by virtue of such compliance.
Section 4.11 Transactions with Affiliates.
(a) Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate of Wynn Las Vegas (each, an "Affiliate Transaction"),
unless:
(1) the Affiliate Transaction is on terms that are no less
favorable to Wynn Las Vegas than those that would have been obtained
in a comparable transaction by Wynn Las Vegas or such Restricted
Subsidiary with an unrelated Person;
(2) Wynn Las Vegas or the applicable Restricted Subsidiary
delivers to the Trustee:
(A) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $10.0 million, a resolution of the
Board of Directors of Wynn Capital set forth in an Officers'
Certificate certifying that such Affiliate Transaction
complies with this Section 4.11 and that such Affiliate
Transaction has been approved by a majority of the
disinterested directors of Wynn Capital, to the extent that
there are any such disinterested directors of Wynn Capital;
(B) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $25.0 million, an opinion as to
the fairness to Wynn Las Vegas or such Restricted Subsidiary
of such Affiliate Transaction from a financial point of view
issued by an accounting, appraisal or investment banking firm
of national standing prior to the consummation of such
Affiliate Transaction; and
(3) in the case of any Affiliate Transaction involving the
use of the Aircraft (if such aircraft is owned by Wynn Las Vegas or
any Restricted Subsidiary) for any purpose not reasonably related to
the Projects or the Permitted Businesses of Wynn Las Vegas or the
applicable Restricted Subsidiary relating to or in connection with the
Projects, Wynn Las Vegas or the applicable Restricted Subsidiary, as
the case may be, is reimbursed promptly for actual costs and expenses
incurred by such Person in connection with such use.
(b) The following items shall not be deemed to be Affiliate
Transactions and, therefore, shall not be subject to the provisions of Section
4.11(a):
(1) any employment agreement entered into by Wynn Las Vegas
or any of its Restricted Subsidiaries with any Person (other than the
Principal) in the ordinary course of business;
(2) the payment of reasonable directors'/managers' fees to
directors or managers of Wynn Las Vegas, Wynn Capital or any
Guarantor, and customary indemnification and insurance arrangements in
favor of such directors or managers, in each case in the ordinary
course of business;
(3) transactions between or among Wynn Las Vegas and/or its
Restricted Subsidiaries;
(4) Restricted Payments that are made in compliance with the
provisions of Section 4.07 hereof;
(5) leases by Wynn Las Vegas to one or more of its Affiliates
of space at the Phase I Project, at market rental rates, for the
development and operation of a Ferrari and Maserati automobile
dealership pursuant to the Dealership Lease Agreement, to the extent
permitted under the Collateral Documents;
(6) (i) the payment, on or after the Budgeted Overhead Final
Payment Date, of Allocable Overhead to Wynn Resorts in respect of each
Qualifying Project of Wynn Las Vegas and its Restricted Subsidaries
and (ii) other payments made pursuant to the Affiliate Agreements, in
each case, as in effect on the date of this Indenture or as such
Affiliate Agreements may be amended, modified or supplemented in any
manner that is not in contravention of the Section 4.25;
(7) any Permitted Investment made pursuant to clauses (10),
(12), (13) or (14) of the definition thereof;
(8) the issuance by Wynn Las Vegas of any Equity Interests
(other than Disqualified Stock) to any Affiliate if such issuance is
otherwise not in contravention of the terms of this Indenture; and
(9) the issuance by Wynn Las Vegas of Notes, in connection
with the issuance of the Initial Notes under this Indenture and the
issuance of the Note Guarantees by the Guarantors, to any Affiliate if
such issuance is otherwise not in contravention of the terms of this
Indenture and is on terms that are no less favorable to Wynn Las Vegas
and the Guarantors than those that could have been obtained in a
comparable transaction by Wynn Las Vegas and the Guarantors with an
unrelated Person.
Section 4.12 Liens.
Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume
or suffer to exist any Lien of any kind on any asset now owned or hereafter
acquired, or any proceeds, income or profits therefrom or assign or convey
any right to receive income therefrom, except Permitted Liens.
Section 4.13 Line of Business.
Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, engage in any business or investment activities
other than the Permitted Business. Wynn Las Vegas shall not, and shall not
permit any of its Subsidiaries to, conduct a Permitted Business in any
gaming jurisdiction in which such entity is not licensed on the date of
this Indenture if the Holders of the Notes would be required to be licensed
as a result thereof; provided that this sentence shall not prohibit any
entity from conducting a Permitted Business in any jurisdiction that does
not require the licensing or qualification of all the Holders of Notes, but
reserves the discretionary right to require the licensing or qualification
of any Holders of Notes.
Section 4.14 Corporate and Organizational Existence.
Subject to Article 5 hereof, except in the case of a Permitted
C-Corp. Conversion, each of the Issuers shall, and shall cause the
Restricted Subsidiaries to, do or cause to be done all things necessary to
preserve and keep in full force and effect:
(a) its corporate or limited liability company existence, and the
corporate, partnership or other existence of each of its Subsidiaries, in
accordance with their respective organizational documents (as the same may be
amended from time to time); and
(b) the rights (charter and statutory), licenses and franchises of the
Issuers and their respective Subsidiaries; provided, however, that the Issuers
and the Restricted Subsidiaries shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence
of any of their respective Subsidiaries (other than the Issuers), if the Board
of Directors of Wynn Capital or the applicable Restricted Subsidiary shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of Wynn Las Vegas and its Restricted Subsidiaries, taken as a
whole, and that the loss thereof is not adverse in any material respect to the
Holders of the Notes.
Section 4.15 Offer to Purchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, the Issuers shall make
an offer (a "Change of Control Offer") to each Holder to repurchase all or any
part (equal to $1,000 or an integral multiple of $1,000) of each Holder's Notes
at a purchase price equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest and Liquidated Damages, if any, on the Notes
purchased, if any, to the date of repurchase (the "Change of Control Payment").
Within ten days following any Change of Control, the Issuers shall mail a
notice to each Holder describing the transaction or transactions that
constitute the Change of Control and stating:
(1) that the Change of Control Offer is being made pursuant
to this Section 4.15 and that all Notes tendered shall be accepted for
payment;
(2) the purchase price and the purchase date, which shall be
no earlier than 30 days and no later than 60 days from the date such
notice is mailed (the "Change of Control Payment Date");
(3) that any Note not tendered shall continue to accrue
interest;
(4) that, unless the Issuers default in the payment of the
Change of Control Payment, all Notes accepted for payment pursuant to
the Change of Control Offer shall cease to accrue interest after the
Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased
pursuant to a Change of Control Offer shall be required to surrender
the Notes, with the form entitled "Option of Holder to Elect Purchase"
attached to the Notes completed, or transfer by book-entry transfer,
to the Paying Agent at the address specified in the notice prior to
the close of business on the third Business Day preceding the Change
of Control Payment Date;
(6) that Holders shall be entitled to withdraw their election
if the Paying Agent receives, not later than the close of business on
the second Business Day preceding the Change of Control Payment Date,
a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of Notes delivered for
purchase, and a statement that such Holder is withdrawing his election
to have the Notes purchased; and
(7) that Holders whose Notes are being purchased only in part
shall be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, which unpurchased portion must be
equal to $1,000 in principal amount or an integral multiple thereof.
The Issuers shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder
to the extent those laws and regulations are applicable in connection with
the purchase of the Notes as a result of a Change in Control. To the extent
that the provisions of any securities laws or regulations conflict with the
provisions of Sections 3.10 or 4.15 of this Indenture, the Issuers shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached their obligations under Section 3.10 or this
Section 4.15 by virtue of such conflict.
(b) On the Change of Control Payment Date, the Issuers shall, to the
extent lawful:
(1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or portions of Notes
properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes
properly accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions of Notes being
purchased by the Issuers.
The Paying Agent shall promptly mail to each Holder of Notes
properly tendered the Change of Control Payment for such Notes, and the
Trustee shall promptly authenticate and mail (or cause to be transferred by
book entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any; provided that each
new Note shall be in a principal amount of $1,000 or an integral multiple
thereof. The Issuers shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control
Payment Date.
(c) Notwithstanding anything to the contrary in this Section 4.15, the
Issuers shall not be required to make a Change of Control Offer upon a Change
of Control if (1) a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set
forth in this Section 4.15 and Section 3.10 hereof and purchases all Notes
validly tendered and not withdrawn under the Change of Control Offer, or (2) a
notice of redemption has been given pursuant to this Indenture as described
above under Section 3.03 hereof, unless and until there is a default in payment
of the applicable redemption price.
Section 4.16 Events of Loss
After any Event of Loss with respect to Collateral (other than
Events of Loss with respect to Collateral comprising the Phase I Project
and/or Collateral comprising the Phase II Project, if applicable, at any
time during the construction of the Phase I Project and/or the Phase II
Project, respectively, which shall be governed by the Disbursement
Agreement), Wynn Las Vegas or the applicable Restricted Subsidiary, as the
case may be, may apply the Net Loss Proceeds from the Event of Loss to the
rebuilding, repair, replacement or construction of improvements to the
damaged Collateral, with no obligation to make any purchase of any Notes;
so long as, in the case of any such Collateral with a Fair Market Value (or
replacement cost, if higher) in excess of $30.0 million; provided that:
(a) Wynn Las Vegas delivers to the Trustee within 90 days of the Event
of Loss a written opinion from a reputable contractor that the damaged
Collateral can be rebuilt, repaired, replaced or constructed and operating
within 365 days following the delivery of such written opinion to the Trustee;
(b) Wynn Las Vegas delivers to the Trustee within 120 days of the
Event of Loss an Officers' Certificate certifying that Wynn Las Vegas or the
applicable Restricted Subsidiary has available from Net Loss Proceeds, cash on
hand or available borrowings under Indebtedness permitted to be incurred under
Section 4.09 hereof to complete the rebuilding, repair, replacement or
construction described in clause (a) above and, together with any anticipated
revenues projected to be generated during the repair or restoration period, to
pay debt service on its Indebtedness during the repair or restoration period;
and
(c) the damaged Collateral is rebuilt, repaired, replaced or
constructed and operating in substantially the manner that it was operating
immediately prior to the Event of Loss within 365 days following the delivery
of such written opinion to the Trustee.
Notwithstanding the foregoing provisions of this Section 4.16, if
the damaged Collateral is not necessary for and is not used in the
operation of the Phase I Project or the Phase II Project, as the case may
be, Wynn Las Vegas (or the applicable Restricted Subsidiary, as the case
may be) may apply the Net Loss Proceeds to make a capital expenditure,
improve real property or acquire long-term assets that are used or useful
in a line of business permitted by Section 4.13 hereof.
The ability of Wynn Las Vegas or any of its Restricted
Subsidiaries to repair or restore any of the Collateral following an Event
of Loss that occurs on or prior to the Phase I Final Completion Date or the
Phase II Final Completion Date, as the case may be, shall be governed by
the Disbursement Agreement.
Any Net Loss Proceeds that are (1) not permitted to be used to
repair or restore the Collateral pursuant to the Disbursement Agreement,
(2) not reinvested as provided in the first sentence of this Section 4.16
or (3) otherwise required, pursuant to the Credit Agreement, to be applied
to reduce Indebtedness of Wynn Las Vegas, in each case, shall be deemed
"Excess Loss Proceeds." Within 10 days following the earlier of (i) the
date on which the aggregate amount of Excess Loss Proceeds exceeds $10.0
million or (ii) the date when, pursuant to the Credit Agreement, Excess
Loss Proceeds are required to be applied to reduce Indebtedness of Wynn Las
Vegas, Wynn Las Vegas shall allocate a portion of such Excess Loss Proceeds
determined by multiplying the amount of such Excess Loss Proceeds by a
fraction, the numerator of which is the total aggregate principal amount of
Notes then outstanding and all Pari Passu Debt then outstanding, and the
denominator of which is the total aggregate principal amount of Notes then
outstanding, all Pari Passu Debt then outstanding and all Indebtedness then
outstanding under the Credit Agreement (such amount being the "Event of
Loss Offer Amount"), to make an offer (an "Event of Loss Offer") to all
Holders of Notes and, to the extent required, the holders of such Pari
Passu Debt to repurchase such Notes and such Pari Passu Debt at an offer
price equal to 100% of the principal amount of the Notes and such Pari
Passu Debt to be purchased plus accrued and unpaid interest and Liquidated
Damages, if any, on the Notes and such other Pari Passu Debt to the date of
repurchase, which offer price shall be payable in cash. The amount of any
such Excess Loss Proceeds less the Event of Loss Offer Amount (the "Event
of Loss Repayment Amount") shall concurrently be applied to repay any term
Indebtedness outstanding under the Credit Agreement in accordance with the
requirements of the Credit Agreement; provided, however, that to the extent
that the Event of Loss Repayment Amount exceeds the amount of term
Indebtedness then outstanding under the Credit Agreement at the time of
repayment but does not exceed $100.0 million (unless the lenders under the
Credit Agreement have waived any requirement of Wynn Las Vegas to prepay
revolving credit Indebtedness outstanding under the Credit Agreement and to
effect a corresponding permanent reduction of the commitments thereunder),
such excess amount (after repayment in full of the term Indebtedness under
the Credit Agreement) shall be added to the Event of Loss Offer Amount and
offered to the Holders of Notes and, to the extent required, the holders of
such Pari Passu Debt pursuant to the Event of Loss Offer as provided in the
preceding sentence. If any Excess Loss Proceeds remain after consummation
of an Event of Loss Offer and repayment of any term Indebtedness
outstanding under the Credit Agreement, Wynn Las Vegas (or such Restricted
Subsidiary, as the case may be) may use those Excess Loss Proceeds for any
general corporate purpose not prohibited by this Indenture, the Credit
Agreement and the Collateral Documents, including, without limitation, to
reduce revolving credit Indebtedness (and, if required, commitments) under
the Credit Agreement. If the aggregate principal amount of Notes and such
other Pari Passu Debt tendered into such Event of Loss Offer exceeds the
Event of Loss Offer Amount that may be applied to the Event of Loss Offer,
the Trustee shall select the Notes and such other Pari Passu Debt to be
purchased as described Sections 3.02 and Section 3.10 hereof. Upon
completion of each Event of Loss Offer, the amount of Excess Loss Proceeds
shall be reset at zero.
Pending their application, all Net Loss Proceeds shall either be
(1) applied to temporarily reduce amounts outstanding under any pari passu
secured revolving credit Indebtedness under the Credit Agreement, or (2)
invested in Cash Equivalents held in an account in which the Trustee has a
perfected first priority security interest for the benefit of the Holders
(equal and ratable with the perfected security interest securing the Credit
Agreement and subject to other Permitted Liens and the terms of the
Intercreditor Agreement). These funds and securities shall be released to
Wynn Las Vegas (or the applicable Restricted Subsidiary, as the case may
be) to pay for or reimburse Wynn Las Vegas (or the applicable Restricted
Subsidiary, as the case may be) for either (1) the actual cost of a
permitted use of Net Loss Proceeds as provided in this Section 4.16, or (2)
the Event of Loss Offer, pursuant to the terms of the Collateral Documents.
Wynn Las Vegas (or the applicable Restricted Subsidiary, as the case may
be) shall grant to the Trustee, on behalf of the Holders, a security
interest (equal and ratable with the perfected security interest securing
the Credit Agreement and subject to other Permitted Liens and the terms of
the Intercreditor Agreement), on any property or assets rebuilt, repaired,
replaced or constructed with such Net Loss Proceeds on the terms set forth
in this Indenture and the Collateral Documents.
In the event of an Event of Loss pursuant to clause (3) of the
definition of "Event of Loss" with respect to property or assets that have
a Fair Market Value (or replacement cost, if greater) in excess of $30.0
million, Wynn Las Vegas (or the applicable Restricted Subsidiary, as the
case may be) shall be required to receive consideration:
(a) at least equal to the Fair Market Value (evidenced by a
resolution of Wynn Capital's Board of Directors set forth in an Officers'
Certificate delivered to the Trustee) of the property or assets subject to
the Event of Loss; and
(b) at least 80% of which is in the form of cash or Cash
Equivalents.
The Issuers shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with
each repurchase of Notes pursuant to an Event of Loss Offer. To the extent
that the provisions of any securities laws or regulations conflict with the
provisions of Sections 3.10 or 4.16 of this Indenture, the Issuers shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached their obligations under those provisions of this
Indenture by virtue of such conflict.
Section 4.17 Designation of Restricted and Unrestricted Subsidiaries
The Board of Directors of Wynn Capital may designate any
Restricted Subsidiary, other than Wynn Capital, to be an Unrestricted
Subsidiary of Wynn Las Vegas if that designation would not cause a Default
or an Event of Default. If a Restricted Subsidiary of Wynn Las Vegas is
designated as an Unrestricted Subsidiary, the aggregate Fair Market Value
of all outstanding Investments owned by Wynn Las Vegas and its Restricted
Subsidiaries in the Subsidiary properly designated shall be deemed to be an
Investment made in an Unrestricted Subsidiary as of the time of the
designation and shall reduce the amount available for Restricted Payments
under Section 4.07 hereof or Permitted Investments, as determined by Wynn
Las Vegas. That designation shall only be permitted if the Investment would
be permitted at that time and if the Restricted Subsidiary of Wynn Las
Vegas otherwise meets the definition of an "Unrestricted Subsidiary." The
Board of Directors of Wynn Capital may redesignate any Unrestricted
Subsidiary of Wynn Las Vegas to be a Restricted Subsidiary of Wynn Las
Vegas if the redesignation would not cause a Default or an Event of
Default.
Any designation of a Subsidiary of Wynn Las Vegas as an
Unrestricted Subsidiary shall be evidenced to the Trustee by filing with
the Trustee a certified copy of a resolution of the Board of Directors
giving effect to such designation and an Officers' Certificate certifying
that such designation complied with the preceding conditions and was
permitted by Section 4.07 hereof. If, at any time, any Unrestricted
Subsidiary would fail to meet the preceding requirements as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for
purposes of this Indenture and any Indebtedness of such Subsidiary shall be
deemed to be incurred by a Restricted Subsidiary of Wynn Las Vegas as of
such date and, if such Indebtedness is not permitted to be incurred as of
such date under Section 4.09 hereof, Wynn Las Vegas shall be in default of
such covenant. The Board of Directors of Wynn Capital may at any time
redesignate any Unrestricted Subsidiary of Wynn Las Vegas to be a
Restricted Subsidiary of Wynn Las Vegas; provided that such designation
shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of Wynn Las Vegas of any outstanding Indebtedness of such
Unrestricted Subsidiary, and such designation shall only be permitted if
(1) such Indebtedness is permitted under Section 4.09 hereof, calculated on
a pro forma basis as if such designation had occurred at the beginning of
the four-quarter reference period; and (2) no Default or Event of Default
would be in existence following such designation.
Section 4.18 Construction.
Wynn Las Vegas shall, and shall cause its Restricted Subsidiaries
to, construct the Phase I Project and, if the Phase II Budget and the Phase
II Plans and Specifications are approved by June 30, 2005, the Phase II
Project, including the furnishing, fixturing and equipping of the Phase I
Project and, if applicable, the Phase II Project, with diligence and
continuity in a good and workmanlike manner substantially in accordance
with the Phase I Plans and Specifications or the Phase II Plans and
Specifications, as applicable.
Section 4.19 Limitations on Use of Proceeds.
Wynn Las Vegas shall deposit all of the remaining net proceeds of
the offering of the Initial Notes into the Secured Account after (i) paying
the costs and expenses of a tender offer and consent solicitation for the
Second Mortgage Notes (including principal, accrued interest and tender
offer premium and consent payments net of interest reserve amounts on such
Second Mortgage Notes), (ii) repaying the outstanding aggregate balance of
the land loan encumbering the Phase II Land (net of interest reserve
amounts on such land loan), (iii) repaying the outstanding aggregate
balance under Wynn Las Vegas' existing $1.05 billion senior secured credit
facility, (iv) repaying the outstanding aggregate balance under Wynn Las
Vegas' existing $198.5 million FF&E Facility and (v) the costs and expenses
of the foregoing. The funds in the Secured Account shall be invested solely
in Permitted Securities. All funds in the Secured Account shall be
disbursed only in accordance with the Disbursement Collateral Account
Agreement and the Disbursement Agreement.
Section 4.20 Limitation on Status as Investment Company.
The Issuers and Guarantors shall not be or become required to
register as an "investment company" (as that term is defined in the
Investment Company Act of 1940, as amended), or otherwise become subject to
regulation under the Investment Company Act of 1940.
Section 4.21 Limitation on Sale and Leaseback Transactions.
Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, enter into any sale and leaseback transaction
(except with respect to the Aircraft Assets so long as, and to the extent
that, such Aircraft Assets are not Collateral); provided that Wynn Las
Vegas or any Restricted Subsidiary may enter into a sale and leaseback
transaction if:
(a) Wynn Las Vegas or that Restricted Subsidiary, as applicable, could
have (a) incurred Indebtedness in an amount equal to the Attributable Debt
relating to such sale and leaseback transaction under the Fixed Charge Coverage
Ratio test set forth in Section 4.09(a) hereof and (b) incurred a Lien to
secure such Indebtedness in an amount equal to the Attributable Debt pursuant
to Section 4.12 hereof;
(b) the gross cash proceeds of such sale and leaseback transaction are
at least equal to the Fair Market Value, as determined in good faith by the
Board of Directors of Wynn Capital or that Restricted Subsidiary, as the case
may be, and set forth in an Officers' Certificate delivered to the Trustee, of
the property that is the subject of such sale and leaseback transaction; and
(c) the transfer of assets in such sale and leaseback transaction is
permitted by, and Wynn Las Vegas or such Restricted Subsidiary applies the
proceeds of such transaction in compliance with Section 4.10 hereof.
Section 4.22 Limitation on Development of Golf Course Land
(a) Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, at any time prior to the date on which the security
interests in all of the Golf Course Land are released in accordance with
Section 10.03(c) hereof:
(1) develop or improve in any material respect or at any material cost
the Golf Course Land or construct any improvements or any building
on the Golf Course Land, including any excavation or site work on
the Golf Course Land,
(2) enter into any contract or agreement for such construction,
development or improvement or for any materials, supplies or labor
necessary in connection with such construction, development or
improvement (other than a contract or agreement that is
conditional upon the release of the Holders' security interests in
the Golf Course Land), or
(3) incur any Indebtedness, the proceeds of which are expected to be
used, or are used, for the construction, development or
improvement of the Golf Course Land; provided, however, Wynn Las
Vegas or any of its Restricted Subsidiaries may incur such
Indebtedness pursuant to clause (8) of Section 4.09(b).
(b) Notwithstanding anything herein or in Section 4.22(a), Wynn Las
Vegas and its Restricted Subsidiaries may:
(1) develop and construct the Golf Course as contemplated by
the Golf Course Lease and the Plans and Specifications prior to the
Phase I Final Completion Date,
(2) maintain or repair the Golf Course on the Golf Course
Land,
(3) make improvements to the Golf Course that enhance its use
as a golf course for the benefit of the Projects,
(4) reconfigure certain portions of the Golf Course in
connection with the release of the Home Site Land in accordance with
the provisions of Sections 10.03(b), 10.03(c), 10.03(d) and 10.03(e)
hereof,
(5) in the event of loss or damage to the Phase II Land or
the improvements thereon, rebuild or repair the Phase II Land and the
improvements thereon to the extent permitted by the provisions of
Section 4.16 hereof,
(6) construct, develop or improve the Golf Course Land for
the purpose of constructing the Projects as contemplated by the Phase
I Plans and Specifications, the Phase II Plans and Specifications or
the Disbursement Agreement,
(7) undertake Government Transfers,
(8) develop the Phase III Project on the Golf Course Land in
the event that (a) the Golf Course Land has not been released as
described in Section 10.03(c) hereof and (b) Wynn Las Vegas or any of
its Restricted Subsidiaries incurs the Permitted Debt of the type
described in clause (8) of Section 4.09(b) hereof; and
(9) have Permitted Liens of the type described in clause (12)
of the definition of "Permitted Liens."
Section 4.23 Restrictions on Payments of Management Fees.
Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(a) pay Management Fees:
(1) to the extent such payment would cause the Consolidated
Leverage Ratio of the Issuers and the Restricted Subsidiaries for the
most recently ended four full fiscal quarters of Wynn Las Vegas for
which internal financial statements are available immediately
preceding the date on which such Management Fee is proposed to be paid
to be greater than 3.5 to 1.0 (calculated on a pro forma basis, giving
effect to the payment of the Management Fees proposed to be paid and
any Indebtedness proposed to be incurred to finance the payment of
such Management Fees); or
(2) if at the time of payment of such Management Fees, a
Default or an Event of Default has occurred and is continuing or shall
occur as a result thereof; or
(b) prepay any Management Fees.
Any Management Fees not permitted to be paid during a particular
12-month period pursuant to this Section 4.23 shall be deferred and shall
accrue. Such accrued and unpaid Management Fees may be paid in any
subsequent 12-month period to the extent such payment would be permitted
under this Section 4.23 and the Management Fees Subordination Agreement.
Section 4.24 Limitation on Issuances and Sales of Equity Interests in
Wholly Owned Restricted Subsidiaries.
Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, transfer, convey, sell, lease or otherwise
dispose of any Equity Interests in any Wholly Owned Restricted Subsidiaries
of Wynn Las Vegas to any Person (other than Wynn Las Vegas or a Wholly
Owned Restricted Subsidiary of Wynn Las Vegas that is a Guarantor), unless:
(a) such transfer, conveyance, sale, lease or other disposition is of
all the Equity Interests in such Wholly Owned Restricted Subsidiary; and
(b) the cash Net Proceeds from such transfer, conveyance, sale, lease
or other disposition are applied in accordance with Section 4.10 hereof.
In addition, Wynn Las Vegas shall not permit any Wholly Owned
Restricted Subsidiary of Wynn Las Vegas to issue any of its Equity
Interests (other than, if necessary, shares of its Capital Stock
constituting directors' qualifying shares) to any Person other than to Wynn
Las Vegas or a Wholly Owned Restricted Subsidiary of Wynn Las Vegas that is
a Guarantor.
Section 4.25 Amendments to Certain Agreements.
(a) On or prior to the Phase I Final Completion Date, except as
contemplated by the Disbursement Agreement, Wynn Las Vegas shall not, and shall
not permit any of its Restricted Subsidiaries to, amend, modify, waive or
otherwise change, or consent or agree to any amendment, modification, waiver or
other change to, or otherwise fail to enforce, or terminate or abandon, any of
the provisions of the Construction Contract, the Construction Contract
Guarantee, the Design/Build Contract, the Golf Course Construction Contract,
the Golf Course Design Services Agreement or any Payment and Performance Bond,
in each case, if such amendment, modification, waiver or other change, failure
to enforce, termination or abandonment (individually or collectively with all
such amendments, modifications, waivers and other changes, failures to enforce,
terminations or abandonments taken as a whole) would have a material adverse
affect on the ability of Wynn Las Vegas or any of its Restricted Subsidiaries
to develop, construct or operate the Phase I Project.
(b) Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, amend, modify, waive or otherwise change, or
consent or agree to any amendment, modification, waiver or other change to, or
otherwise fail to enforce, or terminate or abandon, any of the provisions of
any Affiliate Agreement if such amendment, modification, waiver or other
change, failure to enforce, termination or abandonment (individually or
collectively with all such amendments, modifications, waivers and other
changes, failures to enforce, terminations or abandonments taken as a whole)
would:
(1) increase the amounts payable to Persons other than Wynn
Las Vegas and its Restricted Subsidiaries thereunder by Wynn Las Vegas
or any of its Restricted Subsidiaries,
(2) change the dates on which such amounts are to be paid to
dates earlier than those set forth in such agreement, as in effect on
the date of this Indenture,
(3) reduce the services provided thereunder to Wynn Las Vegas
or any of its Restricted Subsidiaries unless accompanied by a
corresponding decrease in the amounts payable by Wynn Las Vegas or any
of its Restricted Subsidiaries thereunder,
(4) materially impair the rights or remedies of the Holders
of the Notes thereunder or under this Indenture or the Collateral
Documents, or
(5) materially impair the development, use or operation of
the Projects.
Any other amendment, modification, waiver or other change to, or any
failure to enforce, or termination or abandonment of the provisions of any
Affiliate Agreement shall be made in accordance with the requirements of
Section 4.11(a) hereof.
Notwithstanding the foregoing, in connection with any development,
improvement or construction of the Golf Course Land as provided in Section
4.22(b)(8) hereof, or any release of all or any portion of the Golf Course Land
as provided in Sections 10.03(b), 10.03(c), 10.03(d) or 10.03(e), Wynn Las
Vegas and its Restricted Subsidiaries may terminate (in the case of Sections
10.03(b) or 10.03(c)) or amend (in the case of Sections 10.03(d) or 10.03(e))
the Golf Course Lease, the Access Easement Agreement or any other agreement
with respect to the Golf Course Land or any other related assets or property.
Section 4.26 Amendments to Operating Agreements and Charter Documents.
Except in connection with a Permitted C-Corp. Conversion, Wynn Las
Vegas shall not, and shall not permit any of its Restricted Subsidiaries
to:
(a) dissolve,
(b) with respect to any entity that is a limited liability company,
amend, modify or otherwise change, its operating agreement or other charter
documents, or otherwise permit any such agreement or document, to provide that
the death, retirement, resignation, expulsion, bankruptcy, dissolution or
dissociation of a member of that limited liability company or any other event
affecting a member of that limited liability company either terminates the
status of that Person as a member of the limited liability company or causes
the limited liability company to be dissolved or its affairs wound up, or
(c) amend, modify or otherwise change the separateness covenants and
company restrictions in its operating agreement relating to conduct, or any
comparable provisions contained in its other charter documents, or fail to
include similar provisions in the operating agreement or other applicable
charter documents of any future Restricted Subsidiary.
Section 4.27 Insurance.
Wynn Las Vegas shall, and shall cause its Restricted Subsidiaries
to, maintain insurance with reputable and financially sound carriers
against such risks and in such amounts as are customarily carried by
similarly situated businesses, including, without limitation, property and
casualty insurance, so long as such insurance coverage (including
deductibles, retentions and self-insurance amounts) at all times complies
with the insurance coverage required under the Disbursement Agreement.
Section 4.28 Additional Collateral; Formation or Acquisition of Restricted
Subsidiaries, Designation of Unrestricted Subsidiaries as Restricted
Subsidiaries or Permitted C-Corp. Conversion.
Concurrently with (1) the formation or acquisition of any
Restricted Subsidiary of Wynn Las Vegas that becomes or is required under
the Credit Agreement to become a Guarantor of any of the obligations under
the Credit Agreement, (2) the designation of an Unrestricted Subsidiary of
Wynn Las Vegas as a Restricted Subsidiary, or (3) the conversion by Wynn
Las Vegas or any of its Restricted Subsidiaries as a subchapter "C"
corporation in a Permitted C-Corp. Conversion, Wynn Las Vegas shall, to the
extent not prohibited by Gaming Authorities or applicable Gaming Laws and
subject to the Intercreditor Agreement:
(a) (1) cause such Restricted Subsidiary or subchapter "C"
corporation (if such subchapter "C" corporation is not an Issuer) to
guarantee all obligations of the Issuers under thi9 s Indenture and
the Notes by executing and delivering to the Trustee a supplemental
indenture in the form of Exhibit F to this Indenture; or
(2) if such subchapter "C" corporation is an Issuer, cause
such subchapter "C" corporation to execute and deliver to the Trustee
(i) a supplemental indenture substantially in the form of Exhibit F
hereto, (ii) an assumption agreement unconditionally and irrevocably
assuming all of the right, title and interest of the Issuer that was
so reorganized as a subchapter "C" corporation in, to and under this
Indenture and the Notes, and (iii) replacement Notes for the Notes
previously issued by the Issuer that was so reorganized as a
subchapter "C" corporation to be issued to the Holders upon request
and the concurrent return by such Holders of the Notes previously
issued to them by the Issuer that was so reorganized as a "C"
corporation;
(b) cause such Restricted Subsidiary or subchapter "C" corporation to
execute and deliver to the Trustee, (a) an assumption agreement in the form of
Annex 1 to the Security Agreement (under which such Restricted Subsidiary or
subchapter "C" corporation shall grant a security interest to the Trustee in
those of its assets described in the Security Agreement), and (b) such Uniform
Commercial Code financing statements as are necessary to perfect the Trustee's
security interest in such assets;
(c) in the event such Restricted Subsidiary or subchapter "C"
corporation owns real property that (i) is contiguous to any real property
included in the Collateral or (ii) has a Fair Market Value in excess of $5.0
million in the aggregate or $2.5 million individually, cause such Restricted
Subsidiary or subchapter "C" corporation to execute and deliver to the Trustee:
(1) a deed of trust, substantially in the form of the Deeds
of Trust (with such modifications as are necessary to comply with
applicable law) (under which such Restricted Subsidiary or subchapter
"C" corporation shall grant a security interest to the Trustee in such
real property and any related fixtures),
(2) in the case of any such Restricted Subsidiary, title and
extended coverage insurance covering such real property in an amount
at least equal to the purchase price of such real property, and
(3) in the case of any such subchapter "C" corporation, an
agreement executed and delivered by the title company that issued the
title and extended coverage insurance covering the real property owned
by such subchapter "C" corporation naming such subchapter "C"
corporation as an additional insured under such insurance,
(d) promptly pledge, or cause to be pledged, to the Trustee (i) all of
the outstanding Capital Stock of such entity or subchapter "C" corporation
owned by Wynn Las Vegas or any of its Restricted Subsidiaries and (ii) all of
the outstanding Capital Stock owned by such Restricted Subsidiary or subchapter
"C" corporation, to secure Wynn Las Vegas' obligations under this Indenture and
the Notes or such Restricted Subsidiary's Guarantee obligations under the
applicable Security Agreement, as the case may be;
(e) promptly take, and cause such Restricted Subsidiary or subchapter
"C" corporation and each other Restricted Subsidiary to take all action
necessary or, in the opinion of the Trustee, desirable to perfect and protect
the security interests intended to be created by the Collateral Documents, as
modified under this Section 4.28; and
(f) promptly deliver to the Trustee such Opinions of Counsel, if any,
as the Trustee may reasonably require with respect to the foregoing (including
opinions as to enforceability and perfection of security interests).
Notwithstanding the foregoing, no Restricted Subsidiary shall be
required to take the actions specified in clauses (2) through (6) above
during any Collateral Release Period.
Section 4.29 Additional Collateral; Acquisition of Assets or Property.
At any time other than during a Collateral Release Period, and
concurrently with the acquisition by Wynn Las Vegas or any of its
Restricted Subsidiaries of any assets or property (other than a Subsidiary
of Wynn Las Vegas) that would constitute Collateral, to the extent not
prohibited by Gaming Authorities or applicable Gaming Laws and subject to
the Intercreditor Agreement, Wynn Las Vegas shall, and shall cause its
Restricted Subsidiaries to, cause the applicable entity to:
(a) in the case of the acquisition of personal property with an
aggregate fair market value in excess of $50,000 (other than Aircraft Assets)
for all such acquired personal property, execute and deliver to the Collateral
Agent such Uniform Commercial Code financing statements, if any, as are
necessary or, in the opinion of the Trustee, desirable to perfect and protect
the Trustee's security interest in such assets or property;
(b) in the case of the acquisition of real property, that (i) is
contiguous to any real property included in the Collateral or (ii) has a Fair
Market Value in excess of $5.0 million in the aggregate or $2.5 million
individually, execute and deliver to the Trustee:
(1) a deed of trust, substantially in the form of the Deeds
of Trust (with such modifications as are necessary to comply with
applicable law) (under which Wynn Las Vegas or such Restricted
Subsidiary shall grant a security interest to the Trustee in such real
property and any related fixtures), and
(2) title and extended coverage insurance covering such real
property in an amount at least equal to the purchase price of such
real property; and
(c) in the case of the acquisition of personal property
(other than personal property in which the Trustee has a perfected
security interest (subject only to Permitted Liens)) or real property
subject to clauses (a) and (b) above of this Section 4.29, as
applicable, promptly deliver to the Trustee such Opinions of Counsel,
if any, as the Trustee may reasonably require with respect to the
foregoing (including opinions as to enforceability and perfection of
security interests).
Section 4.30 Further Assurances.
Except during any Collateral Release Period, Wynn Las Vegas shall,
and shall cause its Restricted Subsidiaries to, execute and deliver such
additional instruments, certificates or documents, and take all such
actions as may be reasonably required from time to time in order to:
(a) carry out more effectively the purposes of the Collateral
Documents;
(b) create, grant, perfect and maintain the validity, effectiveness,
perfection and priority of any of the Collateral Documents and the Liens
created, or intended to be created, by the Collateral Documents; and
(c) ensure that any of the rights granted or intended to be granted to
the Trustee or any Holder under the Collateral Documents or under any other
instrument executed in connection therewith or granted to Wynn Las Vegas or any
of its Restricted Subsidiaries under the Collateral Documents or under any
other instrument executed in connection therewith are protected and enforced.
Upon the exercise by the Trustee or any Holder of any power,
right, privilege or remedy under this Indenture or any of the Collateral
Documents which requires any consent, approval, recording, qualification or
authorization of any governmental authority (including any Gaming
Authority), Wynn Las Vegas shall, and shall cause its Restricted
Subsidiaries to, execute and deliver all applications, certifications,
instruments and other documents and papers that may be required from Wynn
Resorts, Wynn Las Vegas or any of Wynn Las Vegas' Restricted Subsidiaries
for such governmental consent, approval, recording, qualification or
authorization.
Section 4.31 Payments for Consent.
Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid
any consideration to or for the benefit of any Holder of Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture, the Notes or the Collateral Documents unless
such consideration is offered to be paid and is paid to all Holders of
Notes that consent, waive or agree to amend in the time frame set forth in
the solicitation documents relating to such consent, waiver or agreement.
Section 4.32 Restrictions on Activities of Wynn Capital.
Wynn Capital shall not hold any material assets, hold any Equity
Interests, incur any Indebtedness, become liable for any obligations,
engage in any business activities or have any Subsidiaries. However, Wynn
Capital may incur Indebtedness to the extent that it is a co-obligor with
respect to Indebtedness which Wynn Las Vegas is permitted to incur under
this Indenture, but only if the Net Proceeds of such Indebtedness are
received by Wynn Las Vegas or one or more of Wynn Las Vegas' Wholly Owned
Restricted Subsidiaries other than Wynn Capital. At all times while Notes
issued under this Indenture remain outstanding, Wynn Capital shall maintain
a Board of Directors composed of individuals who serve on the Board of
Directors of Wynn Resorts, and such other disinterested or independent
members as the Board of Directors deems appropriate from time to time.
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
(a) Neither Issuer may, directly or indirectly, (1) consolidate or
merge with or into another Person (whether or not such Issuer is the surviving
entity) or (2) sell, assign, transfer, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions, to another Person, unless:
(1) either (a) such Issuer is the surviving entity or (b) the
Person formed by or surviving any such consolidation or merger (if
other than such Issuer) or to which such sale, assignment, transfer,
conveyance or other disposition shall have been made is a corporation
organized or existing under the laws of the United States, any state
of the United States or the District of Columbia;
(2) the Person formed by or surviving any such consolidation
or merger (if other than such Issuer) or the Person to which such
sale, assignment, transfer, conveyance or other disposition shall have
been made assumes all the obligations of such Issuer under the Notes,
this Indenture, the Registration Rights Agreement and the Collateral
Documents pursuant to agreements reasonably satisfactory to the
Trustee;
(3) immediately after such transaction, no Default or Event
of Default exists;
(4) such transaction would not result in the loss or
suspension or material impairment of any Gaming License unless a
comparable new Gaming License is effective prior to or simultaneously
with such loss, suspension or material impairment;
(5) such Issuer or the Person formed by or surviving any such
consolidation or merger (if other than such Issuer), or to which such
sale, assignment, transfer, conveyance or other disposition shall have
been made:
(a) shall have Consolidated Net Worth immediately after the
transaction equal to or greater than the Consolidated Net Worth of
such Issuer immediately preceding the transaction (excluding the
effect of the related professional fees, commissions, sales and other
taxes, and other transactional costs that would otherwise reduce
Consolidated Net Worth); and
(b) shall, on the date of such transaction after giving pro
forma effect thereto and any related financing transactions as if the
same had occurred at the beginning of the applicable four-quarter
period, be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in Section 4.09(a) hereof;
(6) such transaction, at the time it is undertaken, would not
require any Holder or Beneficial Owner of Notes to obtain a Gaming
License or be qualified or found suitable under the law of any
applicable gaming jurisdiction; provided that such Holder or
Beneficial Owner would not have been required to obtain a Gaming
License or be qualified or found suitable under the laws of any
applicable gaming jurisdiction in the absence of such transaction.
In addition, no Issuer may, directly or indirectly, lease all or
substantially all of its properties or assets, taken as a whole, in one or
more related transactions, to any other Person.
Notwithstanding the provisions of this Section 5.01, Wynn Las
Vegas or any of its Restricted Subsidiaries that is not a subchapter "C"
corporation is permitted to convert into a corporation pursuant to a
Permitted C-Corp. Conversion.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially
all of the assets of either Issuer in a transaction that is subject to, and
that complies with the provisions of, Section 5.01 hereof, the successor
Person formed by such consolidation or into or with which such Issuer is
merged or to which such sale, assignment, transfer, lease, conveyance or
other disposition is made shall succeed to, and be substituted for (so that
from and after the date of such consolidation, merger, sale, lease,
conveyance or other disposition, the provisions of this Indenture referring
to such "Issuer" shall refer instead to the successor Person and not to
such Issuer), and may exercise every right and power of such Issuer under
this Indenture with the same effect as if such successor Person had been
named as such Issuer herein; provided, however, that the predecessor Issuer
shall not be relieved from the obligation to pay the principal of and
interest and premium, if any, on the Notes, except in the case of a sale of
all of such Issuer's assets in a transaction that is subject to, and that
complies with the provisions of Section 5.01 hereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Each of the following is an "Event of Default":
(a) the Issuers default for 30 days in the payment when due of
interest on, or Liquidated Damages, if any, with respect to, the Notes;
(b) the Issuers default in the payment when due (at maturity, upon
redemption, repurchase or otherwise) of the principal of, or premium, if any,
on the Notes;
(c) failure by Wynn Capital, Wynn Las Vegas or any of its Restricted
Subsidiaries:
(1) to comply with any payment obligations (including,
without limitation, obligations as to the timing or amount of such
payments) described under Sections 4.10, 4.15 or 4.16 hereof;
(2) to comply with Sections 4.07, 4.09 or 5.01 hereof;
(d) failure by Wynn Capital, Wynn Las Vegas or any of its Restricted
Subsidiaries for 60 days after receipt of written notice from the Trustee or
the Holders of at least 25% in aggregate principal amount of the Notes, if any,
then outstanding voting as a single class to comply with any of the other
agreements in this Indenture not set forth in Section 6.01(c) above;
(e) failure by Wynn Capital, Wynn Las Vegas or any of its Restricted
Subsidiaries, the Completion Guarantor or any other party to any Collateral
Documents (other than the Trustee or any representative of the lenders under
the Credit Agreement or other lenders party thereto) for 60 days after receipt
of written notice from the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes, if any, then outstanding voting as a single
class, to comply with any of its agreements, as applicable, in any Collateral
Document;
(f) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by Wynn Las Vegas or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by Wynn Las Vegas or any of
its Restricted Subsidiaries) whether such Indebtedness or guarantee now exists,
or is created after the date of this Indenture, if that default:
(1) is caused by a failure to pay principal of, or interest
or premium, if any, on such Indebtedness prior to the expiration of
the grace period provided in such Indebtedness on the date of such
default (a "Payment Default"); or
(2) results in the acceleration of such Indebtedness prior to
its express maturity,
and, in each case, the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which there
has been a Payment Default or the maturity of which has been so
accelerated, aggregates $20.0 million or more;
(g) failure by Wynn Capital, Wynn Las Vegas or any of its Restricted
Subsidiaries to pay final non-appealable judgments (not paid or covered by
insurance as to which the relevant insurance company has not denied
responsibility) aggregating in excess of $20.0 million, which judgments are not
paid, bonded, discharged or stayed for a period of 60 days;
(h) any event of default under any of the Collateral Documents or any
of the Collateral Documents shall cease, for any reason (other than pursuant to
their terms), to be in full force and effect, or Wynn Capital, Wynn Las Vegas
or any of its Restricted Subsidiaries or any Affiliate of any such Person or
any Person acting on behalf of any such Person, shall so assert as to any of
such Person's properties or assets, or any security interest created, or
purported to be created, by any of the Collateral Documents shall cease to be
enforceable and of the same effect and priority purported to be created by the
Collateral Documents;
(i) any material representation or warranty made or deemed made by
Wynn Capital, Wynn Las Vegas or any of its Restricted Subsidiaries in any
Collateral Document or that is contained in any certificate, document or
financial or other statement furnished by it at any time under or in connection
with any such Collateral Document shall prove to have been inaccurate in any
material respect on or as of the date made or deemed made; provided that the
inaccuracy of any representation or warranty contained only in the Disbursement
Agreement shall constitute an Event of Default hereunder only to the extent
such inaccuracy constitutes an event of default under a Disbursement Agreement;
(j) except as expressly permitted therein or by this Indenture, the
Completion Guarantee, the Construction Contract Guarantee, any Note Guarantee
issued by a Significant Restricted Subsidiary of Wynn Las Vegas shall be held
in any judicial proceeding to be unenforceable or invalid or shall cease for
any reason to be in full force and effect or the Completion Guarantor or any
Restricted Subsidiary of Wynn Las Vegas, or any Person acting on behalf of any
such Person, shall deny or disaffirm its obligations under its Note Guarantee;
(k) either Issuer, any Significant Restricted Subsidiary of Wynn Las
Vegas or any group of Restricted Subsidiaries of Wynn Las Vegas that, taken
together, would constitute a Significant Restricted Subsidiary of Wynn Las
Vegas pursuant to or within the meaning of Bankruptcy Law:
(1) commences a voluntary case,
(2) consents to the entry of an order for relief against it
in an involuntary case,
(3) consents to the appointment of a custodian of it or for
all or substantially all of its property,
(4) makes a general assignment for the benefit of its
creditors, or
(5) generally is not paying its debts as they become due; or
(l) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(1) is for relief against either Issuer or any Significant
Restricted Subsidiary of Wynn Las Vegas or any group of Restricted
Subsidiaries of Wynn Las Vegas that, taken together, would constitute
a Significant Restricted Subsidiary of Wynn Las Vegas in an
involuntary case;
(2) appoints a custodian of either Issuer or any Significant
Restricted Subsidiary of Wynn Las Vegas or any group of Restricted
Subsidiaries of Wynn Las Vegas that, taken together, would constitute
a Significant Restricted Subsidiary of Wynn Las Vegas or for all or
substantially all of the property of either Issuer or any Significant
Restricted Subsidiary of Wynn Las Vegas or any group of Restricted
Subsidiaries of Wynn Las Vegas that, taken together, would constitute
a Significant Restricted Subsidiary of Wynn Las Vegas; or
(3) orders the liquidation of either Issuer or any
Significant Restricted Subsidiary of Wynn Las Vegas or any group of
Restricted Subsidiaries of Wynn Las Vegas that, taken together, would
constitute a Significant Restricted Subsidiary of Wynn Las Vegas;
and the order or decree remains unstayed and in effect for 60 consecutive days;
or
(m) the Phase I Project has not achieved Phase I Completion on or
before the Phase I Outside Completion Deadline;
(n) after the Phase I Opening Date, revocation, termination,
suspension or other cessation of effectiveness of any Gaming License which
results in the cessation or suspension of gaming operations at any Gaming
Facility for a period of more than 90 consecutive days; or
(o) if Wynn Las Vegas ever fails to own, directly or indirectly, 100%
of the issued and outstanding Equity Interests of Wynn Capital.
Notwithstanding any provision of this Indenture to the contrary,
the following shall not be deemed to violate, or affect any calculations
under, any covenant contained in this Indenture: (1) the consummation by
the Issuers and the Restricted Subsidiaries on the date of this Indenture
of the transactions described in the Issuers' Offering Memorandum, dated as
of November 22, 2004, relating to the offering of the Initial Notes under
the captions "Proposed Financing Transactions" and "Use of Proceeds" and
(2) the distribution to Wynn Resorts, through one or more Wholly Owned
Subsidiaries of Wynn Resorts, of an amount equal the net cash proceeds
received by Wynn Las Vegas in respect of an unwind payment or termination
payment of the Hedging Obligations of Wynn Las Vegas in existence on the
date of this Indenture so long as such distribution is made within three
Business Days of the date of this Indenture.
Section 6.02 Acceleration.
In the case of an Event of Default specified in clause (k) or (l)
of Section 6.01 hereof, with respect to either Issuer, any Significant
Restricted Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Restricted Subsidiary, all
outstanding Notes shall become due and payable immediately without further
action or notice. If any other Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable
immediately. Upon any such declaration, the Notes shall become due and
payable immediately. The Holders of a majority in aggregate principal
amount of the then outstanding Notes by written notice to the Trustee may
on behalf of all of the Holders rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default (except nonpayment of
principal, interest or premium or Liquidated Damages, if any, that has
become due solely because of the acceleration) have been cured or waived.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium
and Liquidated Damages, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder of a Note in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default.
All remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount
of the then outstanding Notes by notice to the Trustee may, on behalf of
the Holders of all of the Notes, waive an existing Default or Event of
Default and its consequences hereunder, except a continuing Default or
Event of Default in the payment of the principal of, premium, if any, or
interest on, the Notes (including in connection with an offer to purchase);
provided, however, that the Holders of a majority in aggregate principal
amount of the then outstanding Notes may rescind an acceleration and its
consequences, including any related payment default that resulted from such
acceleration. Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
Subject to the Intercreditor Agreement, Holders of a majority in
principal amount of the then outstanding Notes may direct the time, method
and place of conducting any proceeding for exercising any remedy available
to the Trustee or exercising any trust or power conferred on it. However,
the Trustee may refuse to follow any direction that conflicts with law or
this Indenture that the Trustee determines may be unduly prejudicial to the
rights of other Holders of Notes or that may involve the Trustee in
personal liability.
Section 6.06 Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) such Holder of a Note gives to the Trustee written notice that an
Event of Default is continuing;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder or Holders offer and, if requested, provide to the
Trustee security or indemnity satisfactory to the Trustee against any loss,
liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(e) during such 60-day period, the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with such request within such 60-day period.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority
over another Holder of a Note.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Note to receive payment of principal, premium and
Liquidated Damages, if any, and interest on the Note, on or after the
respective due dates expressed in the Note (including in connection with an
offer to purchase), or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder; provided that a Holder shall
not have the right to institute any such suit for the enforcement of
payment if and to the extent that the institution or prosecution thereof or
the entry of judgment therein would, under applicable law, result in the
surrender, impairment, waiver or loss of the Lien of this Indenture upon
any property subject to such Lien.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs
and is continuing, the Trustee is authorized to recover judgment in its own
name and as trustee of an express trust against the Issuers for the whole
amount of principal of, premium and Liquidated Damages, if any, and
interest remaining unpaid on, the Notes and interest on overdue principal
and, to the extent lawful, interest and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings
relative to the Issuers (or any other obligor upon the Notes), its
creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable
on any such claims and any custodian in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee, and
in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.07 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
7.07 hereof out of the estate in any such proceeding, shall be denied for
any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and
other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium and Liquidated Damages, if any, and
interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal,
premium and Liquidated Damages, if any and interest, respectively; and
Third: to the Issuers or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of Notes pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07
hereof, or a suit by Holders of more than 10% in principal amount of the
then outstanding Notes.
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in its exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Collateral Documents,
and the Trustee need perform only those duties that are specifically
set forth in this Indenture and the Collateral Documents, and no
others, and no implied covenants or obligations shall be read into
this Indenture and the Collateral Documents against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture and the Collateral Documents. However, the Trustee
shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture and the
Collateral Documents.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this Section 7.01(c) does not limit the effect of
paragraph (b) of this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture or the Collateral Documents shall
require the Trustee to expend or risk its own funds or incur any liability. The
Trustee shall be under no obligation to exercise any of its rights and powers
under this Indenture and the Collateral Documents at the request of any
Holders, unless such Holder shall have offered to the Trustee security and
indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Issuers. Money held
in trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture or the
Collateral Documents, any demand, request, direction or notice from the Issuers
shall be sufficient if signed by an Officer of either Issuer.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture or the Collateral Documents at
the request or direction of any of the Holders unless such Holders have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
(g) Unless it has knowledge of a Default or Event of Default, and
except as otherwise expressly provided herein, the Trustee shall have no duty
to inquire as to the performance of the Issuers with respect to the covenants
contained in Articles 4 and 5 hereof.
(h) The Trustee shall not be deemed to have knowledge of an Event of
Default except (i) any Default or Event of Default occurring pursuant to
Sections 6.01(a) and (b) hereof or (ii) any Default or Event of Default of
which the Trustee shall have received written notification or obtained actual
knowledge thereof.
Section 7.03 Individual Rights of Trustee.
The Trustee, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with the Issuers or
any Affiliate of the Issuers with the same rights it would have if it were
not Trustee. However, in the event that the Trustee acquires any
conflicting interest it must eliminate such conflict within 90 days, apply
to the SEC for permission to continue as trustee (if this Indenture has
been qualified under the TIA) or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and
7.11 hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the
Notes, it shall not be accountable for the Issuers' use of the proceeds
from the Notes or any money paid to the Issuers or upon the Issuers'
direction under any provision of this Indenture, it shall not be
responsible for the use or application of any money received by any Paying
Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other
document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail a notice of the Default
or Event of Default to Holders within 90 days after it occurs. Except in
the case of a Default or Event of Default in payment of principal of,
premium or Liquidated Damages, if any, or interest on, any Note, the
Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice
is in the interests of the Holders of the Notes.
Section 7.06 Reports by Trustee to Holders of the Notes.
(a) Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA ss. 313(a) (but if no
event described in TIA ss. 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA ss. 313(b)(2). The Trustee shall also transmit by mail
all reports as required by TIA ss. 313(c).
(b) A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed by the Trustee to the Issuers and filed by the Trustee
with the SEC and each stock exchange on which the Notes are listed in
accordance with TIA ss. 313(d). The Issuers shall promptly notify the Trustee
when the Notes are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
(a) The Issuers shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuers shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred
or made by it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
(b) The Issuers and the Guarantors shall indemnify the Trustee against
any and all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture and the Collateral Documents, including the costs and expenses of
enforcing this Indenture against the Issuers and the Guarantors (including this
Section 7.07) and defending itself against any claim (whether asserted by the
Issuers, the Guarantors or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder or thereunder, respectively, except to the extent any such loss,
liability or expense may be attributable to its negligence or bad faith. The
Trustee shall notify the Issuers promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Issuers shall not relieve
the Issuers or any of the Guarantors of their obligations hereunder. The
Issuers or such Guarantor shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Issuers
shall pay the reasonable fees and expenses of such counsel. Neither the Issuers
nor any Guarantor need pay for any settlement made without its consent, which
consent shall not be unreasonably withheld.
(c) The obligations of the Issuers and the Guarantors under this
Section 7.07 shall survive the satisfaction and discharge of this Indenture.
(d) To secure the Issuers' and the Guarantors' payment obligations in
this Section 7.07, the Trustee shall have a Lien prior to the Notes on all
money or property held or collected by the Trustee, except that held in trust
to pay principal and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(k) or (l) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
(f) The Trustee shall comply with the provisions of TIA ss. 313(b)(2)
to the extent applicable.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Issuers in writing. The
Holders of a majority in principal amount of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Issuers in writing. The
Issuers may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a custodian or public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuers shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Issuers.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Issuers,
or the Holders of at least 10% in principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(e) If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with Section 7.10, such Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
(f) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Issuers' obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United
States of America or of any state thereof that is authorized under such
laws to exercise corporate trustee power, that is subject to supervision or
examination by federal or state authorities and that has a combined capital
and surplus of at least $100 million as set forth in its most recent
published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to
TIA ss. 310(b).
Section 7.11 Preferential Collection of Claims Against Issuers.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuers may, at the option of their respective Boards of
Directors evidenced by a resolution set forth in an Officers' Certificate
of each Issuer, at any time, elect to have either Section 8.02 or 8.03
hereof be applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Issuers' exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Issuers shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed
to have been discharged from their obligations with respect to all
outstanding Notes, each of the Guarantors shall be deemed to be discharged
from their obligations with respect to their Note Guarantees and the
Issuers and each of the Guarantors shall be deemed to be discharged from
their obligations with respect to the Collateral Documents on the date the
conditions set forth below are satisfied (hereinafter, "Legal Defeasance").
For this purpose, Legal Defeasance means that the Issuers and each of the
Guarantors shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes (including the Note
Guarantees), which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of this
Indenture referred to in Sections 8.02(a) and (b) below, and to have
satisfied all their other obligations under such Notes, the Note
Guarantees, the Collateral Documents, and this Indenture (and the Trustee,
on demand of and at the expense of the Issuers, shall execute proper
instruments acknowledging the same), except for the following provisions
which shall survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of outstanding Notes to receive payments in
respect of the principal of, or interest or premium and Liquidated Damages, if
any, on such Notes when such payments are due from the trust referred to in
Section 8.04 hereof;
(b) the Issuers' obligations with respect to such Notes under Article
2 and Section 4.02 hereof;
(c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Issuers' and the Guarantors' obligations in connection
therewith; and
(d) this Article 8.
Subject to compliance with this Article 8, the Issuers may
exercise their option under this Section 8.02 notwithstanding the prior
exercise of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Issuers' exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Issuers, the Restricted Subsidiaries
of Wynn Las Vegas and any Guarantors shall, subject to the satisfaction of
the conditions set forth in Section 8.04 hereof, be released from each of
their obligations under the covenants contained in Sections 4.07, 4.08,
4.09, 4.10, 4.11, 4.12, 4.13 and 4.15 through 4.32 inclusive hereof and
clause (5) of Section 5.01(a) hereof with respect to the outstanding Notes
on and after the date the conditions set forth in Section 8.04 hereof are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of
any thereof) in connection with such covenants, but shall continue to be
deemed "outstanding" for all other purposes hereunder (it being understood
that such Notes shall not be deemed outstanding for accounting purposes).
For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes and Note Guarantees, the Issuers and each of the
Guarantors released may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any
such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of
Default under Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes and Note Guarantees shall be
unaffected thereby. In addition, upon the Issuers' exercise under Section
8.01 hereof of the option applicable to this Section 8.03 hereof, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(c) through 6.01(h), Section 6.01(j) and Sections 6.01(n)
through 6.01(p) hereof shall not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance
under either Section 8.02 or 8.03 hereof:
(a) the Issuers must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in U.S. dollars, non-callable Government
Securities, or a combination of cash in U.S. dollars and non-callable
Government Securities, in amounts as shall be sufficient, in the opinion of a
nationally recognized investment bank, appraisal firm, or firm of independent
public accountants, to pay the principal of, or interest and premium and
Liquidated Damages, if any, on the outstanding Notes on the stated maturity or
on the applicable redemption date, as the case may be, and the Issuers must
specify whether the Notes are being defeased to maturity or to a particular
redemption date;
(b) in the case of an election under Section 8.02 hereof, the Issuers
must deliver to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee confirming that (1) the Issuers have received from, or there has been
published by, the Internal Revenue Service a ruling or (2) since the date of
this Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the outstanding Notes shall not
recognize income, gain or loss for federal income tax purposes as a result of
such Legal Defeasance and shall be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the Issuers
have delivered to the Trustee an Opinion of Counsel reasonably acceptable to
the Trustee confirming that the Holders of the outstanding Notes shall not
recognize income, gain or loss for federal income tax purposes as a result of
such Covenant Defeasance and shall be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default has occurred and is continuing on
the date of such deposit (other than a Default or Event of Default resulting
from the borrowing of funds to be applied to such deposit) and the deposit
shall not result in a breach or violation of, or constitute a default under,
any other instrument to which either Issuer, any Restricted Subsidiary or any
Guarantor is a party or by which either Issuer, any Restricted Subsidiary or
any Guarantor is bound;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under any material agreement or
instrument (other than this Indenture) to which either Issuer, any Restricted
Subsidiary or any Guarantor is a party or by which any such Person is bound;
(f) in the case of an election under Section 8.02 hereof, the Issuers
must deliver to the Trustee an Opinion of Counsel to the effect that, assuming
no intervening bankruptcy of the Issuers or any Guarantor between the date of
deposit and the 91st day following the deposit and assuming that no Holder of
Notes is an "insider" of either Issuer under applicable bankruptcy law, after
the 91st day following the deposit, the trust funds shall not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally;
(g) the Issuers must deliver to the Trustee an Officers' Certificate
stating that the deposit was not made by the Issuers with the intent of
preferring the Holders of Notes over the other creditors of the Issuers with
the intent of defeating, hindering, delaying or defrauding creditors of the
Issuers or others; and
(h) the Issuers must deliver to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent relating
to the Legal Defeasance or the Covenant Defeasance have been complied with.
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and Government
Securities (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.05,
the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Issuers
acting as Paying Agent) as the Trustee may determine, to the Holders of
such Notes of all sums due and to become due thereon in respect of
principal, premium and Liquidated Damages, if any, and interest, but such
money need not be segregated from other funds except to the extent required
by law.
The Issuers shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the
principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the
outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary, the
Trustee shall deliver or pay to the Issuers from time to time upon the
request of the Issuers any money or non-callable Government Securities held
by it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 8.04(b) hereof), are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to Issuers.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Issuers, in trust for the payment of the principal of, premium
or Liquidated Damages, if any, or interest on any Note and remaining
unclaimed for two years after such principal, premium or Liquidated
Damages, if any, or interest has become due and payable shall be paid to
the Issuers on its request or (if then held by the Issuers) shall be
discharged from such trust; and the Holder of such Note shall thereafter be
permitted to look only to the Issuers for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Issuers as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, may at the expense of the
Issuers cause to be published once, in the New York Times (national
edition) and The Wall Street Journal (national edition), notice that such
money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such notification or
publication, any unclaimed balance of such money then remaining shall be
repaid to the Issuers.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02
or 8.03 hereof, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Issuers' or the Guarantors' obligations under this
Indenture, the Notes, the Note Guarantees and the Collateral Documents shall be
revived and reinstated as though no deposit had occurred pursuant to Section
8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the
case may be; provided, however, that, if the Issuers make any payment of
principal of, premium or Liquidated Damages, if any, or interest on any Note
following the reinstatement of its obligations, the Issuers shall subrogated to
the rights of the Holders of such Notes to receive such payment from the money
held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, without the
consent of any Holder, the Issuers, any Restricted Subsidiary or any
Guarantor and the Trustee may amend or supplement this Indenture, the
Notes, the Note Guarantees or the Collateral Documents to:
(a) cure any ambiguity, defect or inconsistency;
(b) provide for uncertificated Notes in addition to or in place of
certificated Notes;
(c) provide for the assumption of the Issuers' or any Guarantor's
obligations to the Holders of the Notes and Note Guarantees by a successor to
the Issuers or such Guarantor, as the case may be, in the case of a merger or
consolidation or sale of all or substantially all of the Issuers' or such
Guarantor's assets pursuant to Article 5 hereof;
(d) make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
legal rights hereunder of any such Holder;
(e) comply with requirements of the SEC in order to effect or maintain
the qualification of this Indenture under the TIA;
(f) provide for the issuance of Additional Notes in accordance with
the limitations set forth in this Indenture as of the date of this Indenture;
(g) allow any Guarantor to execute a supplemental indenture and/or a
Note Guarantee with respect to the Notes; or
(h) enter into additional or supplemental Collateral Documents or
Guarantees or an intercreditor agreement with respect thereto.
Upon request of the Issuers, the Trustee will enter into
amendments, restatements and modifications of the Collateral Documents from
time to time in connection with the grant of any Permitted Liens; provided,
however, that any such amended, restated or modified Collateral Documents
shall contain terms no less favorable to the Trustee or the Holders of the
Notes than the terms contained in the Collateral Documents being amended,
restated or modified (except as expressly provided for in this Indenture);
provided, further, that any such amendment, restatement or modification
does not otherwise adversely affect the rights or remedies of the Trustee
or the Holders of the Notes in any material respect (except as expressly
provided for in this Indenture).
Upon the request of the Issuers accompanied by a resolution of
their respective Boards of Directors authorizing the execution of any such
amended or supplemental indenture, and upon receipt by the Trustee of the
documents described in Section 7.02 hereof, the Trustee shall join with the
Issuers and the Guarantors in the execution of any amended or supplemental
indenture authorized or permitted by the terms of this Indenture and to
make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental indenture that affects its own rights, duties
or immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Issuers, the
Guarantors and the Trustee may amend or supplement this Indenture
(including, without limitation, Section 3.10, 4.10, 4.15 and 4.16 hereof)
the Notes, the Note Guarantees and the Collateral Documents with the
consent of the Holders of at least a majority in principal amount of the
then outstanding Notes (including, without limitation, Additional Notes, if
any) voting as a single class (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes), and, subject to Sections 6.04 and 6.07 hereof, any
existing Default or Event of Default (other than a Default or Event of
Default in the payment of the principal of, premium or Liquidated Damages,
if any, or interest on the Notes, except a payment default resulting from
an acceleration that has been rescinded) or compliance with any provision
of this Indenture, the Notes, the Note Guarantees or the Collateral
Documents may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes (including, without
limitation, Additional Notes, if any) voting as a single class (including,
without limitation, consents obtained in connection with purchase of, or a
tender offer or exchange offer for, the Notes).
Upon the request of the Issuers accompanied by a resolution of
their respective Boards of Directors authorizing the execution of any such
amended or supplemental Indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of Notes
as aforesaid, and upon receipt by the Trustee of the documents described in
Section 7.02 hereof, the Trustee shall join with the Issuers and the
Guarantors in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture directly affects the
Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not
be obligated to, enter into such amended or supplemental Indenture.
It is not necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it is sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Issuers shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver.
Any failure of the Issuers to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
amended or supplemental indenture or waiver. Subject to Sections 6.04 and
6.07 hereof, the Holders of a majority in aggregate principal amount of the
Notes then outstanding voting as a single class may waive compliance in a
particular instance by the Issuers with any provision of this Indenture or
the Notes or by the Guarantors with any provision of the Note Guarantees.
However, without the consent of each Holder affected or, in the case of
clauses (h), (i) and (j) below only, without the consent of the Holders of
at least 95% in the aggregate principal amount of the Notes then
outstanding, an amendment, supplement or waiver under this Section 9.02 may
not (with respect to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must consent to
an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note
or alter or waive any of the provisions with respect to the redemption of the
Notes, except as provided above with respect to Sections 3.10, 4.10, 4.15 and
4.16 hereof;
(c) reduce the rate of or change the time for payment of interest,
including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of principal
of, or interest or premium or Liquidated Damages, if any, on the Notes (except
a rescission of acceleration of the Notes by the Holders of at least a majority
in aggregate principal amount of the then outstanding Notes and a waiver of the
payment default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in the Notes;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive payments
of principal of, or interest or premium or Liquidated Damages, if any, on the
Notes;
(g) waive a redemption payment with respect to any Note (other than a
payment required by Sections 3.10, 4.10, 4.15 and 4.16 hereof);
(h) release all or substantially all of the Collateral or release any
Material Project Assets from the Collateral, in each case, except in accordance
with the provisions of the Collateral Documents;
(i) release any Guarantor from any of its obligations under its Note
Guarantee or this Indenture if the assets or properties of that Guarantor (1)
constitute all or substantially all of the Collateral or (2) include Material
Project Assets, except in accordance with the terms of this Indenture;
(j) amend the provisions of Section 10.03 hereof; or
(k) make any change in the foregoing amendment and waiver provisions.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall
be set forth in a amended or supplemental Indenture that complies with the
TIA as then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder
of a Note and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note, even if notation
of the consent is not made on any Note. However, any such Holder of a Note
or subsequent Holder of a Note may revoke the consent as to its Note if the
Trustee receives written notice of revocation before the date the waiver,
supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds
every Holder.
Section 9.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Issuers in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. The Issuers and the Guarantors may not sign an amendment or
supplemental indenture until their respective Boards of Directors approve
it. In executing any amended or supplemental indenture, the Trustee shall
be entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon, in addition to the documents required by Section
14.04 hereof, an Officers' Certificate and an Opinion of Counsel stating
that the execution of such amended or supplemental indenture is authorized
or permitted by this Indenture.
ARTICLE 10.
COLLATERAL AND SECURITY
Section 10.01 Collateral Documents.
The due and punctual payment of the principal of and interest and
premium and Liquidated Damages, if any, on the Notes when and as the same shall
be due and payable, whether on an interest payment date, at maturity, by
acceleration, repurchase, redemption or otherwise, and interest on the overdue
principal of and interest and premium and Liquidated Damages (to the extent
permitted by law), if any, on the Notes and performance of all other
obligations of the Issuers and the Guarantors to the Holders of Notes or the
Trustee under this Indenture and the Notes, according to the terms hereunder or
thereunder, are secured as provided in the Collateral Documents which the
Issuers and the Guarantors have entered into simultaneously with the execution
of this Indenture (including, without limitation, the Collateral Documents
listed on Exhibit H hereto). Each Holder of Notes, by its acceptance thereof,
consents and agrees to the terms of the Collateral Documents (including,
without limitation, the provisions providing for foreclosure and release of
Collateral and limitations on exercise of rights and remedies) as the same may
be in effect or may be amended from time to time in accordance with the terms
of this Indenture and the Collateral Documents and authorizes and directs the
Trustee to enter into the Collateral Documents and to perform its obligations
and exercise its rights thereunder in accordance therewith. The Issuers and
Guarantors shall deliver to the Trustee copies of all documents delivered to
the Collateral Agent pursuant to the Collateral Documents and the Issuers shall
do or cause to be done all such acts and things as may be necessary or proper,
or as may be required by the provisions of the Collateral Documents, to assure
and confirm to the Trustee the security interests in the Collateral
contemplated hereby, by the Collateral Documents or any part thereof, as from
time to time constituted, so as to render the same available (subject to the
terms of the Intercreditor Agreement) for the security and benefit of this
Indenture, the Notes and the Note Guarantees secured by the Collateral
Documents, according to the intent and purposes therein expressed. Subject to
the terms of the Intercreditor Agreement, the Issuers shall take, and shall
cause the Restricted Subsidiaries that are party to one or more Collateral
Documents to take, upon request of the Trustee, any and all actions reasonably
required to cause the Collateral Documents to create and maintain, as security
for the Obligations of the Issuers hereunder and of the Guarantors under the
Note Guarantees, a valid and enforceable perfected Lien of the priority
required by the Collateral Documents in and on all the Collateral, in favor of
the Trustee for the benefit of the Holders of Notes, superior to and prior to
the rights of all third Persons, in each case, equal and ratable with the Liens
securing the obligations under the Credit Agreement and subject to Permitted
Liens and the terms of the Intercreditor Agreement.
Section 10.02 Recording and Opinions.
(a) The Issuers shall furnish to the Trustee simultaneously with the
execution and delivery of this Indenture an Opinion of Counsel either:
(1) stating that, in the opinion of such counsel, all action
has been taken with respect to the recording, registering and filing
of this Indenture, financing statements or other instruments necessary
to make effective the Lien intended to be created by the Collateral
Documents, and reciting with respect to the security interests in the
Collateral, the details of such action; or
(2) stating that, in the opinion of such counsel, no such
action is necessary to make such Lien effective.
(b) The Issuers shall furnish to the Trustee within 30 days after
December 1 in each year beginning with December 30, 2005, an Opinion of
Counsel, dated as of such date, either:
(1) (A) stating that, in the opinion of such counsel, action
has been taken with respect to the recording, registering, filing,
re-recording, re-registering and re-filing of all supplemental
indentures, financing statements, continuation statements or other
instruments of further assurance as is necessary to maintain the Lien
of the Collateral Documents and reciting with respect to the security
interests in the Collateral the details of such action or referring to
prior Opinions of Counsel in which such details are given, and (B)
stating that, in the opinion of such counsel, based on relevant laws
as in effect on the date of such Opinion of Counsel, all financing
statements and continuation statements have been executed and filed
that are necessary as of such date and during the succeeding 12 months
fully to preserve and protect, to the extent such protection and
preservation are possible by filing, the rights of the Holders of
Notes and the Trustee hereunder and under the Collateral Documents
with respect to the security interests in the Collateral;
(2) stating that, in the opinion of such counsel, no such
action is necessary to maintain such Lien and assignment.
(c) The Issuers shall otherwise comply with the provisions of TIA
ss.314(b).
Section 10.03 Release of Collateral.
(a) Subject to the other provisions of this Section 10.03 and the
terms of the Intercreditor Agreement and the other Collateral Documents, the
Trustee will determine the circumstances and manner in which the Collateral
will be disposed of, including the determination of whether to release all of
the Collateral from the security interests created by the Collateral Documents
and whether to foreclose on the Collateral following an Event of Default.
Collateral may be released from the Liens and security interests created by the
Collateral Documents at any time or from time to time in accordance with the
provisions of the Collateral Documents and as provided in this Section 10.03.
Subject to the provisions of the Intercreditor Agreement, upon the request of
the Issuers pursuant to an Officers' Certificate certifying that all terms for
release and conditions precedent under this Indenture and under any applicable
Collateral Document have been met and specifying (1) the identity of the
Collateral to be released and (2) the provisions of this Indenture or the
applicable Collateral Document which authorize such release, the Trustee shall
release the Liens in favor of the Trustee (at the sole cost and expense of the
Issuers) on:
(1) all Collateral that is contributed, sold, leased,
conveyed, transferred or otherwise disposed of (a) in an Asset Sale,
Permitted Dispositions, Permitted Investment or Restricted Payment in
accordance with this Indenture and the Collateral Documents, (b) to an
Unrestricted Subsidiary of Wynn Las Vegas in accordance with this
Indenture and the Collateral Documents or (c) as expressly permitted
by the Collateral Documents;
(2) all Collateral that is condemned, seized or taken by the
power of eminent domain or otherwise confiscated pursuant to an Event
of Loss; provided that the Net Loss Proceeds, if any, from the Event
of Loss are or shall be applied in accordance with Sections 3.10 and
4.16 hereof;
(3) all Collateral (except as provided in Articles 8 and 12
of this Indenture) upon Legal Defeasance as provided for in Section
8.02 hereof or satisfaction and discharge of this Indenture as
provided for Section 12.01 hereof;
(4) all Collateral upon the payment in full in cash in
immediately available funds of all Obligations of the Issuers and the
Guarantors under this Indenture, the Notes, the Note Guarantees and
the Collateral Documents;
(5) except as otherwise provided in this Indenture or the
Collateral Documents, Collateral of a Guarantor whose Note Guarantee
is released or terminated pursuant to the terms of this Indenture;
(6) the Released Assets;
(7) Government Transfers consisting of transfers of fee
interests in real property;
(8) in connection with any sale, lease or other disposition
of any assets in connection with (i) any timeshare, interval ownership
or similar development or (ii) any condominium or similar development
with respect to the Phase III Project, on any assets or interests in
any assets so long as the lenders under the Credit Agreement
concurrently release their security interest in such assets, so long
as no Default or Event of Default exists or is continuing immediately
prior to or after giving effect to such release; and
(9) any Water Rights covered by or relating to any water
permits so long as such Water Rights are covered by or related to
other water permits owned by Wynn Las Vegas or any of its Restricted
Subsidiaries.
(b) The Trustee shall (i) release (at the sole cost and expense of the
Issuers) the Liens granted by Wynn Las Vegas and the Restricted Subsidiaries in
favor of the Trustee for the benefit of the Holders on all of the Collateral,
including the Golf Course Land and (ii) permit the termination of the Golf
Course Lease and the Access Easement Agreement, so long as:
(1) the lenders under the Credit Agreement release their
first Liens on all of the Collateral (provided that it shall not be
deemed to be a release of the first priority Lien requiring the
automatic release of the Trustee's Liens (for the benefit of the
Holders) if the release of the first priority Liens securing the
Credit Agreement is the result of an extension, refinancing, renewal,
replacement, amendment and restatement, restatement, defeasance or
refunding (collectively, a "Refinancing") of the Credit Agreement and
as a result of which the first priority Liens in favor of the
administrative agent (for the benefit of the lenders under the Credit
Agreement) are terminated and/or replaced with Liens in favor of the
lenders or holders of such refinancing Indebtedness (or any agent on
their behalf));
(2) no Default or Event of Default has occurred and is
continuing;
(3) the Phase II Completion Date has occurred;
(4) no Second Mortgage Notes remain outstanding or the
indenture under which the Second Mortgage Notes were issued has been
satisfied and discharged;
(5) the lenders under all other outstanding secured
Indebtedness (other than Indebtedness incurred pursuant to clause (7)
of the definition of Permitted Debt) that is secured by any Collateral
release their security interest in such Collateral; and
(6) Wynn Las Vegas delivers an Officers' Certificate to the
Trustee confirming that the conditions in clauses (1), (2), (3), (4)
and (5) of this Section 10.03(b) have been satisfied.
Upon any such release of those security interests, the
disposition or transfer of such assets shall no longer be subject
to any of the restrictive covenants in this Indenture.
In the event that the Issuers or the Guarantors grant
Liens (other than Liens permitted under clause (25) of the
definition of Permitted Liens) to secure any other Indebtedness
(other than Indebtedness incurred pursuant to clause (7) of the
definition of Permitted Debt) after the Holders' security
interests in all of the Collateral has been released as set forth
in this Section 10.03(b), the Issuers or the Guarantors, as the
case may be, shall be required to grant security interests on the
same assets to secure the Issuers' obligations under the Notes and
the Guarantors' obligations under the Note Guarantees on an equal
and ratable basis with such other Indebtedness, so long as such
other Indebtedness is so secured.
(c) The Trustee shall (i) release (at the sole cost and expense of the
Issuers) the Liens granted by Wynn Las Vegas and the Restricted Subsidiaries in
favor of the Trustee for the benefit of the Holders on all of the Golf Course
Land and (ii) permit the termination of the Golf Course Lease and the Access
Easement Agreement, so long as:
(1) no Default or Event of Default exists or is continuing
immediately prior to or after giving effect to such release,
(2) the lenders under the Credit Agreement concurrently
release their first priority Liens on the Golf Course Land (provided
that it shall not be deemed to be a release of the first priority
Liens requiring the automatic release of the Trustee's Liens (for the
benefit of the Holders) if the release of the first priority Lien
securing the Credit Agreement is the result of a Refinancing of the
Credit Agreement and as a result of which the first priority Liens in
favor of the administrative agent (for the benefit of the lenders
under the Credit Agreement) are terminated and/or replaced with Liens
in favor of the lenders or holders of such refinancing Indebtedness
(or any agent on their behalf)),
(3) the Phase II Completion Date has occurred;
(4) both immediately prior to the release of the security
interest, and after giving pro forma effect to such release, Wynn Las
Vegas' and its Restricted Subsidiaries' total debt does not exceed 6.5
times Consolidated EBITDA for the four full fiscal quarters
immediately preceding such release;
(5) Wynn Las Vegas delivers an Officers' Certificate
(including supporting calculations in reasonable detail) to the
Trustee confirming that the conditions in clauses (1), (2), (3) and
(4) of this Section 10.03(c) have been satisfied.
Notwithstanding the foregoing, if Wynn Las Vegas incurs
debt to finance the project costs related to the building of a
project on the Golf Course Land (the "Phase III Project") pursuant
to clause (8) of Section 4.09(b) hereof, then the security
interest in the Golf Course Land may not be released without first
obtaining the consent of 90% of the Holders of the Notes.
Upon any such release of those security interests, the
disposition or transfer of such assets shall no longer be subject
to any of the restrictive covenants in this Indenture.
(d) The Trustee shall (i) release (at the sole cost and expense of the
Issuers) the Liens granted by Wynn Las Vegas and the Restricted Subsidiaries in
favor of the Trustee for the benefit of the Holders in the Home Site Land and
(ii) permit the amendment of the Golf Course Lease and the Access Easement
Agreement to contemplate the release of the Home Site Land, if the lenders
under the Credit Agreement concurrently release their first priority Liens on
the Home Site Land, so long as no Default or Event of Default exists or is
continuing immediately prior to or after giving effect to such release;
provided that it shall not be deemed to be a release of such first priority
Liens requiring the release by the Trustee of its Liens (for the benefit of the
Holders) on the Home Site Land if the release of such first priority Liens is
as a result of a Refinancing of the Credit Agreement, as a result of which the
first priority Liens in favor of the administrative agent (for the benefit of
the lenders under the Credit Agreement) are terminated and/or replaced with
Liens in favor of the lenders or holders of such refinancing Indebtedness (or
any agent on their behalf). In the event that, following the automatic release
of the Trustee's Liens (for the benefit of the Holders) in the Home Site Land,
Wynn Las Vegas or any of the Restricted Subsidiaries grants a Lien on any or
all of the Home Site Land to secure such refinancing Indebtedness or any
Guarantee thereof, such Person shall concurrently grant a Lien on such portions
of the Home Site Land in favor of the Trustee for the benefit of the Holders to
secure the Notes (or, if such Person is a Guarantor, its Note Guarantee);
provided that the Lien in favor of the Trustee for the benefit of the Holders
shall be a first priority Lien pari pausse with the Liens securing in favor of
the lenders under the Credit Agreement, subject only to other Permitted Liens
and the terms of the Intercreditor Agreement).
(e) The Trustee shall (i) release (at the sole cost and expense of the
Issuers) the Liens granted by Wynn Las Vegas and the Restricted Subsidiaries in
favor of the Trustee for the benefit of the Holders in two acres of the Golf
Course Land in order to permit the construction of a personal residence for
Stephen A. Wynn and (ii) permit the amendment of the Golf Course Lease and the
Access Easement Agreement to contemplate the release of the Wynn Home Site
Land, so long as:
(1) no Default or Event of Default exists or is continuing
immediately prior to or after giving effect to that release,
(2) the cash purchase price paid by Stephen A. Wynn in
immediately available funds for the Wynn Home Site Land prior to the
release of such Liens shall not be less than the then Fair Market
Value of the Wynn Home Site Land,
(3) the purchase price is paid directly to Wynn Golf,
(4) the construction of Stephen A. Wynn's personal residence
shall not materially interfere with the design, construction,
operation or use of the remainder of the Golf Course Land and
otherwise could not reasonably be expected to materially impair the
overall value of the Projects,
(5) the lenders under the Credit Agreement concurrently
release their Liens on the Wynn Home Site Land,
(6) no Points of Diversion with respect to any water permits
held by Wynn Las Vegas or any of its Restricted Subsidiaries or
otherwise utilized or expected to utilized with respect to the
Projects, wells associated therewith or rights-of-way necessary for
the transportation to the Golf Course Land or the Wynn Las Vegas hotel
and casino resort water entertainment features of water drawn or to be
drawn pursuant to water permits, are located on the released Golf
Course Land, or Wynn Golf shall have otherwise transferred or reserved
for the benefit of the Golf Course Land (previously or in connection
with such disposition) at no cost to Wynn Las Vegas and its Restricted
Subsidiaries such easements as are necessary for Wynn Las Vegas and
its Restricted Subsidiaries to (A) access such Points of Diversion,
(B) own and operate such wells and (C) transport such water to the
water features of the Project and/or the Golf Course,
(7) Wynn Las Vegas and Wynn Golf, as the case may be, shall
have taken all actions required pursuant to Section 4.28 hereof with
respect to any assets or property acquired pursuant to clause (6)
above, and
(8) Wynn Las Vegas and/or Wynn Golf delivers an Officers'
Certificate to the Trustee confirming that the conditions in clauses
(1), (2), (3), (4), (5), (6) and (7) of this Section 10.03(e) have
been satisfied.
(f) Upon receipt by the Trustee of the applicable Officers'
Certificate required to be delivered pursuant to Sections 10.03(a), (b), (c),
(d) or (e), as the case may be, the Trustee shall execute, deliver or
acknowledge any necessary or proper instruments of termination, satisfaction or
release to evidence the release of any Collateral permitted to be released
pursuant to this Section 10.03.
(g) The release of any Collateral from the terms of this Indenture and
the Collateral Documents shall not be deemed to impair the security under this
Indenture in contravention of the provisions hereof if and to the extent the
Collateral is released pursuant to the terms of the Collateral Documents or
this Indenture. To the extent applicable, the Issuers shall cause TIA ss.
313(b), relating to reports, and TIA ss. 314(d), relating to the release of
property or securities from the Lien and security interest of the Collateral
Documents and this Indenture and relating to the substitution therefor of any
property or securities to be subjected to the Lien and security interest of the
Collateral Documents and this Indenture, to be complied with. Any certificate
or opinion required by TIA ss. 314(d) may be made by an Officer of Wynn Las
Vegas except in cases where TIA ss. 314(d) requires that such certificate or
opinion be made by an independent Person, which Person shall be an independent
engineer, appraiser or other expert selected or approved by the Trustee in the
exercise of reasonable care.
(h) Notwithstanding anything to the contrary in this Indenture or the
Collateral Documents, no Collateral may be released from the Lien and security
interests created by the Collateral Documents unless the Officers' Certificate
required by this Section 10.03 has been delivered to the Trustee and any
applicable provisions of the Intercreditor Agreement have been complied with.
(i) At any time when a Default or Event of Default has occurred and is
continuing and the maturity of the Notes has been accelerated (whether by
declaration or otherwise), no release of Collateral pursuant to the provisions
of this Section 10.03 or the Collateral Documents shall be effective as against
the Holders of Notes.
Section 10.04 Certificates of the Issuers.
In addition to the requirements under Section 10.03, the Issuers
shall furnish to the Trustee and the Collateral Agent, prior to each
proposed release of Collateral pursuant to the Collateral Documents:
(a) all documents required by TIA ss.314(d) and the Collateral
Documents; and
(b) an Opinion of Counsel, which may be rendered by internal counsel
to the Issuers, to the effect that such accompanying documents constitute all
documents required by TIA ss.314(d).
The Trustee may, to the extent permitted by Sections 7.01 and 7.02
hereof, accept as conclusive evidence of compliance with the foregoing
provisions the appropriate statements contained in such documents and such
Opinion of Counsel.
Section 10.05 Certificates of the Trustee.
In the event that the Issuers wish to release Collateral in
accordance with the Collateral Documents and have delivered the
certificates and documents required by the Collateral Documents and
Sections 10.03 and 10.04 hereof, the Trustee shall determine whether it has
received all documentation required by TIA ss. 314(d) in connection with
such release and, based on such determination and the Opinion of Counsel
delivered pursuant to Section 10.04(2) hereof, shall deliver a certificate
to the Collateral Agent setting forth such determination.
Section 10.06 Authorization of Actions to Be Taken by the Trustee Under the
Collateral Documents.
Subject to the provisions of Section 7.01 and 7.02 hereof and the
Collateral Documents, the Trustee may, in its sole discretion and without
the consent of the Holders of Notes, direct, on behalf of the Holders of
Notes, the Collateral Agent to, take all actions it deems necessary or
appropriate in order to:
(a) enforce any of the terms of the Collateral Documents; and
(b) collect and receive any and all amounts payable in respect of the
Obligations of the Issuers and the Guarantors hereunder and under the
Collateral Documents.
The Trustee shall have power to institute and maintain such suits
and proceedings as it may deem expedient to prevent any impairment of the
Collateral by any acts that may be unlawful or in violation of the
Collateral Documents or this Indenture, and such suits and proceedings as
the Trustee may deem expedient to preserve or protect its interests and the
interests of the Holders of Notes in the Collateral (including power to
institute and maintain suits or proceedings to restrain the enforcement of
or compliance with any legislative or other governmental enactment, rule or
order that may be unconstitutional or otherwise invalid if the enforcement
of, or compliance with, such enactment, rule or order would impair the
security interest hereunder or be prejudicial to the interests of the
Holders of Notes or of the Trustee).
Section 10.07 Authorization of Receipt of Funds by the Trustee Under the
Collateral Documents.
The Trustee is authorized to receive any funds for the benefit of
the Holders of Notes distributed under the Collateral Documents, and to
make further distributions of such funds to the Holders of Notes according
to the provisions of this Indenture.
Section 10.08 Rights in the Pledged Collateral.
(a) So long as no Event of Default shall have occurred and be continuing,
and subject to the provisions of this Indenture, the Intercreditor
Agreement and the other Collateral Documents, Wynn Las Vegas and each
Guarantor shall be entitled to receive the benefit of all cash dividends,
interest and other payments made upon or with respect to the Collateral
pledged by such Person and to exercise any voting and other consensual
rights pertaining to the Collateral pledged by such Person. Upon the
occurrence and during the continuance of an Event of Default and, subject
to the terms of the Collateral Documents and the limitations in the
Intercreditor Agreement and the exercise by the Trustee of its rights under
the Collateral Documents:
(1) upon receipt by the affected Person of notice from the Trustee
so stating, all rights of such Person to exercise such voting or other
consensual rights shall cease, and all such rights shall become vested in
the Trustee which, to the extent permitted by law, shall have the sole
right to exercise such rights;
(2) all rights of such Person to receive all cash dividends,
interest and other payments made upon, or with respect to, the Collateral
shall cease and such cash dividends, interest and other payments shall be
paid to the Trustee; and
(3) subject to applicable law, the Trustee may sell the Collateral
or any part thereof in accordance with the terms of this Indenture, the
Intercreditor Agreement and the other Collateral Documents.
(b) Nothing contained in this Section 10.08 shall be deemed to restrict the
ability of Wynn Las Vegas to make the Restricted Payments permitted to be
made during the occurrence of an Event of Default under Section 4.07(b)
hereof.
Section 10.09 Termination of Security Interest.
Upon the payment in full in immediately available funds of all
Obligations of the Issuers under this Indenture and the Notes, or upon
Legal Defeasance, the Trustee shall, at the written request of the Issuers,
deliver a certificate to the Collateral Agent stating that such Obligations
have been paid in full, and instruct the Collateral Agent to release the
Liens on the Collateral pursuant to this Indenture and the Collateral
Documents and to take such actions at the Issuers' sole cost and expense as
the Issuers may reasonably request to evidence such release, including,
without limitation, the return of assets pledged as Collateral and the
execution and delivery of related instruments of transfer, lien, releases,
reconveyances, termination statements and any similar documents and
instruments.
ARTICLE 11.
NOTE GUARANTEES
Section 11.01 Note Guarantee.
(a) Subject to this Article 11, each of the Guarantors hereby, jointly
and severally, unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of this
Indenture, the Notes, the Collateral Documents or the obligations of the
Issuers hereunder or thereunder, that:
(1) the principal of, premium and Liquidated Damages, if any,
and interest on the Notes shall be promptly paid in full when due,
whether at maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of and interest on the Notes, if
any, if lawful, and all other obligations of the Issuers to the
Holders or the Trustee hereunder or thereunder shall be promptly paid
in full or performed, all in accordance with the terms hereof and
thereof; and
(2) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, that same shall be
promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors shall be
jointly and severally obligated to pay the same immediately. Each Guarantor
agrees that this is a guarantee of payment and performance and not a
guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder are
unconditional, irrespective of the validity, regularity or enforceability of
the Notes, this Indenture or the Collateral Documents, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Issuers, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
Guarantor. Each of the Guarantors hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of insolvency or
bankruptcy of either Issuer, any right to require a proceeding first against
the Issuers, protest, notice and all demands whatsoever and covenant that this
Note Guarantee shall not be discharged except by complete performance of the
obligations contained in the Notes and this Indenture. Each Guarantor waives
any right or claims of right to cause a marshalling of the Issuers' or any
Guarantor's assets or to proceed against any Guarantor, any Issuer or any other
guarantor of any Obligations that are Guaranteed in any particular order,
including, but not limited to, any right arising out of Nevada Revised Statutes
40.430, to the fullest extent permitted by Nevada Revised Statutes 40.495(2).
(c) If any Holder or the Trustee is required by any court or otherwise
to return to the Issuers, the Guarantors or any custodian, trustee, liquidator
or other similar official acting in relation to either Issuer or any Guarantor,
any amount paid by either to the Trustee or such Holder, this Note Guarantee,
to the extent theretofore discharged, shall be reinstated in full force and
effect.
(d) Each of the Guarantors agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each of the Guarantors further agrees that, as between the Guarantors, on the
one hand, and the Holders and the Trustee, on the other hand, (1) the maturity
of the obligations guaranteed hereby may be accelerated as provided in Article
6 hereof for the purposes of this Note Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (2) in the event of any declaration of
acceleration of such obligations as provided in Article 6 hereof, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of this Note Guarantee. The
Guarantors shall have the right to seek contribution from any non-paying
Guarantor, as the case may be, so long as the exercise of such right does not
impair the rights of the Holders under the Note Guarantee.
Section 11.02 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Note
Guarantee of such Guarantor not constitute a fraudulent transfer or
conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal
or state law to the extent applicable to any Note Guarantee. To effectuate
the foregoing intention, the Trustee, the Holders and the Guarantors hereby
irrevocably agree that the obligations of each such Guarantor shall be
limited to the maximum amount that shall, after giving effect to such
maximum amount and all other contingent and fixed liabilities of such
Guarantor, as the case may be, that are relevant under such laws, and after
giving effect to any collections from, rights to receive contribution from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 11, result in the
obligations of such Guarantor under its Note Guarantee not constituting a
fraudulent transfer or conveyance.
Section 11.03 Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 11.01, each of
the Guarantors hereby agrees that a notation of such Note Guarantee
substantially in the form attached as Exhibit E hereto shall be endorsed by
an Officer of such Guarantor on each Note authenticated and delivered by
the Trustee and that this Indenture shall be executed on behalf of such
Guarantor by one of its Officers.
Each of the Guarantors hereby agrees that its Note Guarantee set
forth in Section 11.01 shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such Note
Guarantee.
If an Officer whose signature is on this Indenture or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates
the Note on which a Note Guarantee is endorsed, the Note Guarantee shall be
valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Note Guarantee set
forth in this Indenture on behalf of the Guarantors.
In the event that the Issuers create or acquire any Subsidiary
after the date of this Indenture, if required by Sections 4.24 and 4.28
hereof, the Issuers shall cause such Subsidiary to comply with the
provisions of Sections 4.24 and 4.28 hereof and this Article 11, to the
extent applicable.
Section 11.04 Guarantors May Consolidate, etc., on Certain Terms.
(a) A Guarantor may not sell or otherwise dispose of all or
substantially all of its assets to, or consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person) another Person, other
than either of the Issuers or another Guarantor, unless:
(1) immediately after giving effect to that transaction, no
Default or Event of Default exists; and
(2) either:
(a) the Person acquiring the property in any such sale or
disposition or the Person formed by or surviving any such
consolidation or merger assumes all the obligations of that Guarantor
under this Indenture, its Note Guarantee and the Registration Rights
Agreement pursuant to a supplemental indenture and other appropriate
documents satisfactory to the Trustee; or
(b) the Net Proceeds of such sale or other disposition are
applied in accordance with Section 4.10 hereof.
(b) In case of any consolidation, merger, sale or conveyance of or
involving a Guarantor under this Section 11.04 hereof, and upon the assumption
by the successor Person, by supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the Note Guarantee
endorsed upon the Notes and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Guarantor,
such successor Person shall succeed to and be substituted for the Guarantor
with the same effect as if it had been named herein as a Guarantor. Such
successor Person thereupon may cause to be signed any or all of the Note
Guarantees to be endorsed upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Issuers and delivered to the
Trustee. All the Note Guarantees so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Note Guarantees theretofore
and thereafter issued in accordance with the terms of this Indenture as though
all of such Note Guarantees had been issued at the date of the execution
hereof.
(c) Except as set forth in Articles 4 and 5 hereof, nothing contained
in this Indenture or in any of the Notes shall prevent any consolidation or
merger of a Guarantor with or into the Issuers or another Guarantor, or shall
prevent any sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Issuers or another Guarantor.
(d) Notwithstanding the foregoing, each Guarantor is permitted to
reorganize as a corporation pursuant to a Permitted C-Corp. Conversion.
Section 11.05 Releases Following Sale of Assets.
Subject to compliance with Section 11.04 hereof, the Note
Guarantee of a Guarantor and the security interests granted by that
Guarantor to secure its Note Guarantee shall be released: (1) in connection
with any sale or other disposition of all or substantially all of the
assets of that Guarantor (including by way of merger or consolidation) to a
Person that is not (either before or after giving effect to such
transaction) Wynn Las Vegas or one of its Restricted Subsidiaries, if the
sale or other disposition complies with the applicable provisions of this
Indenture, including, without limitation, Section 4.10 hereof; or (2) in
connection with any sale of all of the Capital Stock of a Guarantor to a
Person that is not (either before or after giving effect to such
transaction) Wynn Las Vegas or one of its Restricted Subsidiaries, if the
sale complies with the applicable provisions of this Indenture, including,
without limitation, Section 4.10 hereof. Upon delivery by Wynn Las Vegas to
the Trustee of an Officers' Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the Issuers in
accordance with the provisions of this Indenture, including, without
limitation, Section 4.10 hereof, the Trustee shall execute any documents
reasonably required in order to evidence the release of any Guarantor from
its obligations under its Note Guarantee.
Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal of and
interest and premium, if any, on the Notes and for the other obligations of
any Guarantor under this Indenture as provided in this Article 11.
Section 11.06 Release of Guarantees.
Subject to compliance with the provisions described above under
this Article 11, the Note Guarantee of a Guarantor and the security
interests granted by that Guarantor to secure its Note Guarantee will be
released:
(a) if the lenders under the Credit Agreement release the guarantees
by such Guarantor under the Credit Agreement (provided that it will not be
deemed to be a release of the first priority security interest requiring the
automatic release of the Trustee's Liens (for the benefit of the Holders) if
the release of the first priority lien securing the Credit Agreement is the
result of a Refinancing of the Credit Agreement and as a result of which the
first priority liens in favor of the administrative agent (for the benefit of
the lenders under the Credit Agreement) are terminated and/or replaced with
liens in favor of the lenders or holders of such refinancing Indebtedness (or
any agent on their behalf);
(b) in connection with any sale or other disposition of all or
substantially all of the assets of that Guarantor (including by way of merger
or consolidation) to a Person that is not (either before or after giving effect
to such transaction) an Issuer or a Restricted Subsidiary of Wynn Las Vegas, if
the sale or other disposition is made in compliance with Section 4.10 hereof,
and if, after giving effect to such sale or other disposition, such Guarantor
is an Immaterial Subsidiary;
(c) in connection with any sale or other disposition of all of the
Capital Stock of that Guarantor to a Person that is not (either before or after
giving effect to such transaction) an Issuer or a Restricted Subsidiary of Wynn
Las Vegas, if the sale or other disposition does not violate Section 4.10
hereof;
(d) if Wynn Las Vegas designates any Restricted Subsidiary that is a
Guarantor to be an Unrestricted Subsidiary in accordance with Section 4.17
hereof; or
(e) upon Legal Defeasance as provided for in Section 8.02 hereof or
satisfaction and discharge of this Indenture as provided for in Section 12.01
hereof.
In addition to the release of any Note Guarantee by the applicable
Guarantor as described in this Section 11.06, the obligations of the
Guarantors under the Note Guarantees will be released if all of the
Collateral is released as provided for in Section 10.03(b) hereof.
ARTICLE 12.
satisfaction and discharge
Section 12.01 Satisfaction and Discharge.
This Indenture and the Collateral Documents shall be discharged
and shall cease to be of further effect as to all Notes issued hereunder,
when:
(a) either:
(1) all Notes that have been authenticated, except lost,
stolen or destroyed Notes that have been replaced or paid and Notes
for whose payment money has theretofore been deposited in trust and
thereafter repaid to the Issuers, have been delivered to the Trustee
for cancellation; or
(2) all Notes that have not been delivered to the Trustee for
cancellation will become due and payable by reason of the mailing of a
notice of redemption or otherwise or will become due and payable
within one year and the Issuers have or any Guarantor has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust solely for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as shall be sufficient without consideration of any
reinvestment of interest, to pay and discharge the entire Indebtedness
on the Notes not delivered to the Trustee for cancellation for
principal, premium and Liquidated Damages, if any, and accrued
interest to the date of maturity or redemption;
(b) no Default or Event of Default has occurred and is continuing on
the date of such deposit or shall occur as a result of the deposit (other than
a Default or Event of Default resulting from the borrowing of funds to be
applied to such deposit) and the deposit shall not result in a breach or
violation of, or constitute a default under, any other instrument to which
either Issuer or any Guarantor is a party or by which either Issuer or any
Guarantor is bound;
(c) the Issuers or any Guarantor have paid or caused to be paid all
sums payable by the Issuers under this Indenture; and
(d) the Issuers have delivered irrevocable instructions to the Trustee
under this Indenture to apply the deposited money toward the payment of the
Notes at maturity or the redemption date, as the case may be.
In addition, the Issuers must deliver an Officers' Certificate and an
Opinion of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture,
if money has been deposited with the Trustee pursuant to subclause (2) of
clause (a) of this Section, the provisions of Section 12.02 and Section
8.06 shall survive. In addition, nothing in this Section 12.01 shall be
deemed to discharge those provisions of Section 7.07 hereof, that, by their
terms, survive the satisfaction and discharge of this Indenture.
Section 12.02 Application of Trust Money.
Subject to the provisions of Section 8.06, all money deposited
with the Trustee pursuant to Section 12.01 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuers acting as their own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium
and Liquidated Damages, if any) and interest for whose payment such money
has been deposited with the Trustee; but such money need not be segregated
from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 12.01 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Issuers' and any Guarantor's obligations under this
Indenture, the Notes, the Note Guarantees and the Collateral Documents
shall be revived and reinstated as though no deposit had occurred pursuant
to Section 12.01; provided that if the Issuers have made any payment of
principal of, premium or Liquidated Damages, if any, or interest on any
Notes because of the reinstatement of its obligations, the Issuers shall be
subrogated to the rights of the Holders of such Notes to receive such
payment from the money or Government Securities held by the Trustee or
Paying Agent.
ARTICLE 13.
joint and several liability
Section 13.01 Joint and Several Liability.
(a) Notwithstanding any contrary provision contained in this
Indenture, the Notes and the Collateral Documents to which both of the Issuers
are a party, the covenants, agreements and obligations of the Issuers, and
either of them, shall be deemed joint and several obligations of the Issuers.
Any waiver including, without limitation, any suretyship waiver, made by either
Issuer in this Indenture, the Notes or any Collateral Document to which both of
the Issuers are a party shall be deemed to be made also by the other Issuer and
references in any such waiver to either Issuer shall be deemed to include the
other Issuer and each of them to the fullest extent permitted by applicable
law.
(b) Notwithstanding any contrary provision contained in this
Indenture, the Notes or any Collateral Document to which both of the Issuers
are a party, each such document to which both Issuers are party shall be deemed
to include, without limitation, the following waivers:
Each of the Issuers hereby waives and relinquishes all rights and
remedies accorded by applicable law to sureties or guarantors and agrees
not to assert or take advantage of any such rights or remedies, including,
without limitation, (i) any right to require the Trustee or any of the
Holders (each a "Beneficiary") to proceed against either of the Issuers or
any other Person or to proceed against or exhaust any security held by a
Beneficiary at any time or to pursue any other remedy in the power of a
Beneficiary before proceeding against such Issuer or other Person, (ii) the
defense of the statute of limitations in any action hereunder or in any
action for the collection or performance of the Obligations under the
Indenture, the Notes and any of the Collateral Documents (collectively, the
"Note Obligations"), (iii) any defense that may arise by reason of the
incapacity, lack of authority, death or disability of any Person or the
failure of a Beneficiary to file or enforce a claim against the estate (in
administration, bankruptcy or any other proceeding) of any Person, (iv)
appraisal, valuation, stay, extension, marshaling of assets, redemption,
exemption, demand, presentment, protest and notice of any kind, including,
without limitation, notice of the existence, creation or incurring of any
new or additional indebtedness or obligation or of any action or non action
on the part of a Beneficiary, any Issuer, any endorser, guarantor or
creditor of either Issuer or on the part of any other Person under this or
any other instrument or document in connection with any Obligation or
evidence of Indebtedness held by a Beneficiary as collateral or in
connection with the Note Obligations, (v) any defense based upon an
election of remedies by a Beneficiary, including, without limitation, an
election to proceed by non judicial rather than judicial foreclosure, which
destroys or otherwise impairs the subrogation rights of either Issuer, the
right of either Issuer to proceed against the other Issuer or any other
Person for reimbursement, or both, (vi) any defense based upon any statute
or rule of law which provides that the obligation of a surety must be
neither larger in amount nor in other respects more burdensome than that of
the principal, (vii) any duty on the part of a Beneficiary to disclose to
either Issuer any facts a Beneficiary may now or hereafter know about
either of the Issuers or any other Person, regardless of whether a
Beneficiary has reason to believe that any such facts materially increase
the risk beyond that which such Issuer intends to assume, or has reason to
believe that such facts are unknown to such Issuer, or has a reasonable
opportunity to communicate such facts to the either Issuer, because each
Issuer acknowledges that each Issuer is fully responsible for being and
keeping informed of the financial condition of each of the Issuers or any
other Person and of all circumstances bearing on the risk of non payment of
any Note Obligations, (viii) any defense arising because of the election of
a Beneficiary, in any proceeding instituted under the Bankruptcy Law, of
the application of Section 1111(b)(2) of the Bankruptcy Law, (ix) any
defense based upon any borrowing or grant of a security interest under
Section 364 of the Bankruptcy Law, (x) any claim or other rights which it
may now or hereafter acquire against the other Issuer or any other Person
that arises from the existence of performance of each Issuer of its
obligations under this Indenture, the Notes or any Collateral Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, any right to participate in any
claim or remedy by a Beneficiary against the other Issuer or any collateral
which a Beneficiary now has or hereafter acquires, whether or not such
claim, remedy or right arises in equity or under contract, statute or
common law, by any payment made hereunder or otherwise, including, without
limitation, the right to take or receive from either of the Issuers or any
other Person, directly or indirectly, in cash or other property or by set
off or in any other manner, payment or security on account of such claim or
other rights, (xi) any rights which it may acquire by way of contribution
under this Indenture, the Notes or any Collateral Document, by any payment
made hereunder or otherwise, including, without limitation, the right to
take or receive from any other Person, directly or indirectly, in cash or
other property or by set off or in any other manner, payment or security on
account of such contribution rights, and (xii) any defense based on one
action laws and any other anti deficiency protections granted to guarantors
by applicable law. No failure or delay on the Trustee's part in exercising
any power, right or privilege under this Indenture shall impair or waive
one such power, right or privilege. Each of the Issuers acknowledges and
agrees that any nonrecourse or exculpation provided for in this Indenture,
the Notes or any Collateral Document, or any other provision of this
Indenture, the Notes or any Collateral Document, limiting the
Beneficiaries' recourse to specific collateral, or limiting the
Beneficiaries' right to enforce a deficiency judgment against the Issuers,
shall have absolutely no application to the Issuers' liability under this
Indenture, the Notes or any Collateral Documents.
(c) In the event of any inconsistency between the provisions of this
Article 13 and the corresponding provisions of this Indenture, the Notes or any
Collateral Document to which both of the Issuers are a party, the provisions of
this Indenture shall govern.
ARTICLE 14.
MISCELLANEOUS
Section 14.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA ss.318(c), the imposed duties shall control.
Section 14.02 Notices.
Any notice or communication by the Issuers, any Guarantor or the
Trustee to the others is duly given if in writing and delivered in Person
or mailed by first class mail (registered or certified, return receipt
requested), telex, telecopier or overnight air courier guaranteeing next
day delivery, to the others' address:
If to the Issuers and/or any Guarantor:
c/o Wynn Las Vegas, LLC
3131 Las Vegas Boulevard, South
Las Vegas, NV 89109
Telecopier No.: (702) 770-1100
Attention: President
With a copy to:
c/o Wynn Las Vegas, LLC
3131 Las Vegas Boulevard, South
Las Vegas, NV 89109
Telecopier No.: (702) 770-1520
Attention: General Counsel
With a further copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue, Suite 3400
Los Angeles, CA 90071-3144
Telecopier No.: (213) 621-5010
Attention: Jerome Coben, Esq.
If to the Trustee:
U.S. Bank National Association
EP-MN-WS3C 60 Livingston Avenue St.
Paul, MN 55107-2292
Telecopier No.: (651) 495-8097
Attention: Corporate Trust Department
The Issuers, any Guarantor or the Trustee, by notice to the others
may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA ss. 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Issuers mail a notice or communication to Holders, they shall
mail a copy to the Trustee and each Agent at the same time.
Section 14.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Issuers,
the Guarantors, the Trustee, the Registrar and anyone else shall have the
protection of TIA ss. 312(c).
Section 14.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee to take
any action under this Indenture, the Issuers shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which must include the statements set forth in
Section 14.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which must include the statements set forth in
Section 14.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
Section 14.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) must comply with the provisions of TIA
ss. 314(e) and must include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
Section 14.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules
and set reasonable requirements for its functions.
Section 14.07 No Personal Liability of Directors, Officers, Employees and
Equity Holders.
No past, present or future director, officer, employee,
incorporator, organizer, equity holder or member of either Issuer, any of
the Restricted Subsidiaries or any Guarantor, as such, shall have any
liability for any obligations of either Issuer, any such Restricted
Subsidiary or any Guarantor under the Notes, the Note Guarantees, this
Indenture, the Collateral Documents or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. The waiver
may not be effective to waive liabilities under the federal securities
laws.
Section 14.08 Governing Law.
THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK
OBLIGATIONS LAW.
Section 14.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Issuers or their respective Subsidiaries or
of any other Person. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.
Section 14.10 Successors.
All agreements of the Issuers in this Indenture and the Notes
shall bind their successors. All agreements of the Trustee in this
Indenture shall bind its successors. All agreements of each Guarantor in
this Indenture shall bind its successors, except as otherwise provided in
Section 11.05.
Section 14.11 Severability.
In case any provision in this Indenture or in the Notes is
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 14.12 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the
same agreement.
Section 14.13 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and
shall in no way modify or restrict any of the terms or provisions hereof.
[Signatures Pages Follow]
SIGNATURES
Dated as of December 14, 2004 ISSUERS:
WYNN LAS VEGAS, LLC,
a Nevada limited liability company
By: Wynn Resorts Holdings, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited, a Nevada
corporation, its sole member
/s/ Ronald J. Kramer
---------------------------------
Name: Ronald J. Kramer
Title: President
WYNN LAS VEGAS CAPITAL CORP.,
a Nevada corporation,
By: /s/ Ronald J. Kramer
---------------------------------
Name: Ronald J. Kramer
Title: President
GUARANTORS:
LAS VEGAS JET, LLC,
a Nevada limited liability company
By: Wynn Las Vegas, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts Holdings, LLC,
a Nevada limited liability
company, its sole member
By: Wynn Resorts, Limited, a Nevada
corporation, its sole member
/s/ Ronald J. Kramer
---------------------------
Name: Ronald J. Kramer
Title: President
WORLD TRAVEL, LLC,
a Nevada limited liability company
By: Wynn Las Vegas, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts Holdings, LLC,
a Nevada limited liability
company,its sole member
By: Wynn Resorts, Limited, a Nevada
corporation, its sole member
/s/ Ronald J. Kramer
---------------------------
Name: Ronald J. Kramer
Title: President
WYNN GOLF, LLC,
a Nevada limited liability company
By: Wynn Las Vegas, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts Holdings, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited, a
Nevada corporation, its sole
member
/s/ Ronald J. Kramer
---------------------------
Name: Ronald J. Kramer
Title: President
WYNN SHOW PERFORMERS, LLC,
a Nevada limited liability company
By: Wynn Las Vegas, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts Holdings, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited, a Nevada
corporation, its sole member
/s/ Ronald J. Kramer
---------------------------
Name: Ronald J. Kramer
Title: President
WYNN SUNRISE, LLC,
a Nevada limited liability company
By: Wynn Las Vegas, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts Holdings, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited, a Nevada
corporation, its sole member
/s/ Ronald J. Kramer
---------------------------
Name: Ronald J. Kramer
Title: President
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Lori-Anne Rosenberg
---------------------------
Name: Lori-Anne Rosenberg
Title: Vice President
Exhibit 10.2
===============================================================================
CREDIT AGREEMENT
among
WYNN LAS VEGAS, LLC,
as the Borrower,
The Several Lenders
from Time to Time Party Hereto,
DEUTSCHE BANK SECURITIES INC.,
as Lead Arranger and Joint Book Running Manager,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent, Issuing Lender and Swing Line Lender,
BANC OF AMERICA SECURITIES LLC,
as Lead Arranger and Joint Book Running Manager,
BANK OF AMERICA, N.A.,
as Syndication Agent,
BEAR, STEARNS & CO. INC.,
as Arranger and Joint Book Running Manager,
BEAR STEARNS CORPORATE LENDING INC.,
as Joint Documentation Agent,
J. P. MORGAN SECURITIES INC.,
as Arranger and Joint Book Running Manager,
JPMORGAN CHASE BANK, N.A.,
as Joint Documentation Agent,
SG AMERICAS SECURITIES, LLC,
as Arranger and Joint Book Running Manager,
and
SOCIETE GENERALE,
as Joint Documentation Agent
Dated as of December 14, 2004
===============================================================================
TABLE OF CONTENTS
-----------------
Page
SECTION 1. DEFINITIONS............................................................................................1
1.1 Defined Terms...................................................................................1
1.2 Other Definitional Provisions..................................................................51
1.3 Certain Financial Calculations.................................................................52
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.......................................................................52
2.1 Term Loan Commitments..........................................................................52
2.2 Scheduled Amortization of Term Loans...........................................................52
2.3 Revolving Credit Commitments...................................................................53
2.4 Term Loan Call Protection......................................................................53
2.5 Procedure for Borrowing........................................................................54
2.6 Swing Line Commitment..........................................................................56
2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line Loans..............................56
2.8 Repayment of Loans; Evidence of Indebtedness...................................................58
2.9 Commitment Fees, etc...........................................................................59
2.10 Termination or Reduction of Revolving Credit Commitments.......................................59
2.11 Optional Prepayments...........................................................................60
2.12 Mandatory Prepayments and Commitment Reductions................................................60
2.13 Conversion and Continuation Options............................................................63
2.14 Minimum Amounts and Maximum Number of Eurodollar Tranches......................................64
2.15 Interest Rates and Payment Dates...............................................................64
2.16 Computation of Interest and Fees...............................................................64
2.17 Inability to Determine Interest Rate...........................................................65
2.18 Pro Rata Treatment and Payments................................................................65
2.19 Requirements of Law............................................................................67
2.20 Taxes..........................................................................................68
2.21 Indemnity......................................................................................70
2.22 Illegality.....................................................................................71
2.23 Change of Lending Office.......................................................................71
2.24 Insurance Proceeds and Eminent Domain Proceeds.................................................71
2.25 Replacement of Lenders under Certain Circumstances.............................................75
SECTION 3. LETTERS OF CREDIT.....................................................................................76
3.1 L/C Commitment.................................................................................76
3.2 Procedure for Issuance of Letters of Credit....................................................76
3.3 Fees and Other Charges.........................................................................77
3.4 L/C Participations.............................................................................78
3.5 Reimbursement Obligation of the Borrower.......................................................79
3.6 Responsibility of Issuing Lender With Respect to Requests for Drawings and Payments;
Obligations Absolute...........................................................................79
SECTION 4. REPRESENTATIONS AND WARRANTIES........................................................................81
4.1 Financial Condition............................................................................81
4.2 No Change......................................................................................81
4.3 Corporate/LLC Existence; Compliance with Law...................................................81
4.4 Power; Authorization; Enforceable Obligations..................................................82
4.5 No Legal Bar...................................................................................82
4.6 No Material Litigation.........................................................................83
4.7 No Default.....................................................................................83
4.8 Ownership of Property; Liens...................................................................83
4.9 Intellectual Property..........................................................................83
4.10 Taxes..........................................................................................84
4.11 Federal Regulations............................................................................85
4.12 Labor Matters and Acts of God..................................................................85
4.13 ERISA..........................................................................................85
4.14 Investment Company Act; Other Regulations......................................................86
4.15 Subsidiaries...................................................................................86
4.16 Use of Proceeds; Letters of Credit.............................................................86
4.17 Environmental Matters..........................................................................86
4.18 Accuracy of Information, etc...................................................................87
4.19 Security Documents.............................................................................88
4.20 Solvency.......................................................................................89
4.21 Senior Indebtedness............................................................................89
4.22 Regulation H...................................................................................89
4.23 Insurance......................................................................................89
4.24 Performance of Agreements; Material Contracts..................................................90
4.25 Real Estate....................................................................................90
4.26 Permits........................................................................................91
4.27 Sufficiency of Interests.......................................................................92
4.28 Utilities......................................................................................92
4.29 Fiscal Year....................................................................................92
SECTION 5. CONDITIONS PRECEDENT..................................................................................92
5.1 Conditions to Closing Date.....................................................................92
5.2 Conditions to Extensions of Credit Pursuant to Section 2.5(a) or 3.2(a)........................92
5.3 Conditions to Extensions of Credit Requested Pursuant to Section 2.5(b), 2.5(c) or 3.2(b)......93
SECTION 6. AFFIRMATIVE COVENANTS.................................................................................93
6.1 Financial Statements...........................................................................94
6.2 Certificates; Other Information................................................................95
6.3 Payment of Obligations.........................................................................97
6.4 Conduct of Business and Maintenance of Existence, etc..........................................98
6.5 Maintenance of Property; Leases; Insurance.....................................................98
6.6 Inspection of Property; Books and Records; Discussions.........................................98
6.7 Aircraft Security..............................................................................99
6.8 Environmental Laws; Permits....................................................................99
6.9 Dissolution of the Completion Guarantor.......................................................100
6.10 Additional Collateral, Discharge of Liens, etc................................................101
6.11 Use of Proceeds and Revenues..................................................................103
6.12 Compliance with Laws, Project Documents, etc.; Permits........................................104
6.13 Further Assurances............................................................................104
SECTION 7. NEGATIVE COVENANTS...................................................................................105
7.1 Financial Condition Covenants.................................................................105
7.2 Limitation on Indebtedness....................................................................107
7.3 Limitation on Liens...........................................................................109
7.4 Limitation on Fundamental Changes.............................................................112
7.5 Limitation on Disposition of Property.........................................................112
7.6 Limitation on Restricted Payments.............................................................117
7.7 Limitation on Capital Expenditures............................................................118
7.8 Limitation on Investments.....................................................................119
7.9 Limitation on Optional Payments and Modifications of Governing Documents......................121
7.10 Limitation on Transactions with Affiliates....................................................121
7.11 Limitation on Sales and Leasebacks............................................................123
7.12 Limitation on Changes in Fiscal Periods.......................................................123
7.13 Limitation on Negative Pledge Clauses.........................................................123
7.14 Limitation on Restrictions on Subsidiary Distributions, etc...................................124
7.15 Limitation on Lines of Business...............................................................124
7.16 Restrictions on Changes.......................................................................124
7.17 Limitation on Formation and Acquisition of Subsidiaries and Purchase of Capital Stock.........125
7.18 Limitation on Hedge Agreements................................................................125
7.19 Limitation on Sale or Discount of Receivables.................................................125
7.20 Limitation on Zoning and Contract Changes and Compliance......................................125
7.21 No Joint Assessment; Separate Lots............................................................125
7.22 Restrictions on Payments of Management Fees...................................................126
7.23 Project Costs for the Phase II Project........................................................126
7.24 Permitted Activities of Wynn Resorts Holdings.................................................126
7.25 Limitation on Golf Course Land and Golf Course Development....................................126
7.26 Acquisition of Real Property..................................................................127
7.27 Project Liquidity Reserve Account.............................................................128
7.28 Golf Course Lease Termination.................................................................128
SECTION 8. EVENTS OF DEFAULT....................................................................................128
SECTION 9. THE AGENTS; THE ARRANGERs; THE MANAGERS..............................................................134
9.1 Appointment...................................................................................134
9.2 Delegation of Duties..........................................................................134
9.3 Exculpatory Provisions........................................................................134
9.4 Reliance......................................................................................135
9.5 Notice of Default.............................................................................135
9.6 Non-Reliance on Agents, Managers, Arrangers and Other Lenders.................................135
9.7 Indemnification...............................................................................136
9.8 Arrangers, Agents and Managers in Their Individual Capacities.................................137
9.9 Successor Agents..............................................................................137
9.10 Authorization.................................................................................138
9.11 The Arrangers, Managers, Syndication Agent and Documentation Agents...........................138
9.12 Withholdings..................................................................................138
SECTION 10. MISCELLANEOUS.......................................................................................139
10.1 Amendments and Waivers........................................................................139
10.2 Notices.......................................................................................141
10.3 No Waiver; Cumulative Remedies................................................................143
10.4 Survival of Representations and Warranties....................................................144
10.5 Payment of Expenses; Indemnification..........................................................144
10.6 Successors and Assigns; Participations and Assignments........................................145
10.7 Adjustments; Set-off..........................................................................148
10.8 Counterparts..................................................................................148
10.9 Severability..................................................................................148
10.10 Integration...................................................................................149
10.11 GOVERNING LAW.................................................................................149
10.12 Submission To Jurisdiction; Waivers...........................................................149
10.13 Certain Matters Affecting Lenders.............................................................149
10.14 Acknowledgments...............................................................................150
10.15 Confidentiality...............................................................................151
10.16 Release of Collateral and Guarantee Obligations...............................................151
10.17 Accounting Terms and Changes..................................................................152
10.18 Delivery of Lender Addenda....................................................................152
10.19 Construction..................................................................................152
10.20 WAIVERS OF JURY TRIAL.........................................................................152
10.21 Gaming Authorities............................................................................153
10.22 Release of Golf Course Collateral.............................................................153
10.23 Release of Aircraft Related Security..........................................................153
10.24 Third Party Beneficiaries.....................................................................154
ANNEXES:
A Pricing Grid
SCHEDULES:
1.1 Mortgaged Property
4.4 Consents, Authorizations, Filings and Notices
4.9(b) Trademarks, Service Marks and Trade Names
4.9(c) Patents
4.9(d) Copyrights
4.9(e) Trade Secrets
4.9(f) Intellectual Property Licenses
4.15 Subsidiaries
4.19(a)-1 UCC Filing Jurisdictions - Collateral
4.19(a)-2 UCC Financing Statements to Remain on File
4.19(b) Mortgage Filings Jurisdictions
4.19(c) UCC Filing Jurisdictions - Intellectual Property Collateral
4.24 Material Contracts
4.25(a) Real Estate
4.25(d) Assessments
6.5(d) Insurance Requirements
7.2(d) Existing Indebtedness
7.3(f) Existing Liens
EXHIBITS:
A Form of Guarantee
B Form of Compliance Certificate
C Form of Disbursement Agreement
D Form of Mortgage
E Form of Assignment and Acceptance
F Form of Indemnity Agreement
G-1 Form of Term Note
G-2 Form of Revolving Credit Note
G-3 Form of Swing Line Note
H Form of Insurance Consultant Certificate
I Form of Exemption Certificate
J Form of Lender Addendum
K Form of Intercreditor Agreement
L Form of Subordinated Intercompany Note
M Form of Notice of Borrowing
N Form of Subordination, Non-Disturbance and Attornment Agreement
O Form of Letter of Credit Request
P Form of Pledge and Security Agreement
Q Form of Macau Investment
This CREDIT AGREEMENT is dated as of December 14, 2004 and
entered into among WYNN LAS VEGAS, LLC, a Nevada limited liability company
(the "Borrower"), the several banks and other financial institutions or
entities from time to time party to this Agreement as lenders, DEUTSCHE BANK
SECURITIES INC., as lead arranger and joint book running manager, DEUTSCHE
BANK TRUST COMPANY AMERICAS, as administrative agent (in such capacity and
together with its successors and assigns, the "Administrative Agent"), issuing
lender and swing line lender, BANC OF AMERICA SECURITIES LLC, as lead arranger
and joint book running manager, BANK OF AMERICA, N.A., as syndication agent,
BEAR, STEARNS & CO. INC., as arranger and joint book running manager, BEAR
STEARNS CORPORATE LENDING INC., as joint documentation agent, J.P. MORGAN
SECURITIES INC., as arranger and joint book running manager, JPMORGAN CHASE
BANK, N.A., as joint documentation agent, SG AMERICAS SECURITIES, LLC, as
arranger and joint book running manager, and SOCIETE GENERALE, as joint
documentation agent.
RECITALS
--------
WHEREAS, the Borrower is developing and owns the Phase I
Project and may develop and own the Phase II Project (such defined term and
other defined terms used in these Recitals shall have the meanings given in
Section 1.1 of this Agreement);
WHEREAS, the Borrower desires that the Lenders extend the
senior secured credit facilities contemplated hereby to the Borrower to
provide a portion of the funds necessary to develop and construct the Project
and provide working capital for the operation of the Project;
WHEREAS, subject to the terms and conditions hereof, the
Lenders are willing to extend such senior secured credit facilities to the
Borrower;
WHEREAS, the Borrower desires to secure all of its
Obligations by granting to the Collateral Agent on behalf of the
Administrative Agent and the Secured Parties a Lien on substantially all of
its assets as more fully described in this Agreement and the other Loan
Documents; and
WHEREAS, each of the Loan Parties (other than the Borrower)
shall guaranty the Obligations of the Borrower and shall secure all of its
Obligations by granting to the Collateral Agent on behalf of the
Administrative Agent and the Secured Parties a Lien on substantially all of
its assets, in each case as more fully described in this Agreement and the
other Loan Documents.
NOW, THEREFORE, in consideration of the premises and the
agreements hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms
listed in this Section 1.1 shall have the respective meanings set forth in
this Section 1.1.
"Access Agreement": the Access Easement Agreement, dated as
of the date hereof, between Wynn Golf and the Borrower.
"Account": any "Commodity Account," "Deposit Account" or
"Securities Account" (as such terms are defined in the UCC).
"Additional Entertainment Facility": a showroom or
entertainment facility adjoining the Project on the Site (other than
any showroom or entertainment facility contemplated in the Plans and
Specifications on the Closing Date).
"Additional Material Contracts": any Material Contract
entered into after the Closing Date relating to the development,
construction, maintenance or operation of the Project.
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": as defined in the preamble hereto.
"Administrative Agent Fee Letter": the Administrative Agent
Fee Letter, dated as of the date hereof, among the Borrower, the
Administrative Agent and Deutsche Bank Securities Inc.
"Advance Confirmation Notice": as defined in the
Disbursement Agreement.
"Advances": as defined in the Disbursement Agreement.
"Affiliate": as applied to any Person, any other Person
which, directly or indirectly, is in control of, is controlled by, or
is under common control with, such Person. For purposes of this
definition, "control" (including, with correlative meanings, the
terms "controlling," "controlled by" and "under common control with")
as applied to any Person means the power, directly or indirectly,
either to (a) vote 10% or more of the securities having ordinary
voting power for the election of directors (or persons performing
similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by
contract or otherwise.
"Affiliate Agreements": collectively, the Golf Course Lease,
the Management Agreement, the Project Services Agreement, the Shuttle
Easement Agreement, the Access Agreement, the Aircraft Operating
Agreement, the Art Rental and Licensing Agreement and the Wynn IP
Agreement.
"Affiliated Fund": means, with respect to any Lender that is
a fund that invests (in whole or in part) in commercial loans, any
other fund that invests (in whole or in part) in commercial loans and
is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Affiliated Overhead Expenses": for any period, the
reasonable costs and expenses of, and actually incurred by, Wynn
Resorts and its Wholly Owned Subsidiaries (other than the Loan
Parties) for salary and benefits, office operations, development,
advertising, insurance and other corporate or other overhead, for
such period, calculated on a consolidated basis, after the
elimination of intercompany transactions, and in accordance with
GAAP; provided, that Affiliated Overhead Expenses (a) shall not
include any fee, profit or similar component payable to Wynn Resorts
or any other Affiliate of Wynn Resorts (other than with respect to
the salary of Mr. Wynn) or any Project Costs and (b) shall represent
only the payment or reimbursement of actual costs and expenses
incurred by Wynn Resorts and its Wholly Owned Subsidiaries.
"Agents": the collective reference to the Syndication Agent,
the Documentation Agents, the Administrative Agent and, for purposes
of Section 9 and 10.5 only, the Collateral Agent and the Disbursement
Agent.
"Aggregate Exposure": with respect to any Lender at any
time, an amount equal to the sum of (a) the amount of such Lender's
Term Loan Commitment then in effect or, if the Term Loan Commitments
have been terminated, the amount of such Lender's Term Loan
Extensions of Credit then outstanding and (b) the amount of such
Lender's Revolving Credit Commitment then in effect or, if the
Revolving Credit Commitments have been terminated, the amount of such
Lender's Revolving Extensions of Credit then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender
at any time, the ratio (expressed as a percentage) of such Lender's
Aggregate Exposure at such time to the Aggregate Exposure of all
Lenders at such time.
"Agreement": this Credit Agreement.
"Aircraft": that certain 1999 Boeing 737-79U Business Jet
aircraft bearing manufacturer's serial number 29441 and United States
Federal Aviation Administration Registration Number N88WZ, which
shall include, but not be limited to, (i) the airframe (the Aircraft
except for the Engines (hereinafter defined) from time to time
installed thereon) together with any and all Parts (hereinafter
defined) incorporated or installed or attached to such aircraft and
all Parts removed from such aircraft until such Parts are replaced
(such airframe, together with any replacement or substitute airframe
and all such Parts, the "Airframe"), (ii) each of the engines
installed on the Aircraft and any replacement engine that may be
substituted for such engine, together, in each case, with any and all
Parts incorporated or installed or attached thereto and any and all
Parts removed therefrom, until such Parts are replaced (each such
engine, and replacement or substitute engine, together with any and
all such Parts, the "Engine" and collectively the "Engines"), (iii)
all appliances, parts, instruments, appurtenances, accessories,
furnishings and other equipment of whatever nature (other than the
Engines), that may from time to time be incorporated or installed in
or attached to the Airframe or any Engine (collectively referred to
herein as "Parts") and (iv) the proceeds of any of the foregoing.
"Aircraft Operating Agreement": that certain Amended and
Restated Aircraft Operating Agreement, dated October 30, 2002,
between the Aircraft Trustee and World Travel.
"Aircraft Trustee": Wells Fargo Bank Northwest, National
Association, as trustee under a trust agreement in favor of World
Travel with respect to the Aircraft, and any successor or replacement
trustee.
"Allocable Overhead": for any period, an amount equal to (a)
the amount of Affiliated Overhead Expenses for such period divided by
(b) the number of gaming and/or hotel projects of Wynn Resorts and
its Subsidiaries which were operating during such period or for which
debt and/or equity financing has been obtained to finance the design,
development, construction and/or opening thereof; provided, that (i)
the Project shall be deemed a single gaming and/or hotel project and
(ii) amounts allocated to any such project shall be prorated based on
the period within such period that such project was in operation or
financing therefor was obtained.
"Applicable Facility Lenders": with respect to any Facility,
(a) after the termination of the Term Loan Commitments or the
Revolving Credit Commitments, as the case may be, Non-Defaulting
Lenders holding more than 33?% of the Total Term Loan Extensions of
Credit of Non-Defaulting Lenders or the Total Revolving Extensions of
Credit of Non-Defaulting Lenders, as the case may be, or (b) prior to
any termination of the Term Loan Commitments or the Revolving Credit
Commitments, as the case may be, Non-Defaulting Lenders holding more
than 33?% of the Total Term Loan Commitments (less the aggregate Term
Loan Commitments of Defaulting Lenders) or Total Revolving Credit
Commitments (less the aggregate Revolving Credit Commitments of
Defaulting Lenders), as the case may be.
"Applicable Margin": for each Type of Loan, the rate per
annum set forth under the relevant column heading below:
Base Rate Eurodollar
Loans Loans
------------- --------------
Revolving Credit Loans and
Swing Line Loans 1.250% 2.250%
Term Loans 1.125% 2.125%
provided, that (i) subject to clause (ii) below, if at any time the
senior secured long-term Indebtedness under the Facilities shall be
rated at least Ba3 by Moody's and BB- by S&P, the Applicable Margin
for Revolving Credit Loans and Swing Line Loans (x) for all
Eurodollar Loans shall be 2.00% and (y) for all Base Rate Loans shall
be 1.00% and (ii) on and after the first Adjustment Date occurring
after either the first Quarterly Date (in the event that the Phase II
Commitment Sunset Date occurs without the Phase II Approval Date
having occurred) or the Initial Phase II Calculation Date (in the
event that the Phase II Approval Date occurs on or prior to the Phase
II Commitment Sunset Date), the Applicable Margin with respect to
Revolving Credit Loans and Swing Line Loans will be determined
pursuant to the Pricing Grid.
"Arrangers": collectively, Deutsche Bank Securities Inc., in
its capacity as a lead arranger, Banc of America Securities LLC, in
its capacity as a lead arranger, Bear, Stearns & Co. Inc., in its
capacity as an arranger, SG Americas Securities, LLC, in its capacity
as an arranger, and J.P. Morgan Securities Inc., in its capacity as
an arranger.
"Art Rental and Licensing Agreement": that certain Third
Amended and Restated Art Rental and Licensing Agreement, dated as of
August 6, 2004, between Mr. Wynn and the Borrower.
"Aruze Corp.": Aruze Corp., a Japanese public corporation.
"Aruze USA": Aruze USA, Inc., a Nevada corporation.
"Asset Sale": any Disposition of Property or series of
related Dispositions of Property by a Loan Party other than (a) the
granting of any Lien permitted by Section 7.3, (b) any Disposition
permitted by Section 7.4, (c) any Disposition permitted by
subsections (a), (b), (c), (d), (f), (h), (i), (j), (k), (l), (m),
(n) or (o) of Section 7.5 or (d) Dispositions for aggregate
consideration of less than $250,000 with respect to any transaction
or series of related transactions and less than $5,000,000 in the
aggregate during the term of the Facility (such consideration to be
valued at the initial principal amount thereof in the case of
non-cash proceeds consisting of notes or other debt securities and
valued at the fair market value in the case of other non-cash
proceeds).
"Assignee": as defined in Section 10.6(c).
"Assignment and Acceptance": as defined in Section 10.6(c).
"Assignor": as defined in Section 10.6(c).
"Available Revolving Credit Commitment": as to any Revolving
Credit Lender at any time, an amount equal to the excess, if any, of
(a) such Revolving Credit Lender's Revolving Credit Commitment then
in effect over (b) such Revolving Credit Lender's Revolving
Extensions of Credit then outstanding; provided, that in calculating
any Lender's Revolving Extensions of Credit for the purpose of
determining such Lender's (other than the Swing Line Lender)
Available Revolving Credit Commitment pursuant to Section 2.9(a), the
aggregate principal amount of Swing Line Loans then outstanding shall
be deemed to be zero.
"Available Term Loan Commitment": as to any Term Loan Lender
at any time, an amount equal to the excess, if any, of (a) such Term
Loan Lender's Term Loan Commitment then in effect over (b) such Term
Loan Lender's Term Loan Extensions of Credit.
"Bank Debt Service": for any period, (a) all fees payable
during such period to the Administrative Agent, the Issuing Lender,
the Swing Line Lender and the Lenders, (b) interest on Term Loans,
Swing Line Loans, Revolving Credit Loans and, without duplication,
interest on any outstanding Reimbursement Obligations, in each case
payable during such period, (c) scheduled Term Loan principal
payments (as reduced to reflect actual payments and prepayments
through the date of such calculation) and payments with respect to
the principal amount of any outstanding Reimbursement Obligations, in
each case payable during such period and (d) net payments, if any,
payable during such period pursuant to Specified Hedge Agreements.
"Bank Proceeds Account": as defined in the Disbursement
Agreement.
"Base Rate": for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1%) equal to the greatest of (a)
the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
"Base Rate Loans": Loans for which the applicable rate of
interest is based upon the Base Rate.
"Beneficial Owner": as defined in Rule 13d--3 and Rule
13d--5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as that term is used
in Section 13(d)(3) of the Exchange Act), such "person" will be
deemed to have beneficial ownership of all securities that such
"person" has the right to acquire by conversion or exercise of other
securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The
term "Beneficially Owned" has a corresponding meaning.
"Benefited Lender": as defined in Section 10.7.
"Board": the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"Board of Directors": (a) with respect to a corporation, the
board of directors of the corporation; (b) with respect to a
partnership, the board of directors of the general partner of the
partnership; (c) with respect to a limited liability company, the
manager or sole member of such limited liability company; and (d)
with respect to any other Person, the board or committee of such
Person serving a similar function.
"Borrower": as defined in the preamble hereto.
"Borrower Indemnity Agreement": the Indemnity Agreement,
dated as of the date hereof, by the Borrower in favor of the
Administrative Agent.
"Borrower Mortgage": the Deed of Trust, Leasehold Deed of
Trust, Assignment of Rents and Leases, Security Agreement and Fixture
Filing, dated as of the date hereof, made by the Borrower to the
Title Insurance Company for the benefit of the Collateral Agent.
"Borrowing Date": any Business Day specified by the Borrower
as a date on which the Borrower requests the relevant Lender(s) to
make Loans hereunder.
"Business Day": (a) for all purposes other than as covered
by clauses (b) and (c) below, a day other than a Saturday, Sunday or
other day on which commercial banks in New York City, New York or Las
Vegas, Nevada are authorized or required by law to close, (b) with
respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, any day
which is a Business Day described in clause (a) above and which is
also a day for trading by and between banks in Dollar deposits in the
New York interbank eurodollar market and (c) with respect to all
notices and determinations in connection with Letters of Credit and
payments of principal and interest on Reimbursement Obligations, a
day other than a Saturday, Sunday or other day on which commercial
banks in New York City, New York are authorized or required by law to
close.
"Capital Corp.": Wynn Las Vegas Capital Corp., a Nevada
corporation.
"Capital Expenditures": for any period, with respect to any
Person, the aggregate of all expenditures by such Person and its
Subsidiaries for the acquisition or leasing (pursuant to a capital
lease) of fixed or capital assets (including, without limitation,
real property) or additions to equipment (including replacements,
capitalized repairs and improvements during such period) which should
be capitalized under GAAP on a consolidated balance sheet of such
Person and its Subsidiaries; provided, that the amount of Capital
Expenditures in respect of fixed or capital assets or additions to
equipment in any Fiscal Year shall not include (a) the Net Cash
Proceeds received by any such Person from Dispositions of Property
pursuant to Section 7.5(a) and applied to the acquisition of fixed or
capital assets and (b) the Insurance Proceeds and/or Eminent Domain
Proceeds received by any such Person for any casualties to, or Taking
of, fixed or capital assets and applied during such Fiscal Year to
the repair or replacement of fixed or capital assets in accordance
with Section 2.24. Notwithstanding the foregoing, (i) to the extent
funded with proceeds of Indebtedness described in Section 7.2(l) or
equity capital contributions from Wynn Resorts (or another Affiliate
to the extent acting as an intermediary for purposes of contributing
equity capital contributions from Wynn Resorts to a Loan Party for
application to Capital Expenditures), any expenditures in furtherance
of the construction of the Additional Entertainment Facility and the
Retail Facility that otherwise would have constituted Capital
Expenditures by virtue of the foregoing and (ii) any Project Costs
shall in each case be excluded from this definition for purposes of
Section 7.7 only.
"Capital Lease Obligations": as to any Person, the
obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are
required to be classified and accounted for as capital leases on a
balance sheet of such Person under GAAP, and, for the purposes of
this Agreement, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in accordance
with GAAP.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all classes of membership or member's
interests in a limited liability company, any and all classes of
partnership interests in a partnership, any and all equivalent
ownership interests in a Person and any and all warrants, rights or
options to purchase any of the foregoing.
"Carryover Amount": as defined in Section 7.7.
"Cash Equivalents": (a) United States dollars; (b)
securities issued or directly and fully guaranteed or insured by the
United States government or any agency or instrumentality of the
United States government (as long as the full faith and credit of the
United States is pledged in support of those securities) having
maturities of not more than six months from the date of acquisition;
(c) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition,
bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case, with any Lender or with any
domestic commercial bank having capital and surplus in excess of
$500,000,000 and a Thomson Bank Watch Rating of "B" or better; (d)
repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (b) and (c)
above entered into with any financial institution meeting the
qualifications specified in clause (c) above; (e) commercial paper
having one of the two highest ratings obtainable from Moody's or S&P
and in each case maturing within six months after the date of
acquisition; (f) money market funds or mutual funds at least 95% of
the assets of which constitute Cash Equivalents of the kinds
described in clauses (a) through (e) of this definition; and (g) to
the extent not permitted in clauses (a) through (f) of this
definition, Permitted Securities.
"Change of Control": the occurrence of any of the following:
(a) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or
a series of related transactions, of all or substantially all of the
properties or assets of the Loan Parties, taken as a whole, to any
"person" (as that term is used in Section 13(d)(3) of the Exchange
Act), other than to Mr. Wynn or a Related Party of Mr. Wynn, (b) the
adoption of a plan relating to the liquidation or dissolution of the
Borrower or any successor thereto, (c) the consummation of any
transaction (including, without limitation, any merger or
consolidation) the result of which is that (i) any "person" (as
defined in clause (a) above), other than Mr. Wynn and any of his
Related Parties becomes the Beneficial Owner, directly or indirectly,
of more than 50% of the outstanding Voting Stock of Wynn Resorts,
measured by voting power rather than number of equity interests, (ii)
any "person" (as defined in clause (a) above)(other than Kazuo Okada,
Aruze USA and Aruze Corp., so long as (A) the Stockholders Agreement,
as in effect on the Closing Date, remains in full force and effect,
(B) a majority of the Board of Directors of Wynn Resorts is
constituted of Persons named on any slate of directors chosen by Mr.
Wynn and Aruze USA pursuant to the Stockholders Agreement, as in
effect on the Closing Date and (C) Kazuo Okada and his Related
Parties either (1) "control" (as that term is used in Rule 405 under
the Securities Act) Aruze Corp. and Aruze USA or (2) otherwise remain
the direct or indirect Beneficial Owners of the Voting Stock of Wynn
Resorts held by Aruze Corp.) becomes the Beneficial Owner, directly
or indirectly, of a greater percentage of the outstanding Voting
Stock of Wynn Resorts, measured by voting power rather than number of
equity interests, than is at that time Beneficially Owned by Mr. Wynn
and his Related Parties as a group, (iii) prior to the earlier of (X)
the Phase II Opening Date or (Y) December 31, 2007, Mr. Wynn and his
Related Parties as a group own less than 80% of the outstanding
Voting Stock of Wynn Resorts owned by such group as of the Closing
Date, or (iv) prior to the earlier of (X) the Phase II Opening Date,
or (Y) December 31, 2007 Mr. Wynn and his Related Parties as a group
own less than 10% of the outstanding Voting Stock of Wynn Resorts,
measured by voting power rather than number of equity interests, (d)
the first day prior to the earlier of (X) the Phase II Opening Date
or (Y) December 31, 2007 on which Mr. Wynn does not act as either the
Chairman of the Board of Directors of Wynn Resorts or the Chief
Executive Officer of Wynn Resorts, other than (A) as a result of
death or disability or (B) if the Board of Directors of Wynn Resorts,
exercising their fiduciary duties in good faith, removes or fails to
re-appoint Mr. Wynn as Chairman of the Board of Directors of Wynn
Resorts or Chief Executive Officer of Wynn Resorts, (e) the first day
on which a majority of the members of the Board of Directors of Wynn
Resorts are not Continuing Directors, (f) the first day on which Wynn
Resorts ceases to own, directly or indirectly, 100% of the
outstanding Capital Stock of the Borrower or (g) Wynn Resorts
consolidates with, or merges with or into, any Person or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any Person, or any Person
consolidates with, or merges with or into, Wynn Resorts, in any such
event pursuant to a transaction in which any of the outstanding
voting stock of Wynn Resorts is converted into or exchanged for cash,
securities or other property, other than any such transaction where
the voting stock of Wynn Resorts outstanding immediately prior to
such transaction is converted into or exchanged for voting stock
(other than Disqualified Stock) of the surviving or transferee Person
constituting a majority of the outstanding shares of such voting
stock of such surviving or transferee Person (immediately after
giving effect to such issuance).
"Closing Date": the date on which this Agreement and the
other Loan Documents are executed and delivered and the conditions
precedent set forth in Section 3.1 of the Disbursement Agreement and
Section 5.1 of this Agreement have been satisfied or waived.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": all Property of the Loan Parties, Wynn Resorts
Holdings or any other Person, now owned or hereafter acquired, upon
which a Lien is purported to be created by any Security Document.
"Collateral Agency Agreement": the Collateral Agency
Agreement, dated as of the date hereof, among the Collateral Agent,
the Nevada Collateral Agent and other parties from time to time party
thereto.
"Collateral Agent": Deutsche Bank Trust Company Americas in
its capacity as Collateral Agent under and as defined in the
Intercreditor Agreement, any successor Collateral Agent and any
assignee of the foregoing appointed pursuant to the terms of the
Intercreditor Agreement.
"Commitment": as to any Lender, the sum of the Term Loan
Commitment and the Revolving Credit Commitment of such Lender.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Borrower or any other Loan
Party within the meaning of Section 4001 of ERISA or is part of a
group that includes such Person and that is treated as a single
employer under Section 414 of the Code.
"Company Disbursement Collateral Account Agreement": as
defined in the Disbursement Agreement.
"Company's Funds Account": as defined in the Disbursement
Agreement.
"Completion Date": as defined in the Disbursement Agreement.
"Completion Guarantor": Wynn Completion Guarantor, LLC, a
Nevada limited liability company.
"Completion Guaranty": that certain Completion Guaranty,
dated as of the date hereof, by the Completion Guarantor in favor of
the Administrative Agent and the 2014 Notes Indenture Trustee.
"Completion Guaranty Collateral Account Agreement": as
defined in the Disbursement Agreement.
"Completion Guaranty Deposit Account": as defined in the
Disbursement Agreement.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit B hereto.
"Confidential Information Memorandum": the Confidential
Information Memorandum, dated November 18, 2004 and furnished to the
initial Lenders.
"Consents": as defined in the Disbursement Agreement.
"Consolidated Current Assets": at any date, all amounts
(other than cash and Cash Equivalents) which would, in conformity
with GAAP, be set forth opposite the caption "total current assets"
(or any like caption) on a consolidated balance sheet of the Borrower
and its Subsidiaries at such date.
"Consolidated Current Liabilities": at any date, all amounts
that would, in conformity with GAAP, be set forth opposite the
caption "total current liabilities" (or any like caption) on a
consolidated balance sheet of the Borrower and its Subsidiaries at
such date, but excluding (a) the current portion of any Funded Debt
of the Borrower and its Subsidiaries and (b) without duplication of
clause (a) above, all Indebtedness consisting of Revolving Credit
Loans or Swing Line Loans to the extent otherwise included therein.
"Consolidated EBITDA": of any Person for any period,
Consolidated Net Income of such Person and its Subsidiaries for such
period plus, without duplication and to the extent included in the
calculation of such Consolidated Net Income for such period, the sum
of (a) income tax expense or the Tax Amount (whether or not paid
during such period), (b) Consolidated Interest Expense of such Person
and its Subsidiaries, amortization or write-off of debt discount and
debt issuance costs and commissions, discounts and other fees and
charges (including prepayment penalties and premiums) associated with
Indebtedness (including, in the case of the Borrower and its
subsidiaries, the Loans, Letters of Credit and Hedge Agreements), (c)
depreciation and amortization expense, (d) amortization of
intangibles (including, but not limited to, goodwill), (e) any
extraordinary expenses or losses (and, whether or not otherwise
includable as separate items in the statement of such Consolidated
Net Income for such period, losses on sales of assets outside of the
ordinary course of business and pre-opening expenses related to the
initial opening of the Phase I Project and the Phase II Project (such
pre-opening expenses to be no greater than that set forth in the
Project Budget then in effect) and (f) other non-cash items reducing
such Consolidated Net Income (excluding any such non-cash item to the
extent that it represents an accrual or reserve for potential cash
items in any future period or amortization of a prepaid cash item
that was paid in a prior period) and minus, to the extent included in
the calculation of such Consolidated Net Income for such period, the
sum of (i) interest income other than, in the case of any Loan Party,
interest income received in cash or cash equivalents during such
period from the Macau Loan (except to the extent deducted in
determining Consolidated Interest Expense), (ii) any extraordinary
income or gains (and, whether or not otherwise includable as a
separate item in the statement of such Consolidated Net Income for
such period, gains on the sales of assets outside of the ordinary
course of business) and (ii) other non-cash items increasing such
Consolidated Net Income for such period (excluding any such non-cash
item to the extent it represents the reversal of an accrual or
reserve for potential cash item in any prior period), all as
determined on a consolidated basis. Any cash equity contributions
made by Mr. Wynn, Wynn Resorts or any of their Affiliates (other than
the Borrower or any other Loan Party) to the Borrower during any
fiscal quarter and during a period of fifteen days following such
fiscal quarter and not otherwise deposited into the Company's Funds
Account or otherwise applied or allocated for application toward
Project Costs for either the Phase I Project or the Phase II Project,
in an aggregate amount not to exceed $20,000,000 per fiscal quarter,
may at the written election of the Borrower to the Administrative
Agent (such election to be made during the fiscal quarter in which
such cash equity contributions were made or during the fifteen day
period following such fiscal quarter) be included in Consolidated
EBITDA for such quarter for purposes of any calculations made
pursuant to Section 7.1 only; provided that the Borrower may not
include such cash equity contributions in Consolidated EBITDA (i) if
any Default or Event of Default has occurred and is continuing at the
time such cash contribution is made (other than in respect of Section
7.1 for the most recent fiscal quarter of the Borrower absent
application of this provision) or (ii) in any event, after the
Borrower has elected to include any such cash equity contributions in
Consolidated EBITDA in accordance with this sentence for three
consecutive fiscal quarters unless, following any such three
consecutive fiscal quarters, the Borrower has thereafter been in
compliance with Section 7.1 (without giving affect to any previous
cash contributions included in Consolidated EBITDA in accordance with
this sentence) on at least one Quarterly Date.
"Consolidated Interest Coverage Ratio": for any period, the
ratio of (a) Consolidated EBITDA of the Borrower and its Subsidiaries
for such period to (b) Consolidated Interest Expense of the Borrower
and its Subsidiaries for such period.
"Consolidated Interest Expense": of any Person for any
period, total interest expense (including that attributable to
Capital Lease Obligations in accordance with GAAP) of such Person and
its Subsidiaries for such period and any interest capitalized during
such period, with respect to all outstanding Indebtedness of such
Person and its Subsidiaries (including, without limitation, all
commissions, discounts and other fees and charges owed by such
Persons with respect to letters of credit and bankers' acceptance
financing and net costs of such Persons under Hedge Agreements in
respect of interest rates to the extent such net costs are allocable
to such period in accordance with GAAP).
"Consolidated Leverage Ratio": for any period, the ratio of
(a) Consolidated Total Debt on the last day of such period to (b)
Consolidated EBITDA of the Borrower for such period.
"Consolidated Member": a corporation, other than the common
parent, that is a member of an affiliated group (as defined in
Section 1504 of the Code) of which Wynn Resorts or any of the Loan
Parties is the common parent.
"Consolidated Net Income": of any Person for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries
for such period, determined on a consolidated basis in accordance
with GAAP and before any reduction in respect of preferred equity
dividends, but giving effect to, without duplication, any amounts
paid or distributed by such Person or its Subsidiaries as a Tax
Amount or Allocable Overhead if and to the same extent that such
amounts would have been included in the calculation of net income if
incurred by such Person or its Subsidiaries directly; provided, that
in calculating Consolidated Net Income of a Person (for purposes of
this definition only, the "Parent") and its consolidated Subsidiaries
for any period, there shall be excluded in each case to the extent
included in such Consolidated Net Income (a) the income (or deficit)
of any Person accrued prior to the date it becomes a Subsidiary of
the Parent or is merged into or consolidated with the Parent or any
of its Subsidiaries, (b) the income (or deficit) of any Person (other
than a Subsidiary of the Parent) in which the Parent or any of its
Subsidiaries has an ownership interest, except to the extent that any
such income is actually received by the Parent or such Subsidiary in
the form of dividends or similar distributions, (c) the undistributed
earnings of any Subsidiary of the Parent to the extent that the
declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of any
Contractual Obligation (other than under any Financing Agreement) or
Requirement of Law applicable to such Subsidiary, (d) to the extent
not reflected as a charge in the statement of such Consolidated Net
Income, any Management Fees paid during such period and (e) the
cumulative effect of a change in accounting principles.
"Consolidated Total Debt": at any date, an aggregate amount
equal to (a) the aggregate principal amount of all Indebtedness of
the Borrower and its Subsidiaries at such date less (b) for periods
on and after the first Quarterly Date (in the event that the Phase II
Commitment Sunset Date occurs without the Phase II Approval Date
having occurred) or the Initial Phase II Calculation Date (in the
event that the Phase II Approval Date occurs on or prior to the Phase
II Commitment Sunset Date), an amount equal to the product of (i) A
less B less C times (ii) D (in each case as defined below), in each
case determined on a consolidated basis in accordance with GAAP.
For purposes of the definition of Consolidated Total Debt at
any date:
A = the aggregate amount of cash and Cash
Equivalents of the Borrower and the other Loan
Parties on such date on deposit in an Account
with respect to which the Secured Parties have
a perfected first priority Lien securing the
Obligations pursuant to a Control Agreement,
B = the aggregate amount of Project Costs
reasonably anticipated to be incurred by the
Loan Parties on and after such date in order
to achieve Final Completion of the Phase I
Project (in the event that the Phase II
Commitment Sunset Date occurs without the
Phase II Approval Date having occurred) or the
Phase I Project and the Phase II Project (in
the event that the Phase II Approval Date
occurs on or prior to the Phase II Commitment
Sunset Date),
C = $16,000,000 (in the event that the Phase II
Commitment Sunset Date occurs without the
Phase II Approval Date having occurred) or
$20,000,000 (in the event that the Phase II
Approval Date occurs on or prior to the Phase
II Commitment Sunset Date) and
D = on Quarterly Dates, if any, prior to the Phase
I Completion Date, 1.00 and otherwise .75
"Consolidated Working Capital": at any date, the excess of
Consolidated Current Assets on such date over Consolidated Current
Liabilities on such date.
"Construction Agreement": as defined in the Disbursement
Agreement.
"Construction Consultant": Inspection & Valuation
International, Inc. or such other construction consultant of
recognized national standing appointed by the Administrative Agent
with, unless at the time of such appointment there exists an Event of
Default, the consent of the Borrower (such consent not to be
unreasonably withheld or delayed).
"Continuing Directors": as of any date of determination,
with respect to any Person, any member of the Board of Directors of
such Person who (a) was a member of such board of directors on the
Closing Date or (b) was nominated for election or elected to such
Board of Directors with the approval of a majority of the Continuing
Directors who were members of such board at the time of such
nomination or election.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or
any of its Property is bound.
"Control Agreements": collectively, (a) the Completion
Guaranty Collateral Account Agreement, (b) the Company Disbursement
Collateral Account Agreement, (c) the Local Company Collateral
Account Agreement(s) and (d) each control agreement executed and
delivered by any Loan Party from time to time pursuant to the
Security Agreement, substantially in the form of Exhibit C, Exhibit D
or Exhibit E, as the case may be, thereto.
"Dealership Lease Agreement": that certain Lease Agreement,
to be entered into between the Borrower, as lessor, and an Affiliate
of the Borrower, as lessee, with respect to the lease of space at the
Phase I Project for the development and operation of a Ferrari and
Maserati automobile dealership.
"Default": the occurrence of any of the events specified in
Section 8, whether or not any requirement for the giving of notice,
the lapse of time, or both, has been satisfied.
"Defaulting Lender": at any time, (a) any Lender with
respect to which a Lender Default is in effect, (b) any Lender that
is the subject (as a debtor) of any action or proceeding (i) under
any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (ii) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any
substantial part of its assets, (c) any Lender that shall make a
general assignment for the benefit of its creditors or (d) any Lender
that shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due.
"Derivatives Counterparty": as defined in Section 7.6.
"Disbursement Account": as defined in the Disbursement
Agreement.
"Disbursement Agent": Deutsche Bank Trust Company Americas,
in its capacity as Disbursement Agent under the Disbursement
Agreement, and any successor Disbursement Agent appointed pursuant to
the terms of the Disbursement Agreement.
"Disbursement Agreement": the Master Disbursement Agreement
substantially in the form of Exhibit C hereto, dated as of the date
hereof, among the Borrower, the Administrative Agent, the 2014 Notes
Indenture Trustee and the Disbursement Agent.
"Disbursement Agreement Event of Default": an "Event of
Default" as defined in the Disbursement Agreement.
"Disposition": with respect to any Property, any sale,
lease, assignment, conveyance, transfer or other disposition thereof
and, in the case of Dispositions of the Golf Course Land and the Home
Site Land permitted under Sections 7.5(k) and 7.5(l), respectively,
the transfer of the Golf Course Land and the Home Site Land to Wynn
Resorts (or any other parent entity of the Loan Parties) pursuant to
a dividend or other Restricted Payment; and the terms "Dispose" and
"Disposed of" shall have correlative meanings. Notwithstanding the
foregoing, the transfer by a Loan Party of water rights from one
permit to another permit held by such Loan Party or held by another
Loan Party shall in no event be considered a "Disposition" for the
purposes of the Loan Documents.
"Disqualified Stock": any Capital Stock of any Loan Party
that any Loan Party is or, upon the passage of time or the occurrence
of any event, may become obligated to redeem, purchase, retire,
defease or otherwise make any payment in respect of (whether by its
terms or by the terms of any security into which it is convertible,
or for which it is exchangeable, in each case at the option of the
holder of the Capital Stock), whether pursuant to a sinking fund
obligation or otherwise, on or prior to the date that is 91 days
after the Scheduled Term Loan Termination Date. Notwithstanding the
preceding sentence, any Capital Stock will not constitute
Disqualified Stock solely because it is required to be redeemed under
applicable Nevada Gaming Laws.
"Documentation Agents": collectively, Bear Stearns Corporate
Lending Inc., in its capacity as a joint documentation agent,
JPMorgan Chase Bank, N.A., in its capacity as a joint documentation
agent, and Societe Generale, in its capacity as a joint documentation
agent.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Domestic Subsidiary": any Subsidiary of the Borrower
organized under the laws of any jurisdiction within the United States
of America.
"ECF Percentage": with respect to any Fiscal Year, a
percentage determined by the Consolidated Leverage Ratio for the four
consecutive fiscal quarter period ending on the last day of such
Fiscal Year as set forth below:
|---------------------------------|---------------------|
| Consolidated Leverage Ratio | ECF Percentage |
|---------------------------------|---------------------|
| x > 4.50:1 | 75% |
|---------------------------------|---------------------|
| 3.50:1 < x < 4.50:1 | 50% |
|---------------------------------|---------------------|
| x < 3.50:1 | 0% |
|---------------------------------|---------------------|
"Eligible Assignee": (a) (i) a commercial bank organized
under the laws of the United States or any state thereof; (ii) a
savings and loan association or savings bank organized under the laws
of the United States or any state thereof; (iii) a commercial bank
organized under the laws of any other country or a political
subdivision thereof; provided, that (x) such bank is acting through a
branch or agency located in the United States or (y) such bank is
organized under the laws of a country that is a member of the
Organization for Economic Cooperation and Development or a political
subdivision of such country; and (iv) any other entity which is an
"accredited investor" (as defined in Regulation D under the
Securities Act) which extends credit or buys loans as one of its
businesses including insurance companies, mutual funds and lease
financing companies; and (b) for purposes of Sections 10.13(a) and
2.25, any Lender or Affiliate or Affiliated Fund of any Lender
(provided, that if any funding obligations are assigned to an
Affiliate of a Lender or Affiliated Fund, such Affiliate or
Affiliated Fund, as applicable, shall have demonstrable resources to
comply with such obligations); provided, that neither an Affiliate of
the Borrower nor any Person which has been denied an approval or a
license, or otherwise found unsuitable, under the Nevada Gaming Laws
applicable to the Lenders shall be an Eligible Assignee; provided,
further that so long as no Event of Default shall have occurred and
be continuing, no (i) Person that owns or operates a casino located
in the State of Nevada (or is an Affiliate of such a Person)
(provided, that a passive investment constituting less than 20% of
the common stock of any such casino shall not constitute ownership
thereof for the purposes of this definition) or (ii) Person that owns
or operates a convention, trade show or exhibition facility in Las
Vegas, Nevada or Clark County, Nevada (or an Affiliate of such a
Person) (provided, that a passive investment constituting less than
20% of the common stock of any such convention or trade show facility
shall not constitute ownership for the purpose of this definition),
shall be an Eligible Assignee.
"Eminent Domain Proceeds": all cash and cash equivalents
received in respect of any Event of Eminent Domain relating to the
Project net of (a) all direct costs of recovery of such Eminent
Domain Proceeds (including legal, accounting, appraisal and insurance
adjuster fees and expenses), (b) amounts required to be applied to
the repayment of Indebtedness secured by a Lien (including any
penalty, premium or make-whole amounts related thereto) expressly
permitted hereunder on any asset which is the subject of the Event of
Eminent Domain to which such Eminent Domain Proceeds relate (other
than any Lien pursuant to a Security Document or any other First Lien
Security Document or any Second Lien Security Document) and (c) all
taxes paid or reasonably estimated to be payable as a result thereof
(after taking into account any tax credits or deductions and any tax
sharing arrangements, in each case reducing the amount of taxes so
paid or estimated to be payable).
"Environmental Claim": any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order
or other order or directive (conditional or otherwise), by any
governmental authority or any other Person, arising (a) pursuant to
or in connection with any actual or alleged violation of any
Environmental Law, (b) in connection with any Hazardous Substances or
any actual or alleged Hazardous Materials Activity, or (c) in
connection with any actual or alleged damage, injury, threat or harm
to health, natural resources or the environment.
"Environmental Laws": any and all laws, rules, orders,
regulations, statutes, ordinances, guidelines, codes, decrees, or
other legally enforceable requirements (including, without
limitation, common law) of any international authority, foreign
government, the United States, or any state, local, municipal or
other Governmental Authority, regulating, relating to or imposing
liability or standards of conduct concerning protection of the
environment or of human health, or employee health, as has been, is
now, or may at any time hereafter be, in effect, including, without
limitation,
(a) the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980,
as amended (42 U.S.C. Section 9601 et seq.)
("CERCLA");
(b) the Federal Water Pollution Control
Act (33 U.S.C. Section 1251 et seq.) ("Clean Water
Act" or "CWA");
(c) the Resource Conservation and Recovery
Act (42 U.S.C. Section 6901 et seq.) ("RCRA");
(d) the Atomic Energy Act of 1954 (42
U.S.C. Section 2011 et seq.) ("AEA");
(e) the Clean Air Act (42 U.S.C. Section
7401 et seq.);
(f) the Emergency Planning and Community
Right-to-Know Act (42 U.S.C. Section 11001 et
seq.);
(g) the Federal Insecticide, Fungicide,
and Rodenticide Act (7 U.S.C. Section 136 et seq.)
("FIFRA");
(h) the Oil Pollution Act of 1990 (P.L.
101-380, 32 U.S.C. 2702 et seq.);
(i) the Safe Drinking Water Act (42 U.S.C.
Sections 300f et seq.) ("SDWA");
(j) the Surface Mining Control and
Reclamation Act of 1977 (30 U.S.C. Sections 1201 et
seq.);
(k) the Toxic Substances Control Act (15
U.S.C. Section 2601 et seq.) ("TSCA");
(l) the Hazardous Materials Transportation
Act (49 U.S.C. Section 1801 et seq.);
(m) the Uranium Mill Tailings Radiation
Control Act of 1978 (42 U.S.C. Section 7901 et
seq.) ("UMTRCA");
(n) the Occupational Safety and Health Act
(29 U.S.C. Section 651 et seq.) ("OSHA") as it
relates solely to exposure to Hazardous Substances;
(o) the Nevada Hazardous Materials law
(NRS Chapter 459);
(p) the Nevada Collection and Disposal of
Solid Waste/Sewage law (NRS Section 444.440 et
seq.);
(q) the Nevada Water Controls/Pollution
law (NRS Chapter 445A);
(r) the Nevada Air Pollution law (NRS
Chapter 445B);
(s) the Nevada Cleanup of Discharged
Petroleum law (NRS 590.700 to 590.920, inclusive);
(t) the Nevada Control of Asbestos law
(NRS 618.750 to 618.850);
(u) the Nevada Appropriation of Public
Waters law (NRS 533.324 to 533.435, inclusive);
(v) the Nevada Artificial Water Body
Development Permit law (NRS 502.390);
(w) the Nevada Environmental Requirements
Law (NRS 445C.010 to NRS 445C.120, inclusive);
(x) the Nevada Occupational Safety and
Health Act (NRS 618.005 et seq, inclusive)(as it
relates solely to exposure to Hazardous
Substances);
(y) the Laws Regarding the Authority of
Nevada State Fire Marshall Division (NRS 477.010 to
477.250, inclusive);
(z) the Uniform Fire Code, as now or
hereafter adopted in the State of Nevada;
(aa) the Nevada Protection of Endangered
Species, Endangered Wildlife Permit (NRS 503.585)
and Endangered Flora Permit law (NRS 527.270); and
(bb) and all other Federal, state and
local Legal Requirements which govern Hazardous
Substances, and the regulations adopted and
publications promulgated pursuant to all such
foregoing laws.
"Environmental Matter": any:
(a) release, emission, entry or
introduction into the air including, without
limitation, the air within buildings and other
natural or man-made structures above ground;
(b) discharge, release or entry into water
including, without limitation, into any river,
watercourse, lake, or pond (whether natural or
artificial or above ground or which joins or flows
into any such water outlet above ground) or
reservoir, or the surface of the riverbed or of
other land supporting such waters, ground waters,
sewer or the sea;
(c) deposit, disposal, keeping, treatment,
importation, exportation, production,
transportation, handling, processing, carrying,
manufacture, collection, sorting or presence of any
Hazardous Substance;
(d) nuisance, noise, defective premises,
health and safety at work, industrial illness,
industrial injury due to environmental factors,
environmental health problems (including, without
limitation, asbestosis or any other illness or
injury caused by exposure to asbestos) or
genetically modified organisms;
(e) conservation, preservation or
protection of the natural or man made environment
or any living organisms supported by the natural or
man made environment; or
(f) other matter howsoever directly
affecting the environment or any aspect of it.
"Environmental Permits": any and all permits, licenses,
approvals, registrations, notifications, exemptions and any other
authorization required under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied
to a Eurodollar Loan, the then stated maximum rate of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves under any regulations of the
Board or other Governmental Authority having jurisdiction with
respect thereto or otherwise required by applicable law) applicable
to any member bank of the Federal Reserve System in respect of
eurocurrency funding or liabilities as defined in Regulation D (or
any successor category of liabilities under Regulation D).
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
(a) the rate per annum determined by the Administrative Agent at
approximately 11:00 A.M. (London time) on the date that is two
Business Days prior to the commencement of such Interest Period by
reference to the rate for eurodollar deposits which appears on the
page of the Telerate screen that displays an average British Bankers
Association Interest Settlement Rate (such page currently being page
number 3740 or page 3750 of the Telerate screen) for a period equal
to such Interest Period (provided that, to the extent that an
interest rate is not ascertainable pursuant to the foregoing
provisions of this clause (a), the rate determined pursuant to this
clause (a) shall be the offered quotation to first-class banks in the
New York interbank Eurodollar market by the Administrative Agent for
Dollar deposits of amounts in immediately available funds comparable
to the outstanding principal amount of such Eurodollar Loan of the
Administrative Agent (in its capacity as a Lender) with maturities
comparable to the Interest Period applicable to such Eurodollar Loan
as of 10:00 A.M. (New York time) on the date that is two Business
Days prior to the commencement of such Interest Period), divided by
(b) a percentage equal to 100% minus the Eurocurrency Reserve
Requirements.
"Eurodollar Tranche": the collective reference to Eurodollar
Loans the then current Interest Periods with respect to all of which
begin on the same date and end on the same later date (whether or not
such Loans shall originally have been made on the same day).
"Event of Default": the occurrence of any of the events
specified in Section 8, provided that all requirements for the giving
of notice and the lapse of time have been satisfied.
"Event of Eminent Domain": with respect to any Property, (a)
any compulsory transfer or taking by condemnation, seizure, eminent
domain or exercise of a similar power, or transfer under threat of
such compulsory transfer or taking or confiscation of such Property
or the requisition of the use of such Property, by any agency,
department, authority, commission, board, instrumentality or
political subdivision of any state, the United States or another
Governmental Authority having jurisdiction or (b) any settlement in
lieu of clause (a) above.
"Excess Cash Flow": for any Fiscal Year, the excess, if any,
of (a) the sum, without duplication, of (i) Consolidated Net Income
of the Loan Parties for such Fiscal Year, (ii) an amount equal to the
amount of all non-cash charges (including depreciation and
amortization charges) deducted in arriving at such Consolidated Net
Income, (iii) decreases in Consolidated Working Capital of the Loan
Parties for such Fiscal Year, (iv) an amount equal to the aggregate
net non-cash loss on the Disposition of Property by the Loan Parties
during such Fiscal Year (other than sales of inventory in the
ordinary course of business), to the extent deducted in arriving at
such Consolidated Net Income and (v) the net increase during such
Fiscal Year (if any) in deferred tax accounts of the Loan Parties
over (b) the sum, without duplication, of (i) an amount equal to the
amount of all non-cash credits included in arriving at such
Consolidated Net Income, (ii) the aggregate amount actually paid by
the Loan Parties in cash during such Fiscal Year on account of
Capital Expenditures excluding the principal amount of Indebtedness
incurred in connection with such expenditures and any such
expenditures financed with the proceeds of any Reinvestment Deferred
Amount or capital equity contributions received directly or
indirectly from Wynn Resorts, (iii) with respect to the first Fiscal
Year for which Excess Cash Flow is determined in accordance with
Section 2.12(d), the aggregate amount of Project Costs anticipated to
be paid by the Loan Parties in the following Fiscal Year excluding
the principal amount of Indebtedness incurred or anticipated to be
incurred in connection with such expenditures and any such
expenditures financed or anticipated to be financed with capital
equity contributions received or anticipated to be received directly
or indirectly from Wynn Resorts; provided that any Project Costs
subtracted in the calculation of Excess Cash Flow pursuant to this
clause (iii) shall not be deemed "Capital Expenditures" for purposes
of the definition of Excess Cash Flow in the Fiscal Year actually
paid, (iv) the aggregate amount of all prepayments of Revolving
Credit Loans and Swing Line Loans during such Fiscal Year to the
extent accompanying permanent optional reductions of the Revolving
Credit Commitments and all optional prepayments of the Term Loans and
other Funded Debt (in the event consisting of revolving credit
facilities, to the extent accompanied by permanent optional
reductions of the related revolving commitments in the amount of any
such prepayments) during such Fiscal Year, (v) the aggregate amount
of all regularly scheduled principal payments of Funded Debt
(including, without limitation, the Term Loans) of the Loan Parties
made during such Fiscal Year (other than in respect of any revolving
credit facility to the extent there is not an equivalent permanent
reduction in commitments thereunder such that after giving effect to
such commitment reduction the applicable Loan Party, as the case may
be, would not be able to reborrow all or any of the amount so
prepaid), (vi) increases in Consolidated Working Capital of the Loan
Parties for such Fiscal Year, (vii) an amount equal to the aggregate
net non-cash gain on the Disposition of Property by the Loan Parties
during such Fiscal Year (other than sales of inventory in the
ordinary course of business), to the extent included in arriving at
such Consolidated Net Income, (viii) the net decrease during such
Fiscal Year (if any) in deferred tax accounts of the Loan Parties and
(ix) the aggregate amount of (A) any mandatory prepayments of Funded
Debt during such Fiscal Year (including the Term Loans or the
Revolving Credit Loans pursuant to Section 2.12(b) but, in any case,
other than in respect of any revolving credit facility to the extent
there is not an equivalent permanent reduction in commitments
thereunder such that after giving effect to such commitment reduction
the applicable Loan Party, as the case may be, would not be able to
reborrow all or any of the amount so prepaid) with Net Cash Proceeds
of Asset Sales and (B) any Reinvestment Deferred Amounts paid on the
account of Capital Expenditures during such Fiscal Year, in each case
to the extent such Net Cash Proceeds or Reinvestment Deferred Amounts
are included in arriving at such Consolidated Net Income.
"Excess Cash Flow Application Date": as defined in Section
2.12(d).
"Excluded Assets": as defined in the Security Agreement.
"Excluded Taxes": taxes imposed on, or measured by, the net
profits, net income or gross receipts (including franchise taxes
imposed in lieu of any such taxes) of any Arranger, any Agent, any
Manager or any Lender as a result of a present or former connection
between such Arranger, such Agent, such Manager or such Lender and
the jurisdiction of the Governmental Authority imposing such tax or
any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from such Arranger's,
such Agent's, such Manager's or such Lender's having executed,
delivered or performed its obligations or received a payment under,
or enforced, this Agreement or any other Loan Document).
"Exhausted": as defined in the Disbursement Agreement.
"Existing Stockholders": collectively, Mr. Wynn, Aruze USA,
Inc., a Nevada corporation, Baron Asset Fund, a Massachusetts
business trust, and the Kenneth R. Wynn Family Trust and, in each
case, any Affiliates thereof.
"Facility": collectively, (a) each of the Term Loan Facility
and (b) the Revolving Credit Facility.
"Facility Fee Letter": the Credit Facilities Fee Letter,
dated November 15, 2004, among the Borrower, Wynn Resorts, the
Agents, the Arrangers and the Managers.
"Facility Proportionate Share": as of any date the
proportion that (a) the Total Extensions of Credit on such date bears
to (b) the aggregate principal amount of all First Lien Secured
Obligations on such date; provided that, except in the case where the
Facility Proportionate Share of any Insurance Proceeds and/or Eminent
Domain Proceeds exceeds $100,000,000, in the event the Facility
Proportionate Share of any amount is in excess of the Total Term Loan
Extensions of Credit at such time, the Facility Proportionate Share
of such amount shall equal the Total Term Loan Extensions of Credit
at such time.
"Federal Funds Effective Rate": for any day, the weighted
average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds
brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it.
"Final Completion": as defined in the Disbursement
Agreement.
"Final Completion Date": as defined in the Disbursement
Agreement.
"Financing Agreements": collectively, this Agreement and the
other Loan Documents, any other agreements relating to the First Lien
Secured Obligations and any agreements relating to the Second Lien
Secured Obligations and including, in each case, any agreements with
respect to Permitted Refinancing Indebtedness.
"First Lien Secured Obligations": as defined in the
Intercreditor Agreement.
"First Lien Security Document": as defined in the
Intercreditor Agreement.
"Fiscal Year": the fiscal year of the Borrower and the other
Loan Parties ending on December 31 of each calendar year.
"Former Lender": as defined in Section 10.13(a).
"Funded Debt": as to any Person, all Indebtedness of such
Person of the types described in clauses (a) through (e) of the
definition of "Indebtedness" in this Section.
"Funding Account": any Account with respect to which the
Secured Parties have a perfected first priority Lien (subject only to
Permitted Liens) securing the Obligations pursuant to a Control
Agreement of the type described in clause (d) of the definition
thereof.
"Funding Office": the office specified from time to time by
the Administrative Agent as its funding office by notice to the
Lenders.
"GAAP": subject to the limitations on the application
thereof set forth in Section 10.17, generally accepted accounting
principles in the United States of America as in effect from time to
time as set forth in the opinions and pronouncements of the
Accounting Principals Board and the American Institute of Certified
Public Accountants and the statements and pronouncements of the
Financial Accounting Standards Board, or in such other statements by
such other entity as may be in general use by significant segments of
the accounting profession.
"Gaming Facility": any building or other structure used or
expected to be used to enclose space in which a gaming operation is
conducted and (a) is wholly owned by a Loan Party or (b) any portion
or aspect of which is managed or used, or expected to be managed or
used, by a Loan Party.
"Gaming Reserves": any mandatory gaming security reserves or
other reserves required under applicable Nevada Gaming Laws or by
directive of the Nevada Gaming Authorities.
"Golf Course": Wynn Las Vegas' Tom Fazio/Stephen A. Wynn
designed 18-hole golf course to be situated on the Golf Course Land,
as more particularly described in Exhibit Q-3 to the Disbursement
Agreement.
"Golf Course Collateral": collectively, (a) the Golf Course
Land, (b) any other Property owned by Wynn Golf included as
Collateral and (c) all Capital Stock of Wynn Golf pledged as
Collateral.
"Golf Course Land": the land on which the Golf Course is to
be located, as described in Exhibit Q-3 to the Disbursement
Agreement. The Golf Course Land includes (a) the Wynn Home Site Land
until such time (if ever) as the Wynn Home Site Land has been
Disposed of in accordance with Section 7.5(j) and (b) the Home Site
Land until such time (if ever) as the Home Site Land has been
Disposed of in accordance with Section 7.5(l).
"Golf Course Lease": that certain Golf Course Lease, dated
as of the date hereof, by and between Wynn Golf, on the one hand, as
lessor, and the Borrower, on the other hand, as lessee, with respect
to the lease of land on which the Golf Course is to be located.
"Governing Documents": collectively, as to any Person, the
articles or certificate of incorporation and bylaws, any shareholders
agreement, articles of organization or certificate of formation,
limited liability company agreement, operating agreement, partnership
agreement or other formation or constituent documents of such Person.
"Governmental Authority": any national, state or local
government (whether domestic or foreign), any political subdivision
thereof or any other governmental, quasi-governmental, judicial,
public or statutory instrumentality, authority, body, agency, bureau
or entity, (including the Nevada Gaming Authorities, any zoning
authority, the FDIC, the Comptroller of the Currency or the Federal
Reserve Board, any central bank or any comparable authority), any
entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government or any
arbitrator with authority to bind a party at law.
"Guarantee": the Guarantee substantially in the form of
Exhibit A hereto, dated as of the date hereof, executed by each Loan
Party (other than the Borrower) in favor of the Administrative Agent.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), without duplication any obligation of (a) the guaranteeing
person or (b) another Person (including, without limitation, any bank
under any letter of credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counterindemnity or
similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness or other obligations (the "primary
obligations") of any other third Person (the "primary obligor") in
any manner, whether directly or indirectly, including, without
limitation, any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any
Property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth
or solvency of the primary obligor, (iii) to purchase Property,
securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation, or (iv) otherwise
to assure or hold harmless the owner of any such primary obligation
against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall
be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which
such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of
the instrument embodying such Guarantee Obligation, unless such
primary obligation and the maximum amount for which such guaranteeing
person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing
person's maximum reasonably anticipated liability in respect thereof
as determined by the Borrower in good faith.
"Guarantors": the collective reference to each of the Loan
Parties, other than the Borrower.
"Hazardous Materials Activity": any past, current, proposed
or threatened activity, event or occurrence involving any Hazardous
Substances, including the use, manufacture, possession, storage,
holding, presence, existence, location, Release, threatened Release,
discharge, placement, generation, transportation, processing,
construction, treatment, abatement, removal, remediation, disposal,
disposition or handling of any Hazardous Substances, and any
corrective action or response action with respect to any of the
foregoing.
"Hazardous Substances": (statutory acronyms and
abbreviations having the meaning given them in the definition of
"Environmental Laws") substances defined as "hazardous substances,"
"pollutants" or "contaminants" in Section 101 of the CERCLA; those
substances defined as "hazardous waste" by the RCRA; those substances
designated as a "hazardous substance" pursuant to Section 311 of the
CWA; those substances regulated as a hazardous chemical substance or
mixture or as an imminently hazardous chemical substance or mixture
pursuant to Sections 6 or 7 of the TSCA; those substances defined as
"contaminants" by Section 1401 of the SDWA, if present in excess of
permissible levels; those substances regulated by the Oil Pollution
Act; those substances defined as a pesticide pursuant to Section 2(u)
of the FIFRA; those substances defined as a source, special nuclear
or by-product material by Section 11 of the AEA; those substances
defined as "residual radioactive material" by Section 101 of the
UMTRCA; those substances defined as "toxic materials" or "harmful
physical agents" pursuant to Section 6 of the OSHA); those substances
defined as hazardous wastes in 40 C.F.R. Part 261.3; those substances
defined as hazardous waste constituents in 40 C.F.R. Part 260.10,
specifically including Appendix VII and VIII of Subpart D of 40
C.F.R. Part 261; those substances designated as hazardous substances
in 40 C.F.R. Parts 116.4 and 302.4; those substances defined as
hazardous substances or hazardous materials in 49 C.F.R. Part 171.8;
those substances regulated as hazardous materials, hazardous
substances, or toxic substances in any other Environmental Laws, and
in the regulations adopted and publications promulgated pursuant to
said laws, whether or not such regulations or publications are
specifically referenced herein.
"Hedge Agreements": all interest rate swaps, caps or collar
agreements or similar arrangements entered into by a Loan Party
providing for protection against fluctuations in interest rates or
currency exchange rates or the exchange of nominal interest
obligations, either generally or under specific contingencies.
"Home Site Land": a tract or tracts of land not greater than
20 acres located on the Golf Course Land where residential and other
non-gaming related developments may, after Disposition of the Home
Site Land in accordance with Section 7.5(l), be built.
"In Balance": as defined in the Disbursement Agreement.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person for the deferred purchase price of
Property or services (other than trade payables incurred in the
ordinary course of such Person's business), (c) all obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to
Property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such Property), (e) all
Capital Lease Obligations or Synthetic Lease Obligations of such
Person, (f) all obligations of such Person, contingent or otherwise,
as an account party under acceptance, letter of credit, performance
bonds or similar facilities, (g) all obligations of such Person,
contingent or otherwise, to purchase, redeem, retire or otherwise
acquire for value any Capital Stock of such Person where such
obligation is required within 180 days of the Scheduled Term Loan
Termination Date, valued in the case of preferred Capital Stock at
liquidation value, (h) all Guarantee Obligations of such Person in
respect of obligations of the kind referred to in clauses (a) through
(g) above; (i) all obligations of the kind referred to in clauses (a)
through (h) above secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be
secured by) any Lien on Property (including, without limitation,
accounts and contract rights) owned by such Person, whether or not
such Person has assumed or become liable for the payment of such
obligation and (j) for the purposes of Section 8(e) only, all
obligations of such Person in respect of Hedge Agreements.
"Indemnified Liabilities": as defined in Section 10.5.
"Indemnitee": as defined in Section 10.5.
"Indemnity Agreements": collectively, each of the Indemnity
Agreements executed by a Loan Party with respect to its Mortgaged
Properties in favor of the Administrative Agent substantially in the
form of Exhibit F hereto, including, without limitation, the Borrower
Indemnity Agreement, the Wynn Golf Indemnity Agreement and the Wynn
Sunrise Indemnity Agreement.
"Initial Lending Institution Provisions": Section 2.24 and
the definition of "Subordinated Debt".
"Initial Lending Institutions": collectively, Deutsche Bank
Trust Company Americas, Bank of America, N.A., Bear Stearns Corporate
Lending, Inc., Societe Generale and JPMorgan Chase Bank, N.A.
"Initial Phase II Calculation Date": the last day of the
first full fiscal quarter of the Borrower beginning after the Phase
II Opening Date.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Insurance Advisor": Marsh USA, Inc., or its successor,
appointed by the Administrative Agent with, unless at the time of
such appointment there exists an Event of Default, the consent of the
Borrower (such consent not to be unreasonably withheld or delayed);
provided, that the parties acknowledge and agree that, upon the
effectiveness of Charlie Moore and Mandy Woods-McNeil's departure
from Marsh USA Inc., Moore-McNeil, LLC shall automatically be deemed
to be the successor Insurance Advisor to Marsh USA, Inc.
"Insurance Proceeds": all cash and cash equivalents paid
under any casualty insurance policy maintained by a Loan Party other
than, at such times as any Loan Party has incurred Indebtedness
pursuant to Section 7.2(c), any such amounts received in respect of
the Aircraft, net of (a) all direct costs of recovery of such
Insurance Proceeds (including legal, accounting, appraisal and
insurance adjuster fees and expenses), (b) all amounts required to be
applied to the repayment of Indebtedness secured by a Lien (including
any penalty, premium or make-whole amounts related thereto) expressly
permitted hereunder on any asset which is the subject of the event to
which such Insurance Proceeds relate (other than any Lien pursuant to
a Security Document or any other First Lien Security Document or any
Second Lien Security Document) and (c) all taxes paid or reasonably
estimated to be payable as a result thereof (after taking into
account any tax credits or deductions and any tax sharing
arrangements, in each case reducing the amount of taxes so paid or
estimated to be payable).
"Insurance Requirements": all material terms of any
insurance policy required pursuant to this Agreement or any Security
Document and all material regulations and then current standards
applicable to or affecting any Mortgaged Property or any part thereof
or any use or condition thereof, which may, at any time, be
recommended by the Board of Fire Underwriters, if any, having
jurisdiction over any Mortgaged Property, or any other body
exercising similar functions.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property,
whether arising under United States, state, multinational or foreign
laws or otherwise, including, without limitation, copyrights,
patents, trademarks, service-marks, technology, know-how and
processes, recipes, formulas, trade secrets, or licenses (under which
the applicable Person is licensor or licensee) relating to any of the
foregoing and all rights to sue at law or in equity for any
infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.
"Intellectual Property Collateral": all Intellectual
Property of the Loan Parties, now owned or hereafter acquired, upon
which a Lien is purported to be created by the Intellectual Property
Security Agreements or the Security Agreement.
"Intellectual Property Security Agreement": any Intellectual
Property Security Agreement executed and delivered by a Loan Party
from time to time, substantially in the form of Exhibit C to the
Security Agreement.
"Intercreditor Agreement": the Intercreditor Agreement
substantially in the form of Exhibit K hereto, dated as of the date
hereof, among the Administrative Agent, the 2014 Notes Indenture
Trustee and the Collateral Agent.
"Interest Payment Date": (a) as to any Base Rate Loan, the
last day of each March, June, September and December to occur while
such Loan is outstanding and the final maturity date of such Loan,
(b) as to any Eurodollar Loan having an Interest Period of three
months or less, the last day of such Interest Period, (c) as to any
Eurodollar Loan having an Interest Period longer than three months,
each day which is three months, or an integral multiple thereof,
after the first day of such Interest Period and the last day of such
Interest Period and (d) as to any Loan (other than any Revolving
Credit Loan that is a Base Rate Loan (unless all Revolving Credit
Loans are being repaid in full in immediately available funds and the
Revolving Credit Commitments terminated) and any Swing Line Loan),
the date of any repayment or prepayment made in respect thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially,
the period commencing on the borrowing or conversion date, as the
case may be, with respect to such Eurodollar Loan and ending one,
two, three or six months thereafter, as selected by the Borrower in
its Notice of Advance Request, Notice of Borrowing or notice of
conversion, as the case may be, given with respect thereto; and (b)
thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the
Borrower by irrevocable notice to the Administrative Agent not less
than three Business Days prior to the last day of the then current
Interest Period with respect thereto; provided, that all of the
foregoing provisions relating to Interest Periods are subject to the
following:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest
Period into another calendar month in which event such
Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period that would otherwise
extend beyond the Scheduled Revolving Credit Termination
Date or the Scheduled Term Loan Termination Date, as the
case may be, shall end on the Revolving Credit Termination
Date or the Term Loan Termination Date, as applicable; and
(iii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the
last Business Day of a calendar month.
"Investments": as defined in Section 7.8.
"Issuing Lender": Deutsche Bank Trust Company Americas and
any other Revolving Credit Lender which at the request of the
Borrower and with the consent of the Administrative Agent agrees to
issue Letters of Credit. As of the Closing Date, the sole Issuing
Lender shall be Deutsche Bank Trust Company Americas.
"Koval Land": the approximately 18 acres of land located
across from the Project on Koval Lane and Sands Avenue and owned as
of the Closing Date by Wynn Sunrise.
"L/C Commitment": $25,000,000.
"L/C Fee Payment Date": the last day of each March, June,
September and December and the last day of the Revolving Credit
Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum
of (a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of
drawings under Letters of Credit that have not then been reimbursed
pursuant to Section 3.5.
"L/C Participants": the collective reference to all the
Revolving Credit Lenders other than the Issuing Lender.
"Las Vegas Jet": Las Vegas Jet, LLC, a Nevada limited
liability company.
"Last Project Final Completion Date": a defined in the
Disbursement Agreement.
"Lender Addendum": with respect to any initial Lender, a
Lender Addendum, substantially in the form of Exhibit J hereto, to be
executed and delivered by such Lender on the Closing Date as provided
in Section 10.18.
"Lender Default": the failure or refusal (which has not been
retracted in writing) of a Lender to make available (a) its portion
of any Loan required to be made by such Lender hereunder (including,
without limitation, under Section 2.7(b)), (b) its portion of any
unreimbursed payment required to be made by such Lender under Section
3.4, (c) its portion of any participating interest required to be
purchased by such Lender pursuant to Section 2.7(c) or (d) any amount
required to be paid and/or reimbursed by such Lender to any Agent or
any other Lender hereunder or under any other Loan Document (whether
pursuant to Section 2.18(e) or otherwise), in each case at or prior
to such time that the same is required to be so made, reimbursed or
purchased by such Lender.
"Lenders": the Swing Line Lender, each Revolving Credit
Lender, each Term Loan Lender and the Issuing Lender.
"Letter of Credit Commitment Period": the period from and
including the Closing Date to the date that is 30 days prior to the
Scheduled Revolving Credit Termination Date.
"Letter of Credit Request": a certificate duly executed by a
Responsible Officer of the Borrower substantially in the form of
Exhibit O hereto.
"Letters of Credit": as defined in Section 3.1(a).
"License Revocation": the revocation, failure to renew or
suspension of, or the appointment of a receiver or similar official
with respect to, any casino, gambling or gaming license, including,
without limitation, any Nevada Gaming Approvals, covering any portion
of the Project.
"Lien": with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in
respect of such Property, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or
other title retention agreement, any lease in the nature thereof and
any option or other agreement to sell or give a security interest in
such Property but excluding any license or similar agreement (such as
an option to obtain a license) of Intellectual Property).
"Liquidated Damages": any proceeds or liquidated damages
paid pursuant to any obligation, default or breach under the Project
Documents (net of costs, fees and expenses incurred by a Loan Party
pursuant to arm's length transactions in connection with adjustment
or settlement thereof and taxes paid with respect thereto). For
purposes of this definition, so-called "liquidated damages" insurance
policies shall be deemed to be Project Documents.
"Liquidity Reserve Payment Date": the date no later than
five days after the earlier of (a) the date on which the financial
statements of the Loan Parties referred to in Section 6.1(a) or (b),
as the case may be, for the Quarterly Date upon which the
requirements of Section 2.12(f) are satisfied, are required to be
delivered to the Lenders and (b) the date such financial statements
are actually delivered.
"Loan": any Revolving Credit Loan, Term Loan or Swing Line
Loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Security Documents,
the Disbursement Agreement, the Intercreditor Agreement, the
Management Fee Subordination Agreement, the Completion Guaranty, the
Indemnity Agreements, the Notes, the Administrative Agent Fee Letter,
the Facility Fee Letter and any other loan agreements entered into
from time to time by any Loan Party with the Administrative Agent in
its capacity as such.
"Loan Parties": the Borrower, Capital Corp., Show
Performers, Wynn Golf, Wynn Sunrise, World Travel, Las Vegas Jet and
each other Subsidiary of the Borrower (including any such Subsidiary
that becomes a party to a Loan Document pursuant to Section 6.10(b))
other than the Completion Guarantor or any trust that owns the
Aircraft.
"Local Company Collateral Account Agreement(s)": as defined
in the Disbursement Agreement.
"Loss Proceeds": as defined in the Disbursement Agreement.
"Macau Loan": the Investments described in Section 7.8(l).
"Major Project Participant": each Person who is a party to a
Material Contract (other than a Loan Party).
"Majority Initial Lending Institutions": at any time, the
Initial Lending Institutions holding more than 50% of the sum of (i)
the Total Initial Lending Institutions Term Loan Commitments then in
effect or, if the Term Loan Commitments have been terminated, the
Total Initial Lending Institutions Term Loan Extensions of Credit
then outstanding and (ii) the Total Initial Lending Institutions
Revolving Credit Commitments then in effect or, if the Revolving
Credit Commitments have been terminated, the Total Initial Lending
Institutions Revolving Extensions of Credit then outstanding;
provided, that, for purposes of determining the Revolving Credit
Commitments, Term Loan Commitments, Revolving Extensions of Credit or
Term Loan Extensions of Credit, as applicable, held by an Initial
Lending Institutions at any time pursuant to this definition only,
each Initial Lending Institutions shall be deemed to hold such
Revolving Credit Commitments, Term Loan Commitments, Revolving
Extensions of Credit or Term Loan Extensions of Credit, as
applicable, held by its Affiliates in addition to that held by it
directly.
"Majority of the Arrangers": at any time, the majority of
the Arrangers, as determined by number of Arrangers and not by
Commitments or other extensions of credit under this Agreement or the
other Loan Documents.
"Management Agreement": the Management Agreement, dated as
of the date hereof, between the Loan Parties, on the one hand, and
Wynn Resorts, on the other hand.
"Management Fee Subordination Agreement": the Management Fee
Subordination Agreement, dated as of December 14, 2004, among the
Loan Parties, Wynn Resorts, the 2014 Notes Indenture Trustee and the
Administrative Agent.
"Management Fees": as defined in the Management Agreement.
"Managers": collectively, Deutsche Bank Securities Inc., in
its capacity as a joint book running manager, Banc of America
Securities LLC, in its capacity as a joint book running manager,
Bear, Stearns & Co. Inc., in its capacity as a joint book running
manager, SG Americas Securities, LLC, in its capacity as joint book
running manager, and J.P. Morgan Securities Inc., in its capacity as
joint book running manager.
"Material Adverse Effect": one or a combination of
conditions or changes affecting, in a material adverse way (a) the
business, assets, liabilities, property, condition (financial or
otherwise), results of operations, prospects, value or management of
the Borrower and the other Loan Parties taken as a whole, (b) the
Project, (c) the validity or enforceability of this Agreement or any
of the other Loan Documents, (d) the validity, enforceability or
priority of the Liens purported to be created by the Security
Documents, or (e) the rights or remedies of any Secured Party
hereunder or under any of the other Loan Documents.
"Material Construction Agreements": as defined in the
Disbursement Agreement.
"Material Contract": (a) the Material Construction
Agreements, the Golf Course Lease, the Management Agreement, the
Project Services Agreement and the Water Show Entertainment and
Production Agreement and (b) any other contract or arrangement to
which (i) a Loan Party, on the one hand, and an Affiliate of such
Loan Party (including any other Loan Party), on the other hand, are
parties pursuant to which the Loan Parties are, or any one of them
is, reasonably expected to incur obligations or liabilities with a
Dollar value in excess of $5,000,000 during the term of such contract
or arrangement or (ii) any Loan Party is a party (other than the
Financing Documents or any other agreements relating to Indebtedness
permitted hereunder) for which breach, nonperformance, cancellation
or failure to renew could reasonably be expected to have a Material
Adverse Effect (taking into consideration any viable replacements or
substitutions therefor at the time such determination is made).
"Moody's": Moody's Investors Service, Inc., a Delaware
corporation, or any successor thereof.
"Mortgaged Properties": the real properties and leasehold
estates listed on Schedule 1.1 or otherwise as to which the
Collateral Agent for the benefit of, among others, the Secured
Parties shall be granted a Lien pursuant to the Mortgages. For
purposes of clarification, subject to Section 6.7, the leasehold
estate described under number 2 of Schedule 4.25(a) is not a
Mortgaged Property and the Lien of the Secured Parties created under
the Security Documents shall not attach thereto.
"Mortgages": each of the mortgages, deeds of trust and deeds
to secure Obligations made by any Loan Party in favor of, or for the
benefit of, the Collateral Agent for the benefit of the Secured
Parties (including, without limitation, the Borrower Mortgage, the
Wynn Golf Mortgage and the Wynn Sunrise Mortgage), substantially in
the form of Exhibit D hereto (with such changes thereto as shall be
advisable under the law of the jurisdiction in which such mortgage,
deed of trust or deed is to be recorded).
"Mr. Wynn": Stephen A. Wynn, an individual, and his heirs.
"Multiemployer Plan": a Plan that is a multiemployer plan as
defined in Section 3(37) or 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale
or other Disposition, the proceeds thereof in the form of cash and
Cash Equivalents (including any such proceeds received by way of
deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise, but
only as and when received) of such Asset Sale or other Disposition,
net of attorneys' fees, accountants' fees, investment banking fees,
amounts required to be applied to the repayment of Indebtedness
secured by a Lien (including any penalty, premium or make-whole
amounts related thereto) expressly permitted hereunder on any asset
which is the subject of such Asset Sale or other Disposition (other
than any Lien pursuant to a Security Document or any other First Lien
Security Document or any Second Lien Security Document), commissions,
related surety costs and title insurance premiums and other fees and
expenses, in each case, to the extent actually incurred or reimbursed
by a Loan Party in connection with such Asset Sale or other
Disposition and net of taxes paid or reasonably estimated to be
payable (after taking into account any tax credits or deductions and
any tax sharing arrangements, in each case reducing the amount of
taxes so paid or estimated to be payable), purchase price adjustments
reasonably expected to be payable and reserves or other set asides
against liabilities, in each case as a result thereof and (b) in
connection with any issuance or sale of debt securities or
instruments or the incurrence of loans, the cash proceeds received
from such issuance or incurrence, net of attorneys' fees, investment
banking fees, accountants' fees, underwriting discounts and
commissions and other fees and expenses, in each case, to the extent
actually incurred or reimbursed by a Loan Party in connection
therewith.
"Net Revenues": for any period, the net revenues of the
Borrower and its consolidated Subsidiaries, as set forth on the
Borrower's income statement for the relevant period under the line
item "net revenues," calculated in accordance with GAAP and with
Regulation S-X under the Securities Act and in a manner consistent
with that customarily utilized in the gaming industry.
"Nevada Collateral Agent": Bank of America, N.A., as
collateral agent under the Collateral Agency Agreement.
"Nevada Gaming Approvals": with respect to any action by a
particular Person, any consent, approval or other authorization
required for such action by such Person from a Nevada Gaming
Authority or under Nevada Gaming Laws.
"Nevada Gaming Authorities": collectively, the Nevada Gaming
Commission, the Nevada State Gaming Control Board, the Clark County
Liquor and Gaming Licensing Board and any other federal, state or
local agency having jurisdiction over gaming operations in the State
of Nevada.
"Nevada Gaming Laws": the Nevada Gaming Control Act, as
codified in Chapter 463 of the NRS, the regulations of the Nevada
Gaming Commission promulgated thereunder, as amended from time to
time, and other laws or regulations promulgated by the Nevada Gaming
Authorities and applying to gaming operations in the State of Nevada.
"Non-Defaulting Lender": any Lender other than a Defaulting
Lender.
"Non-Excluded Taxes": as defined in Section 2.20(a).
"Non-U.S. Lender": as defined in Section 2.20(f).
"Notes": the collective reference to the Revolving Credit
Notes, the Term Notes and the Swing Line Notes, if any, evidencing
Loans.
"Notice of Advance Request": as defined in the Disbursement
Agreement.
"Notice of Borrowing": a certificate duly executed by a
Responsible Officer of the Borrower substantially in the form of
Exhibit M hereto.
"NRS": the Nevada Revised Statutes, as amended from time to
time.
"Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity
of the Loans and Reimbursement Obligations and interest accruing
after the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding, relating to any
Loan Party, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Loans and all other
obligations and liabilities of Wynn Resorts Holdings, or the Loan
Parties to any Arranger, to any Agent, to any Manager or to any
Lender (or, in the case of Specified Hedge Agreements, any affiliate
of any Lender), whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, this Agreement, any
other Loan Document, the Letters of Credit, any Specified Hedge
Agreement or any other document made, delivered or given in
connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees, charges and
disbursements of counsel to any Arranger, to any Agent, to any
Manager or to any Lender that are required to be paid by any Loan
Party pursuant hereto or to any other Loan Document) or otherwise.
"On-Site Cash": amounts held in cash at the Site in
connection with and necessary for the ordinary course operations of
the Project.
"Opening Date": as defined in the Disbursement Agreement.
"Operative Documents": the Financing Agreements and the
Project Documents.
"Participant": as defined in Section 10.6(b).
"Pass Through Entity": any of (a) a grantor trust for
federal or state income tax purposes or (b) an entity treated as a
partnership or a disregarded entity for federal or state income tax
purposes.
"Payment Amount": as defined in Section 3.5.
"Payment Office": the office of the Administrative Agent
specified in Section 10.2 or as otherwise specified from time to time
by the Administrative Agent as its payment office by notice to the
Borrower and the Lenders.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permits": the collective reference to (a) Environmental
Permits and (b) any and all other franchises, licenses, leases,
permits, approvals, notifications, certifications, registrations,
authorizations, exemptions, variances, qualifications, easements,
rights of way, Liens and other rights, privileges and approvals
required under any Requirement of Law (including Nevada Gaming Laws),
but excluding any license or similar agreement (such as an option to
obtain a license) of Intellectual Property .
"Permitted Businesses": (a) the gaming business, (b) the
development, construction, ownership and operation of a Gaming
Facility, (c) all businesses, whether or not licensed by the Nevada
Gaming Authorities, which are necessary for, incident to, useful to,
arising out of, supportive of or connected to the development,
construction, ownership or operation of a Gaming Facility, (d) any
development, construction, ownership or operation of lodging, retail,
restaurant or convention facilities, sports or entertainment
facilities, golf course facilities, art gallery facilities, food and
beverage distribution operations, transportation services (including
operation of the Aircraft and chartering thereof), parking services,
sales and marketing services, sales, leasing and repair of
automobiles or other activities related to the foregoing, (e) any
development, construction, ownership or operation of a full
destination service resort, including, without limitation,
residential or vacation housing facilities (including, without
limitation, timeshares, interval ownership and condominiums and
similar developments), and parking services, sales and marketing
services or other activities related to the foregoing, (f) any
business (including any related internet business) that is a
reasonable extension, development or expansion of any of the
foregoing or incidental thereto and/or (g) the ownership by a Person
of Capital Stock in its Subsidiaries; provided, however, that with
respect to the Borrower and its Subsidiaries other than, with respect
to the ownership and operation of the Aircraft only, World Travel and
Las Vegas Jet, the foregoing shall only be Permitted Businesses to
the extent related to the Project or furtherance of the Project's
development, construction, ownership or operation; provided, further,
that, notwithstanding the foregoing, the Borrower shall be permitted
to (i) make the Macau Loan and (ii) pay Allocable Overhead as
otherwise permitted under this Agreement.
"Permitted C-Corp. Conversion": a transaction resulting in
the Borrower, any other Loan Party or the Completion Guarantor
becoming a subchapter "C" corporation under the Code, so long as, in
connection with such transaction (a) the subchapter "C" corporation
resulting from such transaction is a corporation organized and
existing under the laws of any state of the United States or the
District of Columbia and the Beneficial Owners of the Capital Stock
of the subchapter "C" corporation shall be the same, and shall be in
the same percentages, as the Beneficial Owners of the Capital Stock
of the applicable entity immediately prior to such transaction, (b)
the subchapter "C" corporation resulting from such transaction
assumes in writing all of the obligations, if any, of the applicable
entity under the Loan Documents and all other material documents and
instruments to which such Person is a party, (c) to the extent the
Liens securing the Obligations on the Property of the applicable
entity immediately prior to such transaction do not survive with
respect to the subchapter "C" corporation resulting from such
transaction, such subchapter "C" corporation complies with the
requirements of Section 6.10 as if it and/or its Property, as the
case may be, was newly acquired on the date of the applicable
Permitted C-Corp. Conversion, (d) the Required Lenders are given not
less than 45 days' advance written notice of such transaction and
evidence reasonably satisfactory to the Required Lenders (including,
without limitation, title insurance and a reasonably satisfactory
opinion of counsel) regarding the maintenance of the perfection and
priority of Liens granted, or intended to be granted, in favor of the
Secured Parties in the Collateral following such transaction, (e)
such transaction would not cause or result in a Default or an Event
of Default; (f) such transaction does not result in the loss or
suspension or material impairment of any material Permit unless a
comparable Permit is effective prior to or simultaneously with such
loss, suspension or material impairment, (f) such transaction does
not require any Lender to obtain any license, permit, franchise or
other authorization from any Nevada Gaming Authority necessary on the
date of the Permitted C-Corp. Conversion or at any time thereafter to
own, lease, operate or otherwise conduct the gaming business of the
Borrower or any other Loan Party or be qualified or found suitable
under the laws of any applicable gaming jurisdiction and (g) the
Borrower shall have delivered to the Administrative Agent an opinion
of counsel of national repute in the United States reasonably
acceptable to the Administrative Agent confirming that neither the
Borrower nor any other Loan Party nor any of the Lenders will
recognize income, gain or loss for United States federal or state
income tax purposes as a result of such Permitted C-Corp. Conversion.
"Permitted Encumbrances": as defined in the Disbursement
Agreement.
"Permitted Liens": the collective reference to (a) in the
case of Collateral other than Pledged Stock, Liens permitted by
Section 7.3 (but only of the priority and to the extent of coverage
expressly set forth in Section 7.3 and the Security Agreement and
subject to the provisions of the Intercreditor Agreement) and (b) in
the case of Collateral consisting of Pledged Stock, non-consensual
Liens permitted by Section 7.3 to the extent arising by operation of
law and Liens permitted by Section 7.3(k).
"Permitted Refinancing Indebtedness": any Indebtedness of
any Loan Party issued in exchange for, or the net proceeds of which
are used to extend, refinance, renew, replace, defease or refund any
First Lien Secured Obligations or any Second Lien Secured
Obligations; provided, that (a) the principal amount (or accreted
value, if applicable) of such Permitted Refinancing Indebtedness does
not exceed the principal amount (or accreted value, if applicable) of
the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded (plus all accrued interest on such Indebtedness
and the amount of all expenses and premiums incurred in connection
therewith), (b) such Permitted Refinancing Indebtedness has a final
maturity date not earlier than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded, (c)
the restrictions on the Loan Parties contained in the agreements
governing such Permitted Refinancing Indebtedness are no more
restrictive, taken as a whole, than those contained in the agreements
governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded and, in any event, the differences
between the restrictions on the Loan Parties in the agreements
governing such Permitted Refinancing Indebtedness from those
contained in the agreements governing the Indebtedness being
extended, refinancing, renewed, replaced, defeased or refunded, taken
as a whole, could not reasonably be expected to be materially adverse
to the Loan Parties (taken as a whole) or the Lenders and (d) the
relevant holders of such Permitted Refinancing Indebtedness become
party to the Intercreditor Agreement. In the event Permitted
Refinancing Indebtedness is used to extend, refinance, renew,
replace, amend and restate, restate, defease or refund the 2014 Notes
all relevant definitions and provisions of the Loan Documents related
to the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded shall be amended, as necessary, to reflect such
Permitted Refinancing Indebtedness and related documentation and/or
arrangements by action of the Administrative Agent without the
consent of the Lenders.
"Permitted Securities": (a) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States
government or issued by any agency thereof and backed by the full
faith and credit of the United States, in each case maturing within
18 months from the date of acquisition, (b) shares of money market,
mutual or similar funds which invest exclusively in assets satisfying
the requirements of clause (a) of this definition or (c) shares of,
or an investment in, the JPMorgan Federal Money Market Fund.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"Phase I Completion Date": as defined in the Disbursement
Agreement.
"Phase I Final Completion Date": the Final Completion Date
with respect to the Phase I Project.
"Phase I Opening Date": as defined in the Disbursement
Agreement.
"Phase I Project": as defined in the Disbursement Agreement.
"Phase I Substantial Completion Date": as defined in the
Disbursement Agreement.
"Phase II Approval Date": as defined in the Disbursement
Agreement.
"Phase II Commitment Sunset Date": June 30, 2005.
"Phase II Completion Date": as defined in the Disbursement
Agreement.
"Phase II Final Completion Date": the Final Completion Date
with respect to the Phase II Project.
"Phase II Opening Date": as defined in the Disbursement
Agreement.
"Phase II Project": as defined in the Disbursement
Agreement.
"Plan": at a particular time, any employee benefit plan that
is subject to the requirements of Section 412 of the Code or that is
a Single Employer Plan and which the Borrower or any other Loan Party
or any Commonly Controlled Entity maintains, administers, contributes
to or is required to contribute to or under which the Borrower or any
other Loan Party or any Commonly Controlled Entity could incur any
liability.
"Plans and Specifications": as defined in the Disbursement
Agreement.
"Pledged Stock": as defined in the Security Agreement.
"Points of Diversion": with respect to any water permit held
by any Loan Party or otherwise utilized or expected to be utilized
with respect to the Project, the locations designated under such
water permit where a well can be located for the draw of water under
such water permit.
"Presumed Tax Liability": for any Person that is not a Pass
Through Entity for any period, an amount equal to the product of (a)
the Taxable Income allocated or attributable to such Person (directly
or through one or more tiers of Pass Through Entities) (net of
taxable losses allocated to such Person with respect to any Loan
Party that (i) are, or were previously, deductible by such Person and
(ii) have not previously reduced Taxable Income) and (b) the Presumed
Tax Rate.
"Presumed Tax Rate": with respect to any Person for any
period means the highest effective combined Federal, state and local
income tax rate applicable during such period to a corporation
organized under the laws of the State of Nevada, taxable at the
highest marginal Federal income tax rate and the highest marginal
Nevada and Las Vegas income tax rates (after giving effect to the
Federal income tax deduction for such state and local income taxes,
taking into account the effects of the alternative minimum tax, such
effects being calculated on the assumption that such Person's only
taxable income is the income allocated or attributable to such Person
for such period (directly or through one or more tiers of Pass
Through Entities) with respect to its equity interest in any of the
Loan Parties that is a Pass Through Entity.) In determining the
Presumed Tax Rate, the character of the items of income and gain
comprising Taxable Income (e.g. ordinary income or long term capital
gain) shall be taken into account.
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Prime Rate": shall mean the rate which Deutsche Bank Trust
Company Americas announces, from time to time, as its prime lending
rate, the Prime Rate to change when and as such prime lending rate
changes. The Prime Rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged by Deutsche Bank
Trust Company Americas to any customer of Deutsche Bank Trust Company
Americas. The Borrower acknowledges that Deutsche Bank Trust Company
Americas may, from time to time, make commercial loans or other loans
at rates of interest at, above or below the Prime Rate.
"Proceedings": as defined in Section 6.2(n).
"Project": (a) until the earlier of the Phase II Approval
Date or the Phase II Commitment Sunset Date, the Phase I Project, (b)
from and after the Phase II Commitment Sunset Date (if the Phase II
Approval Date has not by then occurred), collectively the Phase I
Project and all other Property of the Loan Parties and (c) from and
after the Phase II Approval Date, collectively the Phase I Project,
the Phase II Project and all other Property of the Loan Parties;
provided that for purposes of Section 2.24 only, the term "Project"
shall mean (i) for the period after the Phase I Substantial
Completion Date until the first to occur of the Phase II Commitment
Sunset Date (if the Phase II Approval Date has not by then occurred)
and the Phase II Completion Date, the Phase I Project and (ii) for
the period from and after the first to occur of the Phase II
Commitment Sunset Date (if the Phase II Approval Date has not by then
occurred) and the Phase II Completion Date, collectively the Phase I
Project and all other Property of the Loan Parties (including,
without limitation, the Phase II Project (if any)).
"Project Budget" as defined in the Disbursement Agreement.
"Project Costs": as defined in the Disbursement Agreement.
"Project Documents": collectively, each document or
agreement entered into on, prior to or after the Closing Date
(including Material Contracts and Additional Material Contracts)
relating to the design, engineering, development, construction,
installation, maintenance or operation of the Project (including any
Guarantee Obligations in furtherance thereof) but, in any case,
excluding Financing Agreements.
"Project Liquidity Reserve Account": as defined in the
Disbursement Agreement.
"Project Phase": the Phase I Project or the Phase II
Project, as the context may require.
"Project Services Agreement": the Amended and Restated
Project Administration Services Agreement, dated as of the date
hereof, between the Borrower and Wynn Design.
"Projections": as defined in Section 6.2(c).
"Property": any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible
or intangible, including, without limitation, Capital Stock.
"Quarterly Date": (a) with respect to the first Quarterly
Date, the earlier of (i) the last day of the first full fiscal
quarter of the Borrower beginning after the Phase I Opening Date and
(ii) December 31, 2005 and (b) with respect to each subsequent
Quarterly Date, the last day of the next succeeding fiscal quarter of
the Borrower.
"Real Estate": All real property held by the Loan Parties,
which the relevant Loan Party owns in fee or in which it holds a
leasehold interest as a tenant or in which it holds an easement right
as an easement holder or otherwise occupies, including, without
limitation, the real property more particularly identified in
Schedule 4.25(a) and includes, without limitation, the Site and the
Site Easements.
"Refinancing Transaction": collectively and in each case
occurring on the Closing Date, (a) the consummation of a tender offer
for the 2010 Notes, (b) the discharge of the 2010 Notes Indenture
pursuant to Article 12 of the 2010 Notes Indenture, (c) the payment
in full and termination of that certain Credit Agreement, dated as of
October 30, 2002, among the Borrower, Deutsche Bank Trust Company
Americas, as administrative agent, and the other banks and financial
institutions party thereto from time to time, (d) the payment in full
and termination of that certain Credit Agreement, dated as of May 3,
2004, among Bora Bora, LLC, Deutsche Bank Trust Company Americas, as
administrative agent, and the other banks and financial institutions
party thereto from time to time and (e) the payment in full and
termination of that certain Loan Agreement, dated as of October 30,
2002, among the Borrower, Wells Fargo Bank Nevada, National
Association, as collateral agent, and the other banks and financial
institutions party thereto from time to time.
"Refunded Swing Line Loans": as defined in Section 2.7(b).
"Refunding Date": as defined in Section 2.7(c).
"Register": as defined in Section 10.6(d).
"Regulation D": Regulation D of the Board as in effect from
time to time (and any successor to all or a portion thereof).
"Regulation H": Regulation H of the Board as in effect from
time to time (and any successor to all or a portion thereof).
"Regulation T": Regulation T of the Board as in effect from
time to time (and any successor to all or a portion thereof).
"Regulation U": Regulation U of the Board as in effect from
time to time (and any successor to all or a portion thereof).
"Regulation X": Regulation X of the Board as in effect from
time to time (and any successor to all or a portion thereof).
"Reimbursement Obligation": the obligation of the Borrower
to reimburse the Issuing Lender pursuant to Section 3.5 for amounts
drawn under Letters of Credit.
"Reinvested Amounts": as defined in Section 2.12(c).
"Reinvestment Deferred Amount": with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by the
Borrower or any other Loan Party in connection therewith that are not
applied to prepay the Term Loans or reduce the Revolving Credit
Commitments pursuant to Section 2.12(b) as a result of the delivery
of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale in respect of which the
Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a
Responsible Officer of the Borrower and, if applicable, a Responsible
Officer of any other Loan Party who made or is making the
corresponding Asset Sale and delivered to the Administrative Agent
within 30 days after such Asset Sale, stating that no Default or
Event of Default has occurred and is continuing and that the Borrower
(and, if applicable, such other Loan Party) intends and expects to
use all or a specified portion of the Net Cash Proceeds of such Asset
Sale to acquire assets useful in its Permitted Businesses.
"Reinvestment Prepayment Amount": with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto
less any amount expended prior to the relevant Reinvestment
Prepayment Date to acquire assets useful in the Borrower's or the
other applicable Loan Party's, as the case may be, Permitted
Businesses.
"Reinvestment Prepayment Date": with respect to any
Reinvestment Event, the earlier of (a) the date occurring 360 days
after such Reinvestment Event (or, if the related Asset Sale occurs
on or before the Phase I Opening Date, the date occurring 90 days
after such Reinvestment Event) and (b) the date on which the Borrower
or the applicable Loan Party shall have determined not to acquire
assets useful in its respective Permitted Business with all or any
portion of the relevant Reinvestment Deferred Amount.
"Related Party": either (a) any 80% (or more) owned
Subsidiary, heir, estate, lineal descendent or immediate family
member of Mr. Wynn; or (b) any trust, corporation, partnership or
other entity, the beneficiaries, equity holders, partners, owners or
Persons beneficially holding an 80% or more controlling interest of
which consist of Mr. Wynn and/or such other Persons referred to in
the immediately preceding clause (i).
"Release": any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge,
dispersal, dumping, leaching or migration of Hazardous Substances
into the indoor or outdoor environment (including the abandonment or
disposal of any barrels, containers or other closed receptacles
containing any Hazardous Substances), including the movement of any
Hazardous Substances through the air, soil, surface water or
groundwater.
"Relevant Fiscal Year": (i) if the Phase II Approval Date
has not occurred on or prior to the Phase II Commitment Sunset Date,
the 2005 Fiscal Year and (ii) if the Phase II Approval Date has
occurred on or prior to the Phase II Commitment Sunset Date, the
Fiscal Year in which the Phase II Opening Date occurs.
"Reorganization": with respect to any Multiemployer Plan,
the condition that such plan is in reorganization within the meaning
of Section 4241 of ERISA.
"Repair Plan": as defined in Section 2.24(a)(iv).
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under applicable regulations.
"Required Facility Lenders": with respect to any Facility
(a) at any time on or after the termination of the Term Loan
Commitments or the Revolving Credit Commitments, as the case may be,
Non-Defaulting Lenders holding more than 50% of the Total Term Loan
Extensions of Credit of Non-Defaulting Lenders or the Total Revolving
Extensions of Credit of Non-Defaulting Lenders, as the case may be,
or (b) at any time prior to any termination of the Term Loan
Commitments or the Revolving Credit Commitments, as the case may be,
Non-Defaulting Lenders holding more than 50% of the Total Term Loan
Commitments (less the aggregate Term Loan Commitments of Defaulting
Lenders) or Total Revolving Credit Commitments (less the aggregate
Revolving Credit Commitments of Defaulting Lenders), as the case may
be.
"Required Lenders": at any time, Non-Defaulting Lenders
holding more than 50% of the sum of (a) the Total Term Loan
Commitments (less the aggregate Term Loan Commitments of Defaulting
Lenders) then in effect or, if the Term Loan Commitments have been
terminated, the Total Term Loan Extensions of Credit of
Non-Defaulting Lenders then outstanding and (b) the Total Revolving
Credit Commitments (less the aggregate Revolving Credit Commitments
of Defaulting Lenders) then in effect or, if the Revolving Credit
Commitments have been terminated, the Total Revolving Extensions of
Credit of Non-Defaulting Lenders then outstanding.
"Requirement of Law": as to any Person, the Governing
Documents of such Person, and any law, treaty, order, rule or
regulation or determination of an arbitrator or a court or other
Governmental Authority, including, without limitation, Permits, in
each case applicable to or binding upon such Person or any of its
Property or to which such Person or any of its Property is subject.
"Responsible Officer": as to any Person, the chief executive
officer, president or chief financial officer of such Person, but in
any event, with respect to financial matters, the chief financial
officer of such Person. All references to a "Responsible Officer"
shall refer to a Responsible Officer of the Borrower or Wynn Resorts.
"Restricted Payments": as defined in Section 7.6.
"Retail Facility": an up to approximately 60,000 square foot
retail facility adjoining the Project on the Site (other than any
retail facility contemplated in the Plans and Specifications on the
Closing Date).
"Revolving Commitment Fee": as defined in Section 2.9(a).
"Revolving Commitment Fee Rate": in each case subject to the
proviso below, (a) during the period from and including the Closing
Date until the first Quarterly Date (or in the case of such proviso,
the first Adjustment Date occurring after the first Quarterly Date),
0.75% per annum and (b) during the period from and including the
first Quarterly Date until the first Adjustment Date occurring after
the Initial Phase II Calculation Date, 0.50% per annum; provided
that, notwithstanding clauses (a) and (b) above, on and after the
first Adjustment Date occurring after either the first Quarterly Date
(in the event that the Phase II Commitment Sunset Date occurs without
the Phase II Approval Date having occurred) or the Initial Phase II
Calculation Date (in the event that the Phase II Approval Date occurs
on or prior to the Phase II Commitment Sunset Date), the Revolving
Commitment Fee Rate will be determined pursuant to the Pricing Grid.
"Revolving Credit Commitment": as to any Lender, the
obligation of such Lender, if any, to make Revolving Credit Loans
and/or participate in Swing Line Loans and Letters of Credit, in an
aggregate principal and/or face amount not to exceed the amount set
forth under the heading "Revolving Credit Commitment" opposite such
Lender's name on Schedule 1 to the Lender Addendum delivered by such
Lender, or, as the case may be, in the Assignment and Acceptance
pursuant to which such Lender became a party hereto, as the same may
be changed from time to time pursuant to the terms hereof.
"Revolving Credit Commitment Period": the period from and
including the Closing Date to the Revolving Credit Termination Date.
"Revolving Credit Facility": the Revolving Credit
Commitments and the extensions of credit made thereunder.
"Revolving Credit Lender": each Lender that has a Revolving
Credit Commitment or that is the holder of Revolving Credit Loans.
"Revolving Credit Loans": as defined in Section 2.3.
"Revolving Credit Notes": as defined in Section 2.8(e).
"Revolving Credit Percentage": as to any Revolving Credit
Lender at any time, the percentage which such Lender's Revolving
Credit Commitment then constitutes of the Total Revolving Credit
Commitments (or, at any time after the Revolving Credit Commitments
shall have expired or terminated, the percentage which the aggregate
principal and/or face amount of such Lender's Revolving Extensions of
Credit then outstanding constitutes of the aggregate principal and/or
face amount of the Total Revolving Extensions of Credit then
outstanding).
"Revolving Credit Termination Date": the earlier of (a) the
Scheduled Revolving Credit Termination Date and (b) the date on which
the Loans become due and payable pursuant to Section 8.
"Revolving Extensions of Credit": as to any Revolving Credit
Lender at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Revolving Credit Loans made by such Lender
then outstanding, (b) such Lender's Revolving Credit Percentage of
the L/C Obligations then outstanding and (c) such Lender's Revolving
Credit Percentage of the aggregate principal amount of Swing Line
Loans then outstanding.
"S&P": Standard & Poor's Ratings Group, a New York
corporation, or any successor thereof.
"Scheduled Revolving Credit Termination Date": the fifth
anniversary of the Closing Date.
"Scheduled Term Loan Termination Date": the seventh
anniversary of the Closing Date.
"SEC": the Securities and Exchange Commission (or successors
thereto or an analogous Governmental Authority).
"Second Lien Secured Obligations": as defined in the
Intercreditor Agreement.
"Second Lien Security Document": as defined in the
Intercreditor Agreement.
"Secured Parties": collectively, the Arrangers, the Agents,
the Managers, the Lenders and, with respect to any Specified Hedge
Agreement, any affiliate of any Lender party thereto (or any Person
that was a Lender or an affiliate thereof when such Specified Hedge
Agreement was entered into) that has agreed to be bound by the
provisions of Section 6.2 of the Security Agreement as if it were a
party thereto, and by the provisions of Section 9 hereof as if it
were a Lender party hereto.
"Securities Intermediary": as defined in the Disbursement
Agreement.
"Security Agreement": the Pledge and Security Agreement
substantially in the form of Exhibit P hereto, dated as of the date
hereof, among each Loan Party, Wynn Resorts Holdings and the
Collateral Agent.
"Security Documents": the collective reference to the
Guarantee, the Security Agreement, the Intellectual Property Security
Agreements, the Control Agreements, the Mortgages, the Consents, the
Collateral Agency Agreement and all other pledge and security
documents hereafter delivered to the Collateral Agent or the
Administrative Agent granting a Lien on any Property (or associated
with such a grant) of any Person to secure the obligations and
liabilities of any Loan Party, Wynn Resorts Holdings or the
Completion Guarantor under any Loan Document.
"Senior Permitted Liens": Permitted Liens that are expressly
permitted by the terms of the Loan Documents to be superior in
priority to the Liens of the Security Documents.
"Show Performers": Wynn Show Performers, LLC, a Nevada
limited liability company.
"Shuttle Easement Agreement": the Easement Agreement, dated
as of the date hereof between Wynn Golf and the Borrower.
"Single Employer Plan": any Plan that is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Site": all or any portion of the Real Estate. The Site
includes, without limitation, the Wynn Home Site Land (until such
time (if ever) as such Property has been Disposed of in accordance
with Section 7.5(j)), the Golf Course Land (until such time (if ever)
as such Property has been Disposed of in accordance with Section
7.5(k) or released pursuant to Section 10.22 or distributed pursuant
to Section 7.6), the Home Site Land (until such time (if ever) as
such Property has been Disposed of in accordance with Section 7.5(l))
and any other Property which is subject to a Lien under any Mortgage
(in each such case, until such Property is Disposed of and released
from the Lien of the Security Documents in accordance with this
Agreement.)
"Site Easements": the easements appurtenant, easements in
gross, license agreements and other rights running for the benefit of
the Borrower or any other Loan Party and/or appurtenant to the Site,
including, without limitation, those certain easements and licenses
described in the Title Policies.
"Solvent": when used with respect to any Person, as of any
date of determination, (a) the amount of the "present fair saleable
value" of the assets of such Person will, as of such date, exceed the
amount of all "liabilities of such Person, contingent or otherwise",
as of such date, as such quoted terms are determined in accordance
with applicable federal and state laws governing determinations of
the insolvency of debtors, (b) the present fair saleable value of the
assets of such Person will, as of such date, be greater than the
amount that will be required to pay the liability of such Person on
its debts as such debts become absolute and matured, (c) such Person
will not have, as of such date, an unreasonably small amount of
capital with which to conduct its business and (d) such Person will
be able to pay its debts as they mature. For purposes of this
definition, (i) "debt" means liability on a "claim" and (ii) "claim"
means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured
or unsecured or (y) right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment, whether
or not such right to an equitable remedy is reduced to judgment,
fixed, contingent, matured or unmatured, disputed, undisputed,
secured or unsecured.
"Specified Hedge Agreement": any Hedge Agreement (a) entered
into by (i) the Borrower and (ii) any Lender or any affiliate
thereof, or any Person that was a Lender or an affiliate thereof when
such Hedge Agreement was entered into as counterparty and (b) which
has been designated by such Lender and the Borrower, by notice to the
Administrative Agent not later than 90 days after the execution and
delivery thereof by the Borrower, as a Specified Hedge Agreement;
provided, that the designation of any Hedge Agreement as a Specified
Hedge Agreement shall not create in favor of any Lender or affiliate
thereof that is a party thereto any rights in connection with the
management or release of any Collateral or of the obligations of any
Guarantor under the Guarantee.
"Stockholders Agreement": that certain Stockholders
Agreement, dated as of April 11, 2002, by and among Mr. Wynn, Baron
Asset Fund and Aruze USA, as in effect on the Closing Date.
"Stop Funding Notice": as defined in the Disbursement
Agreement.
"Subordinated Debt": Indebtedness of any Loan Party that (a)
does not have any scheduled principal payment, mandatory principal
prepayment, sinking fund payment or similar payment due prior to the
Scheduled Term Loan Termination Date, (b) is not secured by any Lien
on any Property, (c) is subordinated on terms and conditions
reasonably satisfactory to the Majority Initial Lending Institutions
and (d) is subject to such covenants and events of default as may be
reasonably acceptable to the Majority Initial Lending Institutions.
"Subordinated Intercompany Note": the Subordinated
Intercompany Note to be executed and delivered by the Borrower and
each of the other Loan Parties, substantially in the form of Exhibit
L hereto.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or
other ownership interests having ordinary voting power (other than
stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the
directors, managers or trustees of such corporation, partnership,
limited liability company or other entity are at the time owned, or
the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a "Subsidiary"
or to "Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower.
"Substitute Lender": as defined in Section 10.13(a).
"Swing Line Commitment": the obligation of the Swing Line
Lender to make Swing Line Loans pursuant to Section 2.6 in an
aggregate principal amount at any one time outstanding not to exceed
$10,000,000.
"Swing Line Credit Commitment Period": the period from and
including the Phase I Opening Date to the Revolving Credit
Termination Date.
"Swing Line Lender": Deutsche Bank Trust Company Americas,
in its capacity as the lender of Swing Line Loans.
"Swing Line Loans": as defined in Section 2.6.
"Swing Line Notes": as defined in Section 2.8(e).
"Swing Line Participation Amount": as defined in Section
2.7(c).
"Syndication Agent": Bank of America, N.A., in its capacity
as syndication agent.
"Synthetic Lease Obligations": all monetary obligations of a
Person under (a) a so-called synthetic, off-balance sheet or tax
retention lease, or (b) an agreement for the use or possession of
property creating obligations which do not appear on the balance
sheet of such Person but which, upon the insolvency or bankruptcy of
such Person, would be characterized as the Indebtedness of such
Person (without regard to accounting treatment). The amount of
Synthetic Lease Obligations in respect of any synthetic lease at any
date of determination thereof shall be equal to the aggregate
purchase price of any property subject to such lease less the
aggregate amount of payments of rent theretofore made which reduce
the lessee's obligations under such synthetic lease and which are not
the financial equivalent of interest.
"Taking": a taking or voluntary conveyance during the term
of this Agreement of all or part of any Mortgaged Property, or any
interest therein or right accruing thereto or use thereof, as the
result of, or in settlement of, any condemnation or other eminent
domain proceeding by any Governmental Authority affecting a Mortgaged
Property or any portion thereof, whether or not the same shall have
actually been commenced.
"Tax Amount": with respect to any period, (a) in the case of
any direct or indirect member of a Loan Party that is a Pass Through
Entity, the Presumed Tax Liability of such direct or indirect member
and (b) with respect to any of the Loan Parties that are Consolidated
Members, the aggregate federal income tax liability such Loan Parties
would owe for such period if each was a corporation filing federal
income tax returns on a stand alone basis at all times during its
existence and, if any of the Consolidated Members files a
consolidated or combined state income tax return such that it is not
paying its own state income taxes, then Tax Amount shall also include
the aggregate state income tax liability such Consolidated Members
would have paid for such period if each was a corporation filing
state income tax returns on a stand alone basis at all times during
its existence.
"Taxable Income": with respect to any Person for any period,
the taxable income or loss of such Person for such period for federal
income tax purposes as a result of such Person's equity ownership of
one or more Loan Parties that are Pass Through Entities for such
period; provided, however, that all items of income, gain, loss or
deduction required to be stated separately pursuant to Section
703(a)(1) of the Code shall be included in taxable income or loss.
"Term Loan Commitment": as to any Term Loan Lender, the
obligation of such Lender, if any, to make a Term Loan to the
Borrower hereunder in a principal amount not to exceed the amount set
forth under the heading "Term Loan Commitment" opposite such Lender's
name on Schedule 1 to the Lender Addendum delivered by such Lender,
or, as the case may be, in the Assignment and Acceptance pursuant to
which such Lender became a party hereto, as the same may be changed
from time to time pursuant to the terms hereof.
"Term Loan Commitment Fee Rate": 1.00% per annum.
"Term Loan Commitment Period": the period from and including
the Closing Date to the Term Loan Commitment Termination Date.
"Term Loan Commitment Termination Date": March 14, 2005.
"Term Loan Extensions of Credit": as to any Term Loan Lender
at any time, the aggregate principal amount of all Term Loans made by
such Lender then outstanding.
"Term Loan Facility": the Term Loan Commitments and the Term
Loans made thereunder.
"Term Loan Lender": each Lender that has a Term Loan
Commitment or is the holder of a Term Loan.
"Term Loan Percentage": as to any Term Loan Lender at any
time, the percentage which such Lender's Term Loan Commitment then
constitutes of the aggregate Term Loan Commitments (or, at any time
after the Term Loan Commitments shall have expired or terminated, the
percentage which the aggregate principal amount of such Lender's Term
Loans then outstanding constitutes of the aggregate principal amount
of all Term Loans then outstanding).
"Term Loan Termination Date": the earlier of (a) the
Scheduled Term Loan Termination Date and (b) the date on which the
Loans become due and payable pursuant to Section 8.
"Term Loans": as defined in Section 2.1(a).
"Term Notes": as defined in Section 2.8(e).
"Title Insurance Company": collectively, Commonwealth Land
Title Company and such other title insurance companies that have
issued Title Policies to the Collateral Agent on behalf of the
Lenders in connection with or related to any Mortgage.
"Title Policies": collectively, the policies of title
insurance issued by the Title Insurance Company with respect to the
Mortgages.
"Total Extensions of Credit": at any time, the sum of (a)
the Total Revolving Extensions of Credit and (b) the Total Term Loan
Extensions of Credit.
"Total Initial Lending Institution Revolving Credit
Commitments": at any time, the aggregate amount of the Revolving
Credit Commitments then in effect and held by the Initial Lending
Institutions or their Affiliates.
"Total Initial Lending Institution Revolving Extensions of
Credit": at any time, the aggregate amount of the Revolving
Extensions of Credit of the Revolving Credit Lenders outstanding at
such time and held by the Initial Lending Institutions or their
Affiliates.
"Total Initial Lending Institution Term Loan Commitments":
at any time, the aggregate amount of the Term Loan Commitments then
in effect and held by the Initial Lending Institutions or their
Affiliates.
"Total Initial Lending Institution Term Loan Extensions of
Credit": at any time, the aggregate amount of the Term Loan
Extensions of Credit of the Term Loan Lenders outstanding at such
time and held by the Initial Lending Institutions or their
Affiliates.
"Total Revolving Credit Commitments": at any time, the
aggregate amount of the Revolving Credit Commitments then in effect;
provided, that the amount of the Total Revolving Credit Commitments
on the Closing Date shall be $600,000,000.
"Total Revolving Extensions of Credit": at any time, the
aggregate amount of the Revolving Extensions of Credit of the
Revolving Credit Lenders outstanding at such time.
"Total Term Loan Commitments": at any time, the aggregate
amount of the Term Loan Commitments then in effect; provided, that
the amount of the Total Term Loan Commitments on the Closing Date
shall be $400,000,000.
"Total Term Loan Extensions of Credit": at any time, the
aggregate amount of the Term Loan Extensions of Credit of the Term
Loan Lenders outstanding at such time.
"Transferee": as defined in Section 10.15.
"Type": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar Loan.
"UCC": the Uniform Commercial Code (or any similar or
equivalent legislation), as in effect from time to time in any
applicable jurisdiction.
"Voting Stock": with respect to any Person as of any date,
the Capital Stock of such Person that is at the time entitled to vote
in the election of the Board of Directors of such Person.
"Water Show Entertainment and Production Agreement":
collectively, (a) that certain Production Services Agreement, dated
as of October 31, 2002, between the Borrower and Productions du
Dragon, S.A. ("Dragon") and (b) that certain License Agreement, dated
as of October 31, 2002, between the Borrower and Calitri Services and
Licensing Limited Liability Company ("Calitri").
"Weighted Average Life to Maturity": when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(a) the sum of the products obtained by
multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other
required payments of principal, including payment
at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest
one--twelfth) that will elapse between such date
and the making of such payment; by
(b) the then outstanding principal amount
of such Indebtedness.
"Wholly Owned Subsidiary": as to any Person, any other
Person all of the Capital Stock of which (other than directors'
qualifying shares required by law) is owned by such Person directly
and/or through other Wholly Owned Subsidiaries.
"Withdrawal Period": as defined in Section 10.13(b).
"World Travel": World Travel, LLC, a Nevada limited
liability company.
"Wynn Asia": Wynn Group Asia, Inc., a Nevada corporation.
"Wynn Design": Wynn Design & Development, LLC, a Nevada
limited liability company.
"Wynn Golf": Wynn Golf, LLC, a Nevada limited liability
company.
"Wynn Golf Indemnity Agreement": the Indemnity Agreement,
dated as of the date hereof, by Wynn Golf in favor of the
Administrative Agent.
"Wynn Golf Mortgage": the Deed of Trust, Assignment of Rents
and Leases, Security Agreement and Fixture Filing, dated as of the
date hereof, made by Wynn Golf to the Title Insurance Company for the
benefit of the Collateral Agent.
"Wynn Home Site Land": an approximately two-acre tract of
land located on the Golf Course Land where Mr. Wynn's personal
residence may be built, after Disposition of the Wynn Home Site Land
in accordance with Section 7.5(j).
"Wynn IP Agreement": the Intellectual Property License
Agreement, dated as of the date hereof, among Wynn Resorts Holdings,
Wynn Resorts and the Borrower.
"Wynn Macau": Wynn Resorts (Macau), S.A., a company
organized under the laws of Macau.
"Wynn Resorts": Wynn Resorts, Limited, a Nevada corporation.
"Wynn Resorts Holdings": Wynn Resorts Holdings, LLC, a
Nevada limited liability company.
"Wynn Sunrise": Wynn Sunrise, LLC, a Nevada limited
liability company.
"Wynn Sunrise Indemnity Agreement": the Indemnity Agreement,
dated as of the date hereof, by Wynn Sunrise in favor of the
Administrative Agent.
"Wynn Sunrise Mortgage": the Deed of Trust, Assignment of
Rents and Leases, Security Agreement and Fixture Filing, dated as of
the date hereof, made by Wynn Sunrise to the Title Insurance Company
for the benefit of the Collateral Agent.
"2010 Notes": the 12% Mortgage Notes due 2010 issued by the
Borrower and Capital Corp. pursuant to the 2010 Notes Indenture.
"2010 Notes Indenture": that certain Indenture, dated as of
October 30, 2002, among the Borrower, Capital Corp., certain
guarantors named therein and the 2010 Notes Indenture Trustee, as
supplemented by that certain First Supplemental Indenture, dated as
of the date hereof.
"2010 Notes Indenture Trustee": Wells Fargo Bank, National
Association in its capacity as the trustee under the 2010 Notes
Indenture and its successors in such capacity.
"2010 Notes Satisfaction Proceeds": all cash and securities
(and any account or trust arrangement in which such cash and
securities are held) delivered to the 2010 Notes Indenture Trustee in
accordance with Section 12.01 of the 2010 Notes Indenture on the
Closing Date.
"2014 Noteholders": the holders of the 2014 Notes from time
to time.
"2014 Notes": the 6 5/8% Mortgage Notes due 2014 issued by
the Borrower and Capital Corp. pursuant to the 2014 Notes Indenture
and any exchange notes related thereto as contemplated by the 2014
Notes Indenture.
"2014 Notes Debt Service": for any period, (a) all fees
payable during such period to the 2014 Notes Indenture Trustee and
the 2014 Noteholders under the 2014 Notes Indenture and related
agreements, documents and instruments and (b) interest on the 2014
Notes payable during such period.
"2014 Notes Indenture": that certain Indenture, dated as of
the date hereof, between the Borrower, Capital Corp., certain
guarantors named therein and the 2014 Notes Indenture Trustee.
"2014 Notes Indenture Trustee": U.S. Bank National
Association in its capacity as the trustee under the 2014 Notes
Indenture and its successors in such capacity.
"2014 Notes Proceeds Account": as defined in the
Disbursement Agreement.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the other Loan Documents or any certificate or other
document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Borrower and the other Loan Parties not
defined in Section 1.1 and accounting terms partly defined in Section 1.1, to
the extent not defined, shall have the respective meanings given to them under
GAAP.
(c) The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(e) The expressions "payment in full," "paid in full" and
any other similar terms or phrases when used herein with respect to the
Obligations shall mean the payment in full, in immediately available funds, of
all of the Obligations.
(f) The words "including" and "includes" and words of
similar import when used in this Agreement shall not be limiting and shall
mean "including without limitation" or "includes without limitation", as the
case may be.
(g) The words "will" and "shall" and words of similar import
when used in this Agreement shall mean a command.
(h) Upon termination of the Disbursement Agreement, any
defined terms used herein having meanings given to such terms in the
Disbursement Agreement shall continue to have the meanings given to such terms
in the Disbursement Agreement immediately prior to such termination.
(i) Unless expressly described to the contrary, references
to any document, instrument or agreement (i) shall include all exhibits,
schedules and other attachments thereto, (ii) shall include all documents,
instruments or agreements issued or executed in replacement thereof and (iii)
shall mean such document, instrument or agreement, or replacement or
predecessor thereto, as amended, restated, modified and supplemented from time
to time and in effect at the time of determination.
1.3 Certain Financial Calculations. (a) (a) For purposes of
Section 7.1(a) only, during the period, if any, between the Phase II Approval
Date and the Initial Phase II Calculation Date, Consolidated Total Debt, as
used in the calculation of the Consolidated Leverage Ratio pursuant thereto,
shall equal the Consolidated Total Debt as of the applicable Quarterly Date
less the aggregate amount of all Project Costs for the Phase II Project
expended on or prior to such Quarterly Date pursuant to the Disbursement
Agreement other than any such Project Costs paid with the proceeds of any
capital contributions from Wynn Resorts or its Affiliates. Any proceeds of the
2014 Notes applied on the Closing Date in order to consummate the Refinancing
Transaction shall not be deemed to be Project Costs with respect to the Phase
II Project.
(b) For purposes of calculating the Consolidated Leverage
Ratio for any four full fiscal quarter period ending on any of the first three
Quarterly Dates, the Consolidated EBITDA of the Borrower, as used in such
calculation of the Consolidated Leverage Ratio, shall be calculated on an
annualized basis.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Loan Commitments.(a) Subject to the terms and
conditions hereof, and in reliance upon the representations and warranties of
the Borrower herein set forth and, while in effect, the representations and
warranties set forth in the Disbursement Agreement, each Term Loan Lender
severally agrees to make term loans ("Term Loans") to the Borrower from time
to time during the Term Loan Commitment Period in an aggregate principal
amount not to exceed the amount of the Term Loan Commitment of such Lender.
The Term Loans may from time to time be Eurodollar Loans or Base Rate Loans,
as determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.5 and 2.13. Term Loans borrowed and subsequently
repaid or prepaid may not be reborrowed. Upon the earlier of the Term Loan
Commitment Termination Date and the date that all Term Loans have been
borrowed by the Borrower in accordance with this Agreement, the Term Loan
Commitments shall be deemed terminated.
(b) The Borrower shall borrow (i) no less than $200,000,000
in principal amount of Term Loans on or before February 14, 2005 and (ii) all
Term Loans on or before the Term Loan Commitment Termination Date.
2.2 Scheduled Amortization of Term Loans. The Borrower shall
make principal payments on the Term Loans on amortization dates in the amounts
set forth below opposite the applicable amortization date:
=============================================================
Amortization Date Scheduled
Repayment
of Term Loans
=============================================================
December 31, 2010 $200,000,000
-------------------------------------------------------------
Scheduled Term Loan Termination Date $200,000,000
-------------------------------------------------------------
provided, that the scheduled installments of principal of the Term Loans set
forth above shall be reduced in connection with any voluntary or mandatory
prepayments of the Term Loans in accordance with Sections 2.11, 2.12 and 2.18;
and provided, further that the Term Loans and all other amounts owed hereunder
with respect to the Term Loans shall be paid in full no later than the Term
Loan Termination Date, and the final installment payable by the Borrower in
respect of the Term Loans on such date shall be in an amount sufficient to
repay all amounts owing by the Borrower under this Agreement with respect to
the Term Loans.
2.3 Revolving Credit Commitments. Subject to the terms and
conditions hereof, and in reliance upon the representations and warranties of
the Borrower herein set forth and, while in effect, the representations and
warranties set forth in the Disbursement Agreement, each Revolving Credit
Lender severally agrees to make revolving credit loans ("Revolving Credit
Loans") to the Borrower from time to time during the Revolving Credit
Commitment Period in an aggregate principal amount at any one time outstanding
which, when added to such Lender's Revolving Credit Percentage of the sum of
(a) the L/C Obligations then outstanding and (b) the aggregate principal
amount of the Swing Line Loans then outstanding, does not exceed the amount of
such Lender's Revolving Credit Commitment. During the Revolving Credit
Commitment Period the Borrower may use the Revolving Credit Commitments by
borrowing, prepaying the Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. The
Revolving Credit Loans may from time to time be Eurodollar Loans or Base Rate
Loans, as determined by the Borrower and notified to the Administrative Agent
in accordance with Sections 2.5 and 2.13, provided that no Revolving Credit
Loan shall be made as a Eurodollar Loan after the day that is one month prior
to the Scheduled Revolving Credit Termination Date. Notwithstanding the
foregoing but excluding Revolving Credit Loans deemed requested pursuant to
Section 3.5 (which shall be permitted to be requested at any time in
accordance with Section 3.5), the Borrower shall not be permitted to borrow
Revolving Credit Loans until it has borrowed all Term Loans.
2.4 Term Loan Call Protection. All optional prepayments of
Term Loans effected on or prior to the first anniversary of the Closing Date
with the proceeds of a substantially concurrent issuance or incurrence of
secured Indebtedness under any credit facility (including any replacement or
incremental term loan facility effected pursuant to an amendment or
restatement of this Agreement) will be accompanied by the payment of a
prepayment fee equal to 1.00% of the aggregate principal amount of the Term
Loans so optionally prepaid if the interest rate spread (or margin) applicable
to such Indebtedness is, or upon satisfaction of certain express conditions
could reasonably be, less than the Applicable Margin then applicable to the
Term Loans.
2.5 Procedure for Borrowing. (a) Prior to the Final
Completion Date with respect to a Project Phase, the Borrower shall have the
right to borrow Loans, the proceeds of which are to be used to pay such
Project Phase's Project Costs. If the Borrower desires that Lenders make such
Loans, the Borrower shall comply with Section 2.3 of the Disbursement
Agreement. Notwithstanding any provisions of the Disbursement Agreement to the
contrary, each Notice of Advance Request and related Advance Confirmation
Notice from the Disbursement Agent in accordance with the provisions of
Section 2.3 of the Disbursement Agreement must be received by the
Administrative Agent prior to 12:00 Noon, New York City time, at least (i)
three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, or (ii) one Business Day prior to the requested Borrowing
Date, in the case of Base Rate Loans and must specify (x) the amount and Type
of Loans to be borrowed, (y) the requested Borrowing Date and (z) in the case
of Eurodollar Loans, the length of the initial Interest Period therefor. Upon
receipt of any Advance Confirmation Notice from the Disbursement Agent, the
Administrative Agent shall promptly notify each Term Loan Lender and/or
Revolving Credit Lender, as appropriate, thereof. Each such Lender will make
the amount of its pro rata share of each borrowing available to the
Administrative Agent at the Funding Office prior to 10:00 A.M., New York City
time, on the Borrowing Date requested by the Borrower in immediately available
Dollars. Such borrowing will then, upon satisfaction or waiver of the
conditions precedent specified in Section 5.2, be deposited by the
Administrative Agent, in immediately available Dollars, into the Disbursement
Account no later than 12:00 Noon, New York City time, on the applicable
Borrowing Date. The Disbursement Agent shall then make the proceeds of such
Loans available to the Borrower in accordance with and upon fulfillment of the
relevant conditions set forth in the Disbursement Agreement.
(b) On or after the Phase I Opening Date, the Borrower shall
have the right to borrow Loans, the proceeds of which are to be used for
purposes permitted hereby other than the payment of Project Costs. In
addition, the Borrower shall have the right to borrow Loans, the proceeds of
which are to be used solely to finance the Macau Loan, at any time. If the
Borrower desires that Lenders make Loans described in this Section 2.5(b), the
Borrower shall give the Administrative Agent irrevocable notice in a Notice of
Borrowing (which Notice of Borrowing must be received by the Administrative
Agent prior to 12:00 Noon, New York City time, at least (A) three Business
Days prior to the requested Borrowing Date, in the case of Eurodollar Loans,
or (B) one Business Day prior to the requested Borrowing Date, in the case of
Base Rate Loans), specifying (x) the amount and Type of Loans to be borrowed,
(y) the requested Borrowing Date and (z) in the case of Eurodollar Loans, the
length of the initial Interest Period therefor. Upon receipt of any such
Notice of Borrowing from the Borrower, the Administrative Agent shall promptly
notify each Term Loan Lender and/or Revolving Credit Lender thereof. Each such
Lender will make the amount of its pro rata share of each borrowing available
to the Administrative Agent for the account of the Borrower at the Funding
Office prior to 12:00 Noon, New York City time, on the Borrowing Date
requested by the Borrower in immediately available Dollars. Such borrowing
will then, upon satisfaction or waiver of the conditions precedent specified
in Section 5.3, be made available to the Borrower by the Administrative Agent
depositing into (which may take the form of crediting) a Funding Account of
the Borrower (as directed by the Borrower) with the aggregate of the amounts
made available to the Administrative Agent by the Lenders in immediately
available Dollars.
(c) Notwithstanding subsections (a) or (b) above, (i) if the
aggregate Term Loans advanced by the Term Loan Lenders through February 14,
2005 is less than $200,000,000, on February 14, 2005 the Borrower shall borrow
Term Loans in an amount no less than such shortfall and (ii) if the aggregate
Term Loans advanced by the Term Loan Lenders through the Term Loan Commitment
Termination Date is less than the Total Term Loan Commitments, on the Term
Loan Commitment Termination Date the Borrower shall borrow Term Loans in an
amount equal to the then Available Term Loan Commitments of all Term Loan
Lenders. In the event the Borrower is required to borrow Term Loans pursuant
to this subsection (c), the Borrower shall give the Administrative Agent
irrevocable notice in a Notice of Borrowing, the Administrative Agent shall
promptly notify each Term Loan Lender thereof and each Term Loan Lender will
make the amount of its pro rata share of each borrowing available to the
Administrative Agent for the account of the Borrower, in each case at such
time, in such form and otherwise as required pursuant to subsection (b) above.
Such borrowing will then, upon satisfaction or waiver of the conditions
precedent specified in Section 5.3, be deposited by the Administrative Agent,
in immediately available Dollars, in the Bank Proceeds Account no later than
2:00 P.M., New York City time, on the applicable Borrowing Date. The
Disbursement Agent shall then make the proceeds of such Loans available to the
Borrower in accordance with and upon fulfillment of the relevant conditions
set forth in the Disbursement Agreement.
(d) Each borrowing under the Term Loan Commitments or the
Revolving Credit Commitments shall be in an amount equal to (x) in the case of
Base Rate Loans other than Base Rate Loans that are borrowed pursuant to
Section 2.5(c), $5,000,000 or a whole multiple in excess thereof (or, if the
then aggregate Available Term Loan Commitments or Available Revolving Credit
Commitments, as applicable, are less than $5,000,000 or a whole multiple in
excess thereof, such lesser amount) and (y) in the case of Eurodollar Loans,
$10,000,000 or a $1,000,000 whole multiple in excess thereof; provided, that
the Swing Line Lender may request, on behalf of the Borrower, borrowings under
the Revolving Credit Commitments which are Base Rate Loans in other amounts
pursuant to Section 2.7. In the event the Borrower is unable to borrow an
amount of Loans requested in any Notice of Advance Request and related Advance
Confirmation Notice pursuant to subsection (a) above due to the limitations of
this subsection, such request for Loans shall be deemed to be in an amount
equal to the next higher minimum amount of Loans (of the same Type as those
originally requested) otherwise permitted to be drawn under this subsection.
(e) In the event that the proceeds of any Loans deposited
into the Disbursement Account or the Bank Proceeds Account pursuant to
subsections (a) or (c) above are not disbursed by the Disbursement Agent on
the applicable Borrowing Date, the proceeds of such Loans shall be held by the
Disbursement Agent in accordance with the provisions set forth in the
Disbursement Agreement; provided, however, that the proceeds of such Loans
shall continue to bear interest and be repayable in accordance with the
provisions set forth in this Agreement. In the event that the Administrative
Agent receives a Stop Funding Notice from the Disbursement Agent in accordance
with and pursuant to the terms of the Disbursement Agreement, none of the
Administrative Agent and the Lenders shall, or shall have any obligation to,
advance the Loans associated with such Stop Funding Notice; provided, however,
that the Borrower shall be obligated to make any payments due pursuant to
Section 2.21 as a result thereof. The Administrative Agent shall notify each
relevant Lender promptly upon receipt of any Stop Funding Notice, but shall
bear no liability to any Lender if, despite the receipt of such Stop Funding
Notice, any Lender makes available any money to the Administrative Agent in
respect of the requested Loans. In such event, the Administrative Agent shall
refund the amount received by it as promptly as possible and in any event by
the following Business Day.
2.6 Swing Line Commitment. Subject to the terms and
conditions hereof, the Swing Line Lender agrees to make available to the
Borrower a portion of the credit otherwise available to the Borrower under the
Revolving Credit Commitments from time to time during the Swing Line Credit
Commitment Period by making swing line loans ("Swing Line Loans") to the
Borrower; provided, that (a) the aggregate principal amount of Swing Line
Loans outstanding at any time shall not exceed the Swing Line Commitment then
in effect (notwithstanding that the Swing Line Loans outstanding at any time,
when aggregated with the Swing Line Lender's other outstanding Revolving
Credit Loans hereunder, may exceed the Swing Line Commitment then in effect)
and (b) the Borrower shall not request, and the Swing Line Lender shall not
make, any Swing Line Loan if, after giving effect to the making of such Swing
Line Loan, the aggregate amount of the Available Revolving Credit Commitments
would be less than zero. During the Swing Line Credit Commitment Period, the
Borrower may use the Swing Line Commitment by borrowing, repaying and
reborrowing, all in accordance with the terms and conditions hereof. Swing
Line Loans shall be Base Rate Loans only. The Borrower may at any time and
from time to time prepay all or any portion of the outstanding Swing Line
Loans in accordance with Section 2.11.
2.7 Procedure for Swing Line Borrowing; Refunding of Swing
Line Loans. (a) Whenever the Borrower desires that the Swing Line Lender make
Swing Line Loans (the proceeds of which shall be used for purposes permitted
hereby other than the payment of Project Costs or an Investment in the Macau
Loan), it shall give the Swing Line Lender irrevocable telephonic notice
confirmed promptly in writing (which telephonic notice must be received by the
Swing Line Lender not later than 1:00 P.M., New York City time, on the
proposed Borrowing Date), specifying (i) the amount to be borrowed and (ii)
the requested Borrowing Date. Each borrowing under the Swing Line Commitment
shall be in an amount equal to $500,000 or a $100,000 multiple in excess
thereof. Not later than 3:00 P.M., New York City time, on the Borrowing Date
specified in a notice in respect of Swing Line Loans, the Swing Line Lender
shall make available to the Administrative Agent at the Funding Office an
amount in immediately available funds equal to the amount of the Swing Line
Loan to be made by the Swing Line Lender; provided, that the Swing Line Lender
shall not be obligated to make any Swing Line Loans at a time when a Lender
Default exists unless the Swing Line Lender has entered into arrangements
satisfactory to it to eliminate the Swing Line Lender's risk with respect to
the Defaulting Lender's or Lenders' participation in such Swing Line Loans.
The Administrative Agent shall make the proceeds of such Swing Line Loan
available in immediately available Dollars to the Borrower on such Borrowing
Date by depositing such proceeds in a Funding Account of the Borrower with the
Administrative Agent on such Borrowing Date.
(b) The Swing Line Lender, at any time and from time to time
in its sole and absolute discretion may, on behalf of the Borrower (which
hereby irrevocably directs the Swing Line Lender to act on its behalf), on one
Business Day's notice given by the Swing Line Lender no later than 12:00 Noon,
New York City time, request each Revolving Credit Lender to make, and each
Revolving Credit Lender hereby agrees to make, a Revolving Credit Loan, in an
amount equal to such Revolving Credit Lender's Revolving Credit Percentage of
the aggregate amount of the Swing Line Loans (the "Refunded Swing Line Loans")
outstanding on the date of such notice, to repay the Swing Line Lender. The
Swing Line Lender shall notify the Borrower of any such request as soon as is
reasonably practicable. Each Revolving Credit Lender shall make the amount of
such Revolving Credit Loan available to the Administrative Agent at the
Funding Office in immediately available funds, not later than 10:00 A.M., New
York City time, one Business Day after the date of such notice. The proceeds
of such Revolving Credit Loans shall be immediately made available by the
Administrative Agent to the Swing Line Lender for application by the Swing
Line Lender to the repayment of the Refunded Swing Line Loans. The Borrower
irrevocably authorizes the Swing Line Lender to charge the Borrower's accounts
with the Administrative Agent (up to the amount available in each such
account) in order to immediately pay the amount of such Refunded Swing Line
Loans to the extent amounts received from the Revolving Credit Lenders are not
sufficient to repay in full such Refunded Swing Line Loans, and the
Administrative Agent shall provide the Borrower notice of any such action.
(c) If prior to the time a Revolving Credit Loan would have
otherwise been made pursuant to Section 2.7(b), one of the events described in
Section 8(f) shall have occurred and be continuing with respect to the
Borrower or if for any other reason, as determined by the Swing Line Lender in
its sole discretion, Revolving Credit Loans may not be made as contemplated by
Section 2.7(b), each Revolving Credit Lender shall, on the date such Revolving
Credit Loan was to have been made pursuant to the notice referred to in
Section 2.7(b) (the "Refunding Date"), purchase for cash an undivided
participating interest in the then outstanding Swing Line Loans by paying to
the Swing Line Lender an amount (the "Swing Line Participation Amount") equal
to (i) such Revolving Credit Lender's Revolving Credit Percentage times (ii)
the sum of the aggregate principal amount of Swing Line Loans then outstanding
which were to have been repaid with such Revolving Credit Loans.
(d) Whenever, at any time after the Swing Line Lender has
received from any Revolving Credit Lender such Lender's Swing Line
Participation Amount, the Swing Line Lender receives any payment on account of
the Swing Line Loans, the Swing Line Lender will distribute to such Revolving
Credit Lender its Swing Line Participation Amount (appropriately adjusted, in
the case of interest payments, to reflect the period of time during which such
Revolving Credit Lender's participating interest was outstanding and funded
and, in the case of principal and interest payments, to reflect such Revolving
Credit Lender's pro rata portion of such payment if such payment is not
sufficient to pay the principal of and interest on all Swing Line Loans then
due); provided, however, that in the event that such payment received by the
Swing Line Lender is required to be returned, such Revolving Credit Lender
will return to the Swing Line Lender any portion thereof previously
distributed to it by the Swing Line Lender.
(e) Each Revolving Credit Lender's obligation to make the
Loans referred to in Section 2.7(b) and to purchase participating interests
pursuant to Section 2.7(c) shall be absolute and unconditional and shall not
be affected by any circumstance, including, without limitation, (i) any
setoff, counterclaim, recoupment, defense or other right which such Revolving
Credit Lender or the Borrower may have against the Swing Line Lender, the
Borrower or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default or an Event of Default or the failure to satisfy any
of the other conditions specified in Section 5; (iii) any adverse change in
the condition (financial or otherwise) of the Borrower or any other Person;
(iv) any breach of this Agreement or any other Loan Document by the Borrower
or any other Person (including, without limitation, any other Revolving Credit
Lender); (v) any reduction or termination of the Commitments; or (vi) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing, and each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
2.8 Repayment of Loans; Evidence of Indebtedness. (a) The
Borrower hereby unconditionally promises to pay to the Administrative Agent
for the account of the Swing Line Lender, the appropriate Revolving Credit
Lender or the appropriate Term Loan Lender, as the case may be, (i) the then
unpaid principal amount of each Revolving Credit Loan of such Revolving Credit
Lender on the Revolving Credit Termination Date, (ii) the then unpaid
principal amount of each Swing Line Loan of the Swing Line Lender on the
Revolving Credit Termination Date and (iii) the principal amount of each Term
Loan of such Term Loan Lender in installments according to the amortization
schedule set forth in Section 2.2 and the then unpaid principal amount of each
Term Loan of such Term Loan Lender on the Term Loan Termination Date. The
Borrower hereby further agrees to pay interest on the unpaid principal amount
of the Loans from time to time outstanding from the date hereof until payment
in full thereof at the rates per annum, and on the dates, set forth in Section
2.15.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to
such Lender resulting from each Loan of such Lender from time to time,
including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.
(c) The Administrative Agent, on behalf of the Borrower,
shall maintain the Register pursuant to Section 10.6(d), and a subaccount
therein for each Lender, in which shall be recorded (i) the amount of each
Loan made hereunder and any Note evidencing such Loan, the Type thereof and
each Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to
each Lender hereunder and (iii) both the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(d) The entries made in the Register and the accounts of
each Lender maintained pursuant to Section 2.8(b) shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Borrower therein recorded in the absence of
manifest error; provided, however, that the failure of any Lender or the
Administrative Agent to maintain the Register or any such account, or any
error therein, shall not in any manner affect the obligation of the Borrower
to repay (with applicable interest) the Loans made to such Borrower by such
Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing any Term Loans,
Revolving Credit Loans or Swing Line Loans, as the case may be, of such
Lender, substantially in the forms of Exhibit G-1, G-2 or G-3 hereto,
respectively, with appropriate insertions as to date and principal amount
(such notes, respectively, "Term Notes", "Revolving Credit Notes" and "Swing
Line Notes").
2.9 Commitment Fees, etc. (a) The Borrower agrees to pay to
the Administrative Agent for the account of each Revolving Credit Lender a
commitment fee (the "Revolving Commitment Fee") for the period from and
including the Closing Date to the last day of the Revolving Credit Commitment
Period, computed at the Revolving Commitment Fee Rate on the average daily
amount of the Available Revolving Credit Commitment of such Lender during the
period for which payment is made, payable quarterly in arrears on the last day
of each March, June, September and December and on the Revolving Credit
Termination Date, commencing on the first of such dates to occur after the
date hereof; provided, however, that any Revolving Commitment Fee accrued with
respect to any of the Commitments of a Defaulting Lender during the period
prior to the time such Lender became a Defaulting Lender and unpaid at such
time shall not be payable by the Borrower so long as such Lender shall be a
Defaulting Lender, except to the extent that such Revolving Commitment Fee
shall otherwise have been due and payable by the Borrower prior to such time;
provided, further, that no such Revolving Commitment Fee shall accrue on any
of the Commitments of a Defaulting Lender so long as such Lender shall be a
Defaulting Lender.
(b) The Borrower agrees to pay to the Administrative Agent
for the account of each Term Loan Lender a commitment fee for the period from
and including the Closing Date to the last day of the Term Loan Commitment
Period, computed at the Term Loan Commitment Fee Rate on the average daily
amount of the Available Term Loan Commitment of such Lender during the period
for which payment is made, payable quarterly in arrears on the last day of
each March, June, September and December and on the last day of the Term Loan
Commitment Period, commencing on the first of such dates to occur after the
date hereof; provided, however, that any such commitment fee accrued with
respect to any of the Commitments of a Defaulting Lender during the period
prior to the time such Lender became a Defaulting Lender and unpaid at such
time shall not be payable by the Borrower so long as such Lender shall be a
Defaulting Lender, except to the extent that such commitment fee shall
otherwise have been due and payable by the Borrower prior to such time;
provided, further, that no such commitment fee shall accrue on any of the
Commitments of a Defaulting Lender so long as such Lender shall be a
Defaulting Lender.
(c) The Borrower agrees to pay to the Arrangers, the
Managers and the Agents the fees in the amounts and on the dates previously
agreed to in writing by the Borrower, the Arrangers, the Managers and the
Agents including, without limitation, pursuant to the Facility Fee Letter.
(d) The Borrower agrees to pay to the Administrative Agent
the fees in the amounts and on the dates from time to time agreed to in
writing by the Borrower and the Administrative Agent including, without
limitation, pursuant to the Administrative Agent Fee Letter.
2.10 Termination or Reduction of Revolving Credit
Commitments. The Borrower shall have the right, upon not less than three
Business Days' notice to the Administrative Agent, to terminate the Revolving
Credit Commitments or, from time to time, to reduce the amount of the
Revolving Credit Commitments; provided, that no such termination or reduction
of Revolving Credit Commitments shall be permitted if after giving effect
thereto and to any prepayments of the Revolving Credit Loans and Swing Line
Loans made on the effective date thereof (a) the Total Revolving Extensions of
Credit would exceed the Total Revolving Credit Commitments or (b) if prior to
the Phase I Final Completion Date or, if the Phase II Approval Date shall have
occurred, the Phase II Final Completion Date, the Project shall not be In
Balance. Any such reduction shall be in an amount equal to $5,000,000, or a
whole multiple thereof (or, if less, shall reduce the Revolving Credit
Commitments to zero), and shall reduce permanently the Revolving Credit
Commitments then in effect. The Borrower shall not reduce the amount of the
Term Loan Commitments.
2.11 Optional Prepayments. The Borrower may at any time and
from time to time prepay the Loans, in whole or in part, without premium or
penalty, upon irrevocable notice delivered to the Administrative Agent at
least three Business Days prior thereto in the case of Eurodollar Loans and at
least one Business Day prior thereto in the case of Base Rate Loans, which
notice shall (i) designate whether the Borrower is prepaying Revolving Credit
Loans and/or Term Loans and (ii) specify the date and amount of prepayment and
whether the prepayment is of Eurodollar Loans or Base Rate Loans; provided,
that if a Eurodollar Loan is prepaid on any day other than the last day of the
Interest Period applicable thereto, the Borrower shall also pay any amounts
owing pursuant to Section 2.21. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof. If
any such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with (except in the case of
Revolving Credit Loans (unless all Revolving Credit Loans are being repaid and
the Revolving Credit Commitments terminated) that are Base Rate Loans and
Swing Line Loans) accrued interest to such date on the amount prepaid. Partial
prepayments of Term Loans and Revolving Credit Loans shall be in an aggregate
principal amount of $5,000,000 or a whole multiple in excess thereof. Partial
prepayments of Swing Line Loans shall be in an aggregate principal amount of
$100,000 or a whole multiple in excess thereof.
2.12 Mandatory Prepayments and Commitment Reductions. (a) If
any Indebtedness shall be incurred by the Borrower or any of the other Loan
Parties (excluding any Indebtedness permitted by Section 7.2 (other than with
respect to subsection (i) thereof)), an amount equal to 100% of the Net Cash
Proceeds thereof shall be applied within one Business Day of receipt by such
Person of such Net Cash Proceeds toward the prepayment of the Obligations in
accordance with Section 2.12(g).
(b) (i) With respect to the Net Cash Proceeds from any Asset
Sale as to which the Borrower or any other Loan Party making such
Asset Sale has not delivered a Reinvestment Notice within the period
required therefor in the definition thereof, the Facility
Proportionate Share of such Net Cash Proceeds (or portion thereof not
subject to such a Reinvestment Notice) shall be applied, within two
Business Days of the expiration of the aforesaid required period for
delivery of a Reinvestment Notice with respect to such Asset Sale,
toward the prepayment of the Obligations in accordance with Section
2.12(g); provided, that, notwithstanding the foregoing, (i) the
aggregate Net Cash Proceeds of Asset Sales that may be excluded from
the foregoing prepayment requirement pursuant to a Reinvestment
Notice shall not exceed $25,000,000 in any Fiscal Year and (ii) on
each Reinvestment Prepayment Date, an amount equal to the Facility
Proportionate Share of the Reinvestment Prepayment Amount with
respect to the relevant Reinvestment Event shall be applied toward
the prepayment of the Obligations in accordance with Section 2.12(g).
(ii) With respect to the Net Cash Proceeds from any
Disposition of Property (other than any Asset Sale with respect to
which a prepayment is required to be made pursuant to Section
2.12(b)(i)) that are required pursuant to the terms of any First Lien
Secured Obligations to be applied to (or offered to be applied to)
the repayment of any First Lien Secured Obligations (in the event any
such repaid First Lien Secured Obligations constitute a revolving
credit facility, accompanied by a permanent reduction of commitments
under such revolving credit facility in the amount of such
repayment), the Facility Proportionate Share of such Net Cash
Proceeds shall be applied, within one Business Day of the date any of
such Net Cash Proceeds are required to be so applied (or offered to
be so applied) to any First Lien Secured Indebtedness, toward the
prepayment of the Obligations in accordance with Section 2.12(g).
(iii) In the event any Net Cash Proceeds from any
Asset Sale are not applied toward the prepayment of the Obligations
pursuant to Section 2.12(b)(i) as a result of not being deemed part
of the "Facility Proportionate Share" of such Net Cash Proceeds and
such amounts are not applied to the prepayment and permanent
reduction of First Lien Secured Obligations for any reason whatsoever
(including the failure of any holder of such First Lien Secured
Obligations to accept an offer of prepayment) within 60 days of the
application of the Facility Proportionate Share of such Net Cash
Proceeds toward the prepayment of the Obligations pursuant to Section
2.12(b)(i), then such amounts shall, on the last day of such 60-day
period, be applied toward the prepayment of the Obligations in
accordance with Section 2.12(g).
(c) No later than (i) two Business Days following the date
on which Loss Proceeds are required to be applied to the prepayment of
Obligations under Section 5.14 of the Disbursement Agreement, (ii) two
Business Days following the date on which Insurance Proceeds and/or Eminent
Domain Proceeds are required to be applied to the prepayment of the
Obligations pursuant to Section 2.24 or (iii) unless the Disbursement
Agreement provides for the deposit of such funds in the Company's Funds
Account (in which case the Disbursement Agreement shall control), two Business
Days following the date on which any Loan Party receives Liquidated Damages
(provided, that to the extent such Liquidated Damages are paid pursuant to any
obligation, default or breach, the results of which can be remedied through
the expenditure of money, and the applicable Loan Party determines in its
reasonable judgment to undertake such remedy, the Liquidated Damages subject
to this subsection (iii) shall be net of reasonable amounts that such Loan
Party anticipates to incur in connection with such remedy (such amounts, the
"Reinvested Amounts"); provided, further, that in the event such Loan Party
has not expended any Reinvested Amounts in furtherance of such remedy by the
date that is six months after a Loan Party initially received the relevant
Liquidated Damages or, in the case of any Reinvested Amounts to be expended in
furtherance of such remedy pursuant to a contract entered into during such
six-month period, such amounts have not been expended by the date that is
twelve months after a Loan Party initially received the relevant Liquidated
Damages, such non-expended amounts shall be applied on the second Business Day
following such sixth-month or twelve-month, as the case may be, anniversary
date toward the prepayment of the Obligations in accordance with Section
2.12(g)), the Borrower shall apply such funds toward the prepayment of the
Obligations in accordance with Section 2.12(g).
(d) If, for any Fiscal Year commencing with the Relevant
Fiscal Year, there shall be Excess Cash Flow, the Borrower shall, and shall
cause the applicable Loan Parties to, on the relevant Excess Cash Flow
Application Date, apply the ECF Percentage of such Excess Cash Flow toward the
prepayment of the Obligations in accordance with Section 2.12(g). Each such
prepayment and commitment reduction shall be made on a date (an "Excess Cash
Flow Application Date") no later than five Business Days after the earlier of
(i) the date on which the financial statements of the Loan Parties referred to
in Section 6.1(a), for the Fiscal Year with respect to which such prepayment
is made, are required to be delivered to the Lenders and (ii) the date such
financial statements are actually delivered.
(e) If the Phase II Approval Date has not occurred on or
prior to the Phase II Commitment Sunset Date, on the Phase II Commitment
Sunset Date the Borrower shall prepay the Obligations in accordance with
Section 2.12(g) in an aggregate principal amount of $550,000,000.
(f) If, on the last day of any period of two full
consecutive fiscal quarters of the Borrower, each such fiscal quarter
beginning after the Phase I Opening Date but in no event such day being
earlier than the later of (x) the Phase I Final Completion Date and (y)
December 31, 2005, the Consolidated EBITDA of the Borrower for such two full
consecutive fiscal quarter period was equal to or greater than $70,000,000 the
Borrower shall, so long as no Default or Event of Default shall have occurred
and be then continuing, apply any amounts then on deposit in the Project
Liquidity Reserve Account on the Liquidity Reserve Payment Date toward the
prepayment of the Obligations in accordance with Section 2.12(g).
(g) Subject to Section 2.18, amounts to be applied to the
prepayment of the Obligations pursuant to this Section 2.12 shall be applied
(i) in the case of Sections 2.12(a), 2.12(b), 2.12(c) and 2.12(d), first, to
the prepayment of the Term Loans, second, to reduce permanently the Revolving
Credit Commitments and, third, to the Borrower or such other Person as shall
be lawfully entitled thereto, (ii) in the case of Sections 2.12(e), to the
prepayment of the Term Loans and to reduce permanently the Revolving Credit
Commitments in such respective amounts as the Borrower may elect and (iii) in
the case of Section 2.12(f), first, to the prepayment of Revolving Credit
Loans (without any permanent reduction of Revolving Credit Commitments),
second, to the prepayment of Term Loans, and third, to the Borrower or such
other Person as shall be lawfully entitled thereto. Any reduction of the
Revolving Credit Commitments in accordance with the foregoing shall be
accompanied by prepayment of the Revolving Credit Loans and/or Swing Line
Loans to the extent, if any, that the Total Revolving Extensions of Credit
exceed the amount of the Total Revolving Credit Commitments as so reduced,
provided that if the aggregate principal amount of Revolving Credit Loans and
Swing Line Loans then outstanding is less than the amount of the Total
Revolving Credit Commitments as so reduced (because L/C Obligations constitute
a portion thereof), the Borrower shall, to the extent of the balance of such
excess, replace outstanding Letters of Credit and/or deposit an amount in
immediately available funds in a cash collateral account established with the
Administrative Agent for the benefit of the Secured Parties on terms and
conditions satisfactory to the Administrative Agent (and the Borrower hereby
grants to the Administrative Agent, for the ratable benefit of the Secured
Parties, a continuing first priority security interest (subject to no other
Liens) in all amounts at any time on deposit in such cash collateral account
to secure all L/C Obligations from time to time outstanding and all other
Obligations). If at any time the Administrative Agent determines that any
funds held in such cash collateral account are subject to any right or claim
of any Person other than the Administrative Agent and the Secured Parties or
that the total amount of such funds is less than the amount of such excess,
the Borrower shall, forthwith upon demand by the Administrative Agent, pay to
the Administrative Agent, as additional funds to be deposited and held in such
cash collateral account, an amount equal to the excess of (a) the amount of
such excess over (b) the total amount of funds, if any, then held in such cash
collateral account that the Administrative Agent determines to be free and
clear of any such right and claim. The application of any prepayment pursuant
to Section 2.11 and this Section 2.12 shall be made, first, to Base Rate Loans
and, second, to Eurodollar Loans. Each prepayment of the Loans under Section
2.11 and this Section 2.12 (except in the case of Revolving Credit Loans
(unless the Revolving Credit Loans are being repaid in full and the Revolving
Credit Commitments terminated) that are Base Rate Loans and Swing Line Loans)
shall be accompanied by accrued interest to the date of such prepayment to the
applicable Lender on the amount prepaid.
2.13 Conversion and Continuation Options. (a) The Borrower
may elect from time to time to convert Eurodollar Loans to Base Rate Loans by
giving the Administrative Agent at least two Business Days' prior irrevocable
notice of such election (which notice may be given by telephone confirmed
promptly in writing), provided that any such conversion of Eurodollar Loans
may only be made on the last day of an Interest Period with respect thereto.
Other than with respect to Swing Line Loans which shall at all times be Base
Rate Loans, the Borrower may elect from time to time to convert Base Rate
Loans to Eurodollar Loans by giving the Administrative Agent at least three
Business Days' prior irrevocable notice of such election (which notice shall
specify the length of the initial Interest Period therefore and may be given
by telephone confirmed promptly in writing), provided that no Base Rate Loan
under a particular Facility may be converted into a Eurodollar Loan (i) when
any Event of Default has occurred and is continuing and the Administrative
Agent or the Required Facility Lenders in respect of such Facility have
determined in its or their sole discretion not to permit such conversions or
(ii) after the date that is one month prior to the final scheduled termination
or maturity date of such Facility. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the Administrative Agent (which notice
may be given by telephone confirmed promptly in writing), in accordance with
the applicable provisions of the term "Interest Period" set forth in Section
1.1, of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan under a particular Facility may be continued
as such (i) when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Required Facility Lenders in respect of such
Facility have determined in its or their sole discretion not to permit such
continuations or (ii) after the date that is one month prior to the final
scheduled termination or maturity date of such Facility, and provided,
further, that if the Borrower shall fail to give any required notice as
described above in this paragraph or if such continuation is not permitted
pursuant to the preceding proviso such Loans shall be automatically converted
to Base Rate Loans on the last day of such then expiring Interest Period. Upon
receipt of any such notice the Administrative Agent shall promptly notify each
relevant Lender thereof.
2.14 Minimum Amounts and Maximum Number of Eurodollar
Tranches. Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations and optional prepayments of Eurodollar
Loans hereunder and all selections of Interest Periods hereunder shall be in
such amounts and be made pursuant to such elections so that (a) after giving
effect thereto, the aggregate principal amount of the Eurodollar Loans
comprising each Eurodollar Tranche shall be equal to $5,000,000 or a whole
multiple of $1,000,000 in excess thereof and (b) no more than ten Eurodollar
Tranches shall be outstanding at any one time.
2.15 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
day plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any
Loan or Reimbursement Obligation shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise) or an Event of Default has
otherwise occurred and is continuing, all outstanding Loans and Reimbursement
Obligations (whether or not overdue) shall bear interest at a rate per annum
that is equal to (x) in the case of the Loans, the rate that would otherwise
be applicable thereto pursuant to the foregoing provisions of this Section
plus 2.0% or (y) in the case of Reimbursement Obligations, the rate applicable
to Base Rate Loans under the Revolving Credit Facility plus 2.0% and (ii) if
all or a portion of any interest payable on any Loan or Reimbursement
Obligation or any commitment fee or other amount payable hereunder (in
accordance with Section 2.9 or otherwise) shall not be paid when due (whether
at the stated maturity, by acceleration or otherwise), such overdue amount
shall bear interest at a rate per annum equal to the rate then applicable to
Base Rate Loans under the relevant Facility plus 2.0% (or, in the case of any
such other amounts that do not relate to a particular Facility, the rate then
applicable to Base Rate Loans under the Revolving Credit Facility plus 2.0%),
in each case, with respect to subsections (i) and (ii) above, from the date of
such non-payment until such amount is paid in full (after as well as before
judgment) or so long as such Event of Default is continuing.
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of
this Section shall be payable from time to time on demand.
2.16 Computation of Interest and Fees. (a) Interest, fees
and commissions payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to Base
Rate Loans the rate of interest on which is calculated on the basis of the
Prime Rate, the interest thereon shall be calculated on the basis of a 365-day
year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of each determination
of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from
a change in the Base Rate or the Eurocurrency Reserve Requirements shall
become effective as of the opening of business on the day on which such change
becomes effective. The Administrative Agent shall as soon as practicable
notify the Borrower and the relevant Lenders of the effective date and the
amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the
Borrower, deliver to the Borrower a statement showing the quotations, if any,
used by the Administrative Agent in determining any interest rate pursuant to
Section 2.15(a).
2.17 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for such Interest
Period, or
(b) the Administrative Agent shall have received notice from
the Applicable Facility Lenders in respect of the relevant Facility that the
Eurodollar Rate determined or to be determined for such Interest Period will
not adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining their affected Loans
during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to
the Borrower and the relevant Lenders as soon as practicable thereafter. If
such notice is given (x) any Eurodollar Loans under the relevant Facility
requested to be made on the first day of such Interest Period shall be made as
Base Rate Loans, (y) any Loans under the relevant Facility that were to have
been converted on the first day of such Interest Period to Eurodollar Loans
shall be continued as Base Rate Loans and (z) any outstanding Eurodollar Loans
under the relevant Facility shall be converted, on the last day of the then
current Interest Period with respect thereto, to Base Rate Loans. Until such
notice has been withdrawn by the Administrative Agent, no further Eurodollar
Loans under the relevant Facility shall be made or continued as such, nor
shall the Borrower have the right to convert Loans under the relevant Facility
to Eurodollar Loans. If the Borrower receives such notice from the
Administrative Agent prior to the first day of an Interest Period with respect
to new Loans to be made on such day, the Borrower shall have the right to
withdraw such related Notice of Borrowing and have no liability under Section
2.21.
2.18 Pro Rata Treatment and Payments. (a) Each borrowing by
the Borrower from the Lenders hereunder, each payment by the Borrower on
account of any commitment fee and any reduction of the Commitments of the
Lenders shall be made pro rata according to the respective Term Loan
Percentages or Revolving Credit Percentages, as the case may be, of the
relevant Lenders. Subject to Section 2.18(c), each payment (other than
prepayments) in respect of principal or interest in respect of the Loans, and
each payment in respect of fees or expenses payable hereunder shall be applied
to the amounts of such obligations owing to the Lenders pro rata according to
the respective amounts then due and owing to the Lenders. The application of
any mandatory prepayment pursuant to this Section 2.18 shall be made, first,
to Base Rate Loans and, second, to Eurodollar Loans.
(b) Each payment (including each prepayment) of Term Loans
shall be allocated among the Term Loan Lenders holding such Term Loans pro
rata based on the principal amount of such Term Loans held by such Term Loan
Lenders, and shall be applied to the installments of such Term Loans (provided
that the final payment of Term Loans on the Term Loan Termination Date shall
be treated as an "installment" for purposes of this subsection (b)) pro rata
based on the remaining outstanding principal amount of such installments.
Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on the Revolving Credit Loans shall be
made pro rata according to the respective outstanding principal amounts of the
Revolving Credit Loans then held by the Revolving Credit Lenders. Each payment
in respect of Reimbursement Obligations in connection with any Letter of
Credit shall be made to the Issuing Lender.
(d) Subject to Section 2.20, all payments (including
prepayments) to be made by the Borrower hereunder, whether on account of
principal, interest, fees or otherwise, shall be made without setoff or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the
due date thereof to the Administrative Agent, for the account of the Lenders,
at the Payment Office, in Dollars and in immediately available funds. The
Administrative Agent shall distribute such payments to the Lenders promptly
upon receipt in like funds as received. If any payment hereunder (other than
payments on the Eurodollar Loans) becomes due and payable on a day other than
a Business Day, such payment shall be extended to the next succeeding Business
Day. If any payment on a Eurodollar Loan becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day. In the case of any extension
of any payment of principal pursuant to the preceding two sentences, interest
thereon shall be payable at the then applicable rate during such extension.
(e) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make
the amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to
the Administrative Agent by the required time on the Borrowing Date therefor,
such Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available
to the Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this paragraph
shall be conclusive in the absence of manifest error. If such Lender's share
of such borrowing is not made available to the Administrative Agent by such
Lender within three Business Days of such Borrowing Date, the Administrative
Agent shall also be entitled to recover such amount with interest thereon at
the rate per annum applicable to Base Rate Loans under the relevant Facility,
on demand, from the Borrower.
(f) Unless the Administrative Agent shall have been notified
in writing by the Borrower prior to the date of any payment being made
hereunder that the Borrower will not make such payment to the Administrative
Agent, the Administrative Agent may assume that the Borrower is making such
payment, and the Administrative Agent may, but shall not be required to, in
reliance upon such assumption, make available to the Lenders their respective
pro rata shares of a corresponding amount. If such payment is not made to the
Administrative Agent by the Borrower within three Business Days of such
required date, the Administrative Agent shall be entitled to recover, on
demand, from each Lender to which any amount which was made available pursuant
to the preceding sentence, such amount with interest thereon at the rate per
annum equal to the daily average Federal Funds Effective Rate. Nothing herein
shall be deemed to limit the rights of the Administrative Agent or any Lender
against the Borrower.
2.19 Requirements of Law. (a) Subject to the provisions of
Section 2.20 (which shall be controlling with respect to the matters covered
thereby), if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority made subsequent to the date hereof:
(i) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender that is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(ii) shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting
into, continuing or maintaining Eurodollar Loans or issuing or participating
in Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, upon receipt by the Borrower of the notice
described in the last sentence of this paragraph, the Borrower shall promptly
pay such Lender any additional amounts necessary to compensate such Lender on
an after-tax basis for such increased cost or reduced amount receivable;
provided, that the Borrower shall not be required to compensate a Lender
pursuant to this subsection (a) for any increased costs or reduced amounts
receivable from more than six months prior to the date on which such Lender
notified the Borrower of such Lender's intention to claim compensation
therefor; provided, further, that, if the circumstances giving rise to such
claim have a retroactive effect, then such six-month period shall be extended
to include the period of such retroactive effect. If any Lender becomes
entitled to claim any additional amounts pursuant to this Section, it shall
promptly notify the Borrower in writing (with a copy to the Administrative
Agent) of the event by reason of which it has become so entitled, and setting
forth in such notice, in reasonable detail, the basis and calculation of such
amounts.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof shall have the
effect of reducing the rate of return on such Lender's or such corporation's
capital as a consequence of its obligations hereunder or under or in respect
of any Letter of Credit to a level below that which such Lender or such
corporation could have achieved but for such adoption, change or compliance
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender to be
material, then from time to time, after submission by such Lender to the
Borrower (with a copy to the Administrative Agent) of a written request
therefor (which request shall set forth, in reasonable detail, the basis and
calculation of the additional amounts sought), the Borrower shall pay to such
Lender such additional amount or amounts as set forth in the aforesaid notice;
provided, that the Borrower shall not be required to compensate a Lender
pursuant to this subsection (b) for any amounts incurred more than six months
prior to the date on which such Lender notified the Borrower of such Lender's
intention to claim compensation therefor; provided, further, that, if the
circumstances giving rise to such claim have a retroactive effect, then such
six-month period shall be extended to include the period of such retroactive
effect.
(c) A certificate as to any additional amounts payable
pursuant to this Section submitted by any Lender to the Borrower (with a copy
to the Administrative Agent) and setting forth, in reasonable detail, the
basis and calculation of such amounts shall be conclusive in the absence of
manifest error. The obligations of the Borrower pursuant to this Section shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.20 Taxes. (a) All payments made by the Borrower or any
Guarantor under this Agreement or any other Loan Document shall be made free
and clear of, and without deduction or withholding for or on account of, any
present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, other than
Excluded Taxes (collectively, the "Non-Excluded Taxes"). If any such
Non-Excluded Taxes are required to be withheld from any amounts payable to any
Arranger, any Agent, any Manager or any Lender hereunder, the amounts so
payable to such Arranger, such Agent, such Manager or such Lender shall be
increased to the extent necessary to yield to such Arranger, such Agent, such
Manager or such Lender (after payment of all Non-Excluded Taxes) interest or
any such other amounts that would have been received hereunder or under any
other Loan Document had such withholding not been required; provided, however,
that neither the Borrower nor a Guarantor shall be required to increase any
such amounts payable to any Arranger, any Agent, any Manager or any Lender
with respect to any Non-Excluded Taxes (i) that are attributable to such
Arranger's, such Agent's, such Manager's or such Lender's failure to comply
with the requirements of subsection (f) or (g) of this Section 2.20, or (ii)
that are withholding taxes imposed on amounts payable to such Arranger, such
Agent, such Manager or such Lender at the time such Arranger, such Agent, such
Manager or such Lender becomes a party to this Agreement. The Borrower or the
applicable Guarantor shall make any such required withholding and pay the full
amount withheld to the relevant tax authority or other Governmental Authority
in accordance with applicable Requirements of Law.
(b) If any Arranger, Agent, Manager or Lender, as
applicable, receives a refund, credit or other tax benefit for which a payment
has been made by the Borrower or any Guarantor pursuant to this Section 2.20,
which refund, credit or other tax benefit in the good faith judgment of such
Arranger, Agent, Manager or Lender, as the case may be, is attributable to
such payment made by the Borrower or such Guarantor, then such Arranger,
Agent, Manager or Lender, as the case may be, shall reimburse the Borrower or
such Guarantor for such amount as such Arranger, Agent, Manager or Lender, as
the case may be, determines in good faith to be the proportion of the refund,
credit or other tax benefit as will leave it, after such reimbursement, in the
same position it would have been in if the payment of such tax and any payment
by the Borrower or such Guarantor under this Section 2.20 had not been made.
In addition, upon the Borrower's reasonable request each Arranger, Agent,
Manager and Lender, as applicable, shall use its reasonable efforts to pursue
any available refund, credit or other tax benefit that, in the reasonable and
good faith determination of such Arranger, Agent, Manager or Lender, as
applicable, is attributable to any tax with respect to which the Borrower or
any Guarantor has made a payment pursuant to this Agreement, and shall remit
immediately available funds to the Borrower in an amount equal to any such
refund, credit or other tax benefit (including any interest received thereon).
(c) Subject to subsection (f) below, the Borrower shall
indemnify each Arranger, each Agent, each Manager and any Lender for the full
amount of Non-Excluded Taxes to the extent payable but not paid by the
Borrower or any Guarantor pursuant to Section 2.20(a) and paid by such
Arranger, Agent, Manager or Lender or any of their respective Affiliates
(including, without limitation, any Non-Excluded Taxes imposed by any
Governmental Authority on amounts payable under Section 2.20(a) or this
Section 2.20(c) and any penalties, additions to tax interest and related
expenses attributable to such Non-Excluded Taxes). Payment under this
indemnification shall be made within ten (10) Business Days from the date any
Arranger, any Agent, any Manager or any Lender or any of their respective
Affiliates makes written demand therefor, which demand shall set forth in
reasonable detail the basis and calculation of the amounts demanded. Any
Lender (or Transferee) claiming any indemnity payment or additional amounts
payable pursuant to Section 2.20(a) shall use reasonable efforts (consistent
with legal and regulatory restrictions) to file any certificate or document
reasonably requested in writing by the Borrower or a Guarantor if the making
of such a filing would avoid the need for or reduce the amount of any such
indemnity payment or additional amounts that may thereafter accrue.
(d) Whenever any Non-Excluded Taxes are payable by the
Borrower or a Guarantor, as promptly as practicable thereafter the Borrower or
such Guarantor shall send to the Administrative Agent for the account of the
relevant Arranger, Agent, Manager or Lender, as the case may be, a certified
copy of an original official receipt received by the Borrower or such
Guarantor showing payment thereof.
(e) The agreements in this Section 2.20 shall survive the
termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
(f) Each Lender (or Transferee) that is not a U.S. Person
(as defined in Section 7701(a)(30) of the Code) (a "Non-U.S. Lender") shall
deliver to the Borrower and the Administrative Agent (and, in the case of a
Participant, to the Lender from which the related participation shall have
been purchased) two duly completed copies of either U.S. Internal Revenue
Service Form W-8BEN or Form W-8ECI (or any subsequent revisions thereof or
successors thereto), or, in the case of a Non-U.S. Lender claiming exemption
from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest," a Form W-8BEN and a
statement substantially in the form of Exhibit I hereto (or any subsequent
revisions thereof or successors thereto) to the effect that such Non-U.S.
Lender is eligible for a complete exemption from withholding of U.S. taxes
under Section 871(h) or 881(c) of the Code, or any subsequent versions of any
of the foregoing or successors thereto, properly completed and duly executed
by such Non-U.S. Lender claiming complete exemption from, or a reduced rate
of, U.S. federal withholding tax on all payments by the Borrower or any
Guarantor under this Agreement and the other Loan Documents. Such forms shall
be delivered by each Non-U.S. Lender on or before the date it becomes a party
to this Agreement (or, in the case of any Participant, on or before the date
such Participant purchases the related participation) and on or before the
date of the first payment to it following the date, if any, such Non-U.S.
Lender changes its applicable lending office pursuant to Section 2.23 hereof.
In addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). If a Non-U.S. Lender
is unable to deliver any form pursuant to this Section 2.20(f), such Non-U.S.
Lender shall be entitled to neither relief from withholding nor indemnity
hereunder with respect to Non-Excluded Taxes for the period that would have
been covered by such form, unless (i) such Non-U.S. Lender's inability to
deliver such form resulted from a change in law after the date on which such
Lender became a Lender hereunder or as a result of a change in the
circumstances of the Borrower or any Guarantor or the use of proceeds of such
Non-U.S. Lender's loans or (ii) such Non-U.S. Lender's assignor (if any) was
entitled, at the time of assignment, to the indemnity afforded hereunder.
Notwithstanding any other provision of this paragraph, a Non-U.S. Lender shall
not be required to deliver any form pursuant to this paragraph that such
Non-U.S. Lender is not legally entitled to deliver.
(g) Each Arranger, Agent, Manager and Lender that is
entitled to an exemption from non-U.S. withholding taxes under the law of the
jurisdiction in which the Borrower or a Guarantor is located, or any treaty to
which such jurisdiction is a party, with respect to payments under this
Agreement or any other Loan Document shall deliver to the Borrower and the
relevant Guarantor(s), as applicable (with a copy to the Administrative
Agent), at the time or times prescribed by applicable Requirements of Law or
reasonably requested by the Borrower or such Guarantor(s), such properly
completed and executed documentation prescribed by applicable Requirements of
Law as will permit such payments to be made without withholding; provided,
that such Arranger, Agent, Manager or Lender is legally entitled to complete,
execute and deliver such documentation and in such Person's judgment such
completion, execution or submission would not materially prejudice the legal
position of such Person.
(h) The Borrower and each Guarantor shall pay all
Non-Excluded Taxes to the relevant Governmental Authority in accordance with
applicable Requirements of Law.
2.21 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss (other than loss of anticipated
profits) or expense that such Lender may sustain or incur as a consequence of
(a) default by the Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement
(whether as a result of a Stop Funding Notice or otherwise) other than by
reason of Section 2.17 if the Administrative Agent gives notice to the
Borrower thereunder and the Borrower withdraws a Notice of Borrowing in
accordance with the last sentence of Section 2.17, (b) default by the Borrower
in making any prepayment after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making of a
prepayment or conversion of Eurodollar Loans on a day that is not the last day
of an Interest Period with respect thereto. Such indemnification may include
an amount equal to the excess, if any, of (i) the amount of interest that
would have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure
to borrow, convert or continue to the last day of such Interest Period (or, in
the case of a failure to borrow, convert or continue, the Interest Period that
would have commenced on the date of such failure) in each case at the
applicable rate of interest for such Loans provided for herein (excluding,
however, the Applicable Margin included therein, if any) over (ii) the amount
of interest (as reasonably determined by such Lender) that would have accrued
to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank eurodollar market. A
certificate as to any amounts payable pursuant to this Section submitted to
the Borrower by any Lender shall be conclusive in the absence of manifest
error. This covenant shall survive the termination of this Agreement and the
payment of the Loans and Letters of Credit and all other amounts payable
hereunder.
2.22 Illegality. Notwithstanding any other provision herein,
if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, then (a)
the commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert Base Rate Loans to Eurodollar Loans shall
forthwith be canceled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans
on the respective last days of the then current Interest Periods with respect
to such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of
the then current Interest Period with respect thereto, the Borrower shall pay
to such Lender such amounts, if any, as may be required pursuant to Section
2.21.
2.23 Change of Lending Office. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of Section 2.19, 2.20
or 2.22 with respect to such Lender, it will, if requested by the Borrower or
a Guarantor, use reasonable efforts (subject to overall policy considerations
of such Lender) to designate another lending office for any Loans affected by
such event with the object of reducing or avoiding the consequences of such
event; provided, that such designation is made on terms that, in the sole
judgment of such Lender, cause such Lender and its lending office(s) to suffer
no economic, legal or regulatory disadvantage, and provided, further, that
nothing in this Section shall affect or postpone any of the obligations or
rights of any Borrower or Lender pursuant to Section 2.19, 2.20 or 2.22.
2.24 Insurance Proceeds and Eminent Domain Proceeds. (a)
This Section 2.24 shall apply to all Insurance Proceeds and all Eminent Domain
Proceeds received by any Loan Party (i) in the case of Insurance Proceeds and
Eminent Domain Proceeds related to the Phase I Project, after the Phase I
Substantial Completion Date, (ii) in the case of Insurance Proceeds and
Eminent Domain Proceeds related to the Phase II Project, after the Phase II
Completion Date and (iii) in the case of Insurance Proceeds and Eminent Domain
Proceeds that do not relate to the Phase I Project or the Phase II Project, at
all times. The Facility Proportionate Share of any such Insurance Proceeds or
Eminent Domain Proceeds (other than those described in subsection (b) below)
shall be applied to the prepayment of the Obligations in accordance with
Section 2.12(c)(ii), unless each of the following conditions are satisfied or
waived by the Majority Initial Lending Institutions (and, if required by
Section 2.24(d), the Required Lenders) as required pursuant to Section 2.24(c)
or 2.24(d), as the case may be, within 60 Business Days (or, in the case of
Insurance Proceeds or Eminent Domain Proceeds described in Section 2.24(d), 90
Business Days) after any Loan Party's receipt of such Insurance Proceeds or
Eminent Domain Proceeds, in which event such amounts shall be applied to the
repair or restoration of the Project in accordance with the terms of such
Sections:
(i) such damage or destruction or Event of Eminent
Domain does not constitute the destruction of all or substantially
all of the man-made portion of the Project;
(ii) neither a Default nor an Event of Default has
occurred and is continuing (other than a Default or an Event of
Default resulting solely from such damage or destruction or Event of
Eminent Domain) and after giving effect to any proposed repair and
restoration (assuming any Defaults or Events of Default that occurred
prior thereto solely as a result from such damage or destruction or
Event of Eminent Domain have been waived or otherwise cured), no
Default or Event of Default could reasonably be expected to result
from such damage or destruction or proposed repair and restoration or
Event of Eminent Domain;
(iii) the Borrower certifies, and the Majority
Initial Lending Institutions (with, if required by Section 2.24(d),
the consent of the Required Lenders) determine in their reasonable
judgment in consultation with the Construction Consultant, that
repair or restoration of the Project to a condition substantially
similar to the condition of the Project immediately prior to the
event or events to which the relevant Insurance Proceeds or Eminent
Domain Proceeds, as the case may be relate, is technically and
economically feasible within a twelve-month period after receipt of
any such Insurance Proceeds or Eminent Domain Proceeds, and that a
sufficient amount of funds is or will be available to the relevant
Loan Party to make such repairs and restorations (subject at all
times to Section 7.7);
(iv) the Borrower delivers to the Administrative
Agent a plan describing in reasonable detail the nature of the
repairs or restoration to be effected and the anticipated costs and
schedule associated therewith (the "Repair Plan"), in form and
substance reasonably satisfactory to the Majority Initial Lending
Institutions (with, if required by Section 2.24(d), the Required
Lenders);
(v) the Borrower certifies, and the Majority
Initial Lending Institutions (with, if required by Section 2.24(d),
the consent of the Required Lenders) determine in their reasonable
judgment, that a sufficient amount of funds is or will be available
to the Borrower to make all payments on Indebtedness which will
become due during and following the repair period and, in any event,
to maintain compliance with the covenants set forth in Section 7.1
during such repair period;
(vi) no Permit is necessary to proceed with the
repair and restoration of the Project and no other instrument is
necessary for the purpose of effecting the repairs or restoration of
the Project or subjecting the repairs or restoration to the Liens of
the applicable Security Documents and maintaining the priority of
such Liens or, if any of the above is necessary, the Borrower and/or
the appropriate Loan Party will be able to obtain the same as and
when required;
(vii) the Majority Initial Lending Institutions
shall receive such additional title insurance, title insurance
endorsements, mechanic's lien waivers, certificates, opinions or
other matters as they may reasonably request as necessary or
appropriate in connection with such repairs or restoration of the
Project or to preserve or protect the Lenders' interests hereunder
and in the applicable Collateral; and
(viii) the proposed repair or restoration is not
prohibited by each of the other Financing Agreements.
(b) (i) The Loan Parties shall have the right to use up to
an amount of $5,000,000 of Insurance Proceeds and/or Eminent Domain
Proceeds received by the Loan Parties for each single loss or series
of related losses, but in any event no more than an aggregate amount
of $10,000,000 of such Insurance Proceeds and/or Eminent Domain
Proceeds during the term of the Facility, for working capital and/or
to repair, restore and/or replace the Property with respect to which
such Insurance Proceeds and/or Eminent Domain Proceeds relate and
Sections 2.12 and 2.24 (other than this Section 2.24(b)(i)) shall not
apply to such proceeds.
(ii) If, subject to Section 2.24(b)(i), there shall
occur any damage, destruction or Event of Eminent Domain of or with
respect to the Project with respect to which Insurance Proceeds
and/or Eminent Domain Proceeds received by the relevant Loan
Party(ies) for any single loss or series of related losses not in
excess of $30,000,000 are payable, such Insurance Proceeds and/or
Eminent Domain Proceeds shall be held by the Administrative Agent in
a Funding Account and released by the Administrative Agent to the
relevant Loan Party(ies) in amounts from time to time necessary to
make payments for work undertaken towards repair, restoration or
reconstruction necessitated by such event(s), upon presentation of
documentation reasonably satisfactory to the Administrative Agent
supporting such requested payments.
(c) Provided that the conditions set forth in subsection (a)
above have been waived by the Majority Initial Lending Institutions, or have
been acknowledged by such Persons as having been satisfied, which
acknowledgement shall not be unreasonably withheld, delayed or conditioned, if
there shall occur any damage, destruction or Event of Eminent Domain of or
with respect to the Project with respect to which Insurance Proceeds and/or
Eminent Domain Proceeds received by the relevant Loan Party(ies) for any
single loss or series of related losses in excess of $30,000,000, but not in
excess of $100,000,000, are payable, such Insurance Proceeds and/or Eminent
Domain Proceeds received by relevant Loan Party(ies) shall be held by the
Administrative Agent in a Funding Account and released by the Administrative
Agent to relevant Loan Party(ies) in accordance with subsection (e) below.
(d) Provided that the conditions set forth in subsection (a)
above have been waived by the Majority Initial Lending Institutions and the
Required Lenders, or have been acknowledged by such Persons as having been
satisfied, which acknowledgement shall not be unreasonably withheld, delayed
or conditioned, if there shall occur any damage, destruction or Event of
Eminent Domain of or with respect to the Project with respect to which
Insurance Proceeds and/or Eminent Domain Proceeds received by the relevant
Loan Party(ies) for any single loss or series of related losses in excess of
$100,000,000 are payable, such Insurance Proceeds and/or Eminent Domain
Proceeds shall be held by the Administrative Agent in a Funding Account and
released by the Administrative Agent to the relevant Loan Party(ies) in
accordance with subsection (e) below.
(e) Except as provided in Section 2.24(b), amounts which are
to be applied to repair or restoration of the Project pursuant to this Section
2.24 shall be disbursed by the Administrative Agent from the applicable
Funding Account in accordance with the procedures set forth in this Section
2.24(e). From time to time the Administrative Agent's authorization of release
of Insurance Proceeds and/or Eminent Domain Proceeds for application toward
such repairs or restoration shall be conditioned upon the relevant Loan
Party's delivery to the Administrative Agent of (i) a certificate from the
Borrower (I) describing in reasonable detail the nature of the repairs or
restoration to be effected with such release and certifying that such repairs
or restoration are materially consistent with, and shall be undertaken in
accordance with, the Repair Plan, (II) stating the cost of such repairs or
restoration, which shall be no less than the amount of Insurance Proceeds
and/or Eminent Domain Proceeds requested in such release, and that such
requested release amount will be applied to the cost thereof, (III) stating
that the aggregate amount requested in respect of such repairs or restoration
(when added to any other Insurance Proceeds and/or Eminent Domain Proceeds
received by the relevant Loan Party(ies) or funds otherwise made available to
the Loan Parties in respect of such damage or destruction or Event of Eminent
Domain) does not exceed the cost of such repairs or restoration and that a
sufficient amount of funds is or will be available to the relevant Loan
Party(ies) to complete such repair or restoration and (IV) stating that
neither a Default nor an Event of Default has occurred and is continuing other
than a Default or an Event of Default resulting solely from such damage,
destruction or Event of Eminent Domain (provided, that in any event no Default
or Event of Default under Sections 7.1 or 8(a) shall have occurred and be
continuing), (ii) such documents, certificates and information of the type
described in Section 2.24(a)(vii) as the Majority Initial Lending Institutions
may reasonably request and (iii) in the event such repairs or restorations
relate to damage, destruction or Event of Eminent Domain of the type described
in Section 2.24(d), all other documents, certificates and information with
respect to such Insurance Proceeds, Eminent Domain Proceeds, repair and/or
restoration as the Majority Initial Lending Institutions may reasonably
request as necessary or appropriate in connection with such repairs or
restoration of the Project or to preserve or protect the Lenders' interests
hereunder and in the applicable Collateral.
(f) If, (i) any Insurance Proceeds and/or Eminent Domain
Proceeds have not been applied to the repair or restoration of the Project by
(A) in the case of amounts subject to Section 2.24(b)(ii), twelve months after
receipt of such amounts and (B) in the case of amounts subject to Sections
2.24(c) and 2.24(d), the completion date set forth in the associated Repair
Plan or (ii) after Insurance Proceeds and/or Eminent Domain Proceeds have been
applied to the repair or restoration of the Project as provided in this
Section 2.24 (other than Section 2.24(b)(i)) any excess Insurance Proceeds
and/or Eminent Domain Proceeds remain, then, in each case, the Facility
Proportionate Share of such Insurance Proceeds and/or Eminent Domain Proceeds
shall be applied to the prepayment of the Obligations in accordance with
Section 2.12(c)(ii).
(g) (i) On the date any Insurance Proceeds and/or any
Eminent Domain Proceeds (other than any Insurance Proceeds and/or Eminent
Domain Proceeds with respect to which a prepayment is required to be made
pursuant to this Section 2.24) are required pursuant to the terms of any First
Lien Secured Obligations to be applied to (or offered to be applied to) the
repayment of any First Lien Secured Obligations (in the event any such repaid
First Lien Secured Obligations constitute a revolving credit facility,
accompanied by a permanent reduction of commitments under such revolving
credit facility in the amount of such repayment), the Facility Proportionate
Share of such Insurance Proceeds and/or Eminent Domain Proceeds shall be
applied toward the prepayment of the Obligations in accordance with Section
2.12(c)(ii).
(ii) In the event any Insurance Proceeds and/or Eminent
Domain Proceeds are not applied toward the prepayment of the
Obligations pursuant to Section 2.12 and this Section 2.24 as a
result of not being deemed part of the "Facility Proportionate Share"
of such Insurance Proceeds and/or Eminent Domain Proceeds and such
amounts are not applied to the prepayment and permanent reduction of
other First Lien Secured Obligations for any reason whatsoever
(including the failure of any holder of such First Lien Secured
Obligations to accept an offer of prepayment) within 60 days of the
application of the Facility Proportionate Share of such proceeds to
the Obligations in accordance with Section 2.12, then such amounts
shall, on the last day of such 60-day period, be applied to the
prepayment of the Obligations in accordance with Section 2.12(c)(ii).
2.25 Replacement of Lenders under Certain Circumstances. The
Borrower shall be permitted to replace any Lender (and cause such Lender to
assign its outstanding Loans and Commitments, if any, in full to one or more
replacement financial institutions or other Persons) that (a) requests
reimbursement for amounts owing pursuant to Section 2.19 or 2.20 or gives a
notice of illegality pursuant to Section 2.22, (b) is a Defaulting Lender or
(c) does not consent to any proposed amendment, modification, termination,
waiver or consent as contemplated by Sections 10.1(a)(i), 10.1(a)(ii),
10.1(a)(viii), 10.1(a)(ix) or 10.1(a)(x) where the consent of the Required
Lenders shall have been obtained; provided that (i) such replacement does not
conflict with any Requirement of Law, (ii) no Event of Default shall have
occurred and be continuing at the time of such replacement, (iii) prior to any
such replacement, such Lender shall have taken no action under Section 2.23 so
as to eliminate the continued need for payment of amounts owing pursuant to
Section 2.19 or 2.20 or to eliminate the illegality referred to in such notice
of illegality given pursuant to Section 2.22, (iv) on the date of such
replacement, the replacement financial institution(s) or other Persons shall
pay to such replaced Lender an amount equal to the sum of (without
duplication) (A) an amount equal to the principal of, and all accrued interest
on, all outstanding Loans of the such Lender, (B) an amount equal to all
unreimbursed drawings under Letters of Credit that have been funded by such
Lender, together with all then unpaid interest with respect thereto at such
time and (C) an amount equal to all accrued, but theretofore unpaid fees owing
to such Lender pursuant to Section 2.9 through the date of replacement, (v) on
the date of such replacement the Borrower shall pay to such replaced Lender
any amounts due and payable to such Lender pursuant to Section 2.19, 2.20 or
2.21, (vi) the replacement financial institution(s) or other Persons shall be
Eligible Assignees, (vii) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of Section 10.6(c) (provided
that the Borrower shall be obligated to pay the registration and processing
fee referred to therein), (viii) if such replaced Lender was replaced pursuant
to clause (d) above, such replacement financial institution(s) or other
Persons shall consent, at the time of such replacement, to each matter in
respect of which such replaced Lender had not consented and (ix) any such
replacement shall not be deemed to be a waiver of any rights that any Loan
Party, the Administrative Agent or any other Lender shall have against the
replaced Lender. The Borrower may not elect to replace any Lender pursuant to
this Section 2.25 that is also an Issuing Bank unless, prior to the
effectiveness of such election, the Borrower shall have caused each
outstanding Letter of Credit issued thereby to be cancelled. Upon the payment
of all amounts owing to any replaced Lender in accordance with this Section
2.25, such replaced Lender shall no longer constitute a "Lender" for purposes
hereof; provided, any rights of such Lender to indemnification hereunder shall
survive as to such Lender.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other
Revolving Credit Lenders set forth in Section 3.4(a), agrees to issue standby
and, if agreed to by the applicable Issuing Lender, commercial letters of
credit ("Letters of Credit") for the account of the Borrower on any Business
Day during the Letter of Credit Commitment Period in such form as may be
approved from time to time by the Issuing Lender; provided, that the Issuing
Lender shall have no obligation to issue any Letter of Credit if, after giving
effect to such issuance, (i) the L/C Obligations would exceed the L/C
Commitment or (ii) the aggregate amount of the Available Revolving Credit
Commitments would be less than zero. Each Letter of Credit shall (i) be
denominated in Dollars and (ii) expire no later than the earlier of (x) the
date which is one year after the date of issuance and (y) the date which is
five Business Days prior to the Scheduled Revolving Credit Termination Date,
provided that any Letter of Credit may provide for the extension of the expiry
date thereof for additional one-year periods (which shall in no event extend
beyond the date referred to in subsection (y) above).
(b) The Issuing Lender shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any L/C Participant to exceed any limits imposed
by, any applicable Requirement of Law.
3.2 Procedure for Issuance of Letters of Credit.(a) (a)
Prior to the Final Completion Date with respect to a Project Phase, the
Borrower shall have the right to request that the Issuing Lender issue a
Letter of Credit to be utilized in furtherance of the payment or support for
such Project Phase's Project Costs. If the Borrower desires that the Issuing
Lender issue such a Letter of Credit, the Borrower may request that the
Issuing Lender issue a Letter of Credit by delivering to the Issuing Lender
and the Disbursement Agent, in each case in accordance with and pursuant to
the terms of Section 2.3 of the Disbursement Agreement, a Notice of Advance
Request in the form, at the times and as required under the Disbursement
Agreement. Notwithstanding any provision of the Disbursement Agreement to the
contrary, such Notice of Advance Request and the related Advance Confirmation
Notice must be received by the Issuing Lender at least 3 Business Days (or
such shorter period agreed to by the Issuing Lender) prior to the proposed
date of issuance (in addition to such other documents, certificates, documents
and papers as the Issuing Lender may request) and must contain all the
information relevant to the proposed Letter of Credit issuance as set forth in
a Letter of Credit Request.
(b) On or after the date that is 60 days prior to the
reasonably anticipated Phase I Opening Date, the Borrower shall have the right
to request that the Issuing Lender issue a Letter of Credit to be utilized for
purposes permitted hereby other than in furtherance of the payment or support
for a Project Phase's Project Costs. If the Borrower desires that the Issuing
Lender issue such a Letter of Credit, the Borrower may request that the
Issuing Lender issue a Letter of Credit by delivering to the Issuing Lender
and the Administrative Agent, at least 3 Business Days (or such shorter period
agreed to by the Issuing Lender) prior to the proposed date of issuance (such
proposed date to be a Business Day), a Letter of Credit Request accompanied by
such other documents, certificates, documents and papers as the Issuing Lender
may reasonably request. Letter of Credit Requests may be delivered by
facsimile transmission.
Promptly after the issuance or amendment of a Letter of Credit (in any event
upon satisfaction or waiver of the conditions precedent set forth in Section
5.2 or 5.3, as applicable), the Issuing Lender shall notify the Borrower and
the Administrative Agent, in writing, of such issuance or amendment and such
notice shall be accompanied by a copy of such issuance or amendment. Upon
receipt of such notice, the Administrative Agent shall promptly notify the
Revolving Credit Lenders in writing of such issuance or amendment and if so
requested by any such Lender the Administrative Agent shall furnish such
Lender with a copy of such issuance or amendment. Notwithstanding the
foregoing, the Issuing Lender shall not be obligated to make any Letters of
Credit available to the Borrower at a time when a Lender Default exists unless
the Issuing Lender has entered into arrangements satisfactory to it to
eliminate the Issuing Lender's risk with respect to the Defaulting Lender's or
Lenders' participation in such Letters of Credit.
3.3 Fees and Other Charges. (a) The Borrower shall pay a fee
on the aggregate drawable amount of each outstanding Letter of Credit at a per
annum rate equal to the Applicable Margin then in effect with respect to
Eurodollar Loans under the Revolving Credit Facility, shared ratably among the
Revolving Credit Lenders and payable quarterly in arrears on each L/C Fee
Payment Date after the issuance date of such Letter of Credit; provided,
however, that any such fee accrued with respect to any Defaulting Lender
during the period prior to the time such Lender became a Defaulting Lender and
unpaid at such time shall not be payable by the Borrower so long as such
Lender shall be a Defaulting Lender except to the extent that such fee shall
otherwise have been due and payable by such Borrower prior to such time; and
provided further that no such fee shall accrue for the benefit of a Defaulting
Lender so long as such Lender shall be a Defaulting Lender. In addition, the
Borrower shall pay to the Issuing Lender for its own account a fronting fee
equal to 1/4 of 1% per annum on the aggregate drawable amount of each
outstanding Letter of Credit (but in any event not less than $500.00 per annum
per Letter of Credit), payable quarterly in arrears on each L/C Fee Payment
Date after the issuance date of such Letter of Credit.
(b) In addition to the foregoing fees, the Borrower shall
pay or reimburse the Issuing Lender for such normal and customary costs and
expenses as are incurred or customarily charged by the Issuing Lender in
issuing, negotiating, effecting payment under, amending or otherwise
administering any Letter of Credit.
3.4 L/C Participations. (a) The Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases
from the Issuing Lender, on the terms and conditions hereinafter stated, for
such L/C Participant's own account and risk an undivided interest equal to
such L/C Participant's Revolving Credit Percentage in the Issuing Lender's
obligations and rights under each Letter of Credit issued hereunder and the
amount of each draft paid by the Issuing Lender thereunder. Each L/C
Participant unconditionally and irrevocably agrees with the Issuing Lender
that, if a draft is paid under any Letter of Credit for which the Issuing
Lender is not reimbursed in full by the Borrower in accordance with the terms
of this Agreement, such L/C Participant shall pay to the Issuing Lender,
regardless of the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the other conditions specified in
Section 5, upon demand, at the Issuing Lender's address for notices specified
herein an amount equal to such L/C Participant's Revolving Credit Percentage
of the amount of such draft, or any part thereof, that is not so reimbursed.
Each L/C Participant acknowledges and agrees that its obligation to acquire
participations and make payments pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit, the occurrence and continuance of a Default or Event of
Default, the reduction or termination of the Commitments, any adverse change
in the condition (financial or otherwise) of the Borrower or any other Person
or any breach of this Agreement or any other Loan Document by the Borrower or
any other Person (including, without limitation, any other Revolving Credit
Lender), and each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(b) If any amount required to be paid by any L/C Participant
to the Issuing Lender pursuant to Section 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any
Letter of Credit is paid to the Issuing Lender within three Business Days
after the date such payment is due, such L/C Participant shall pay to the
Issuing Lender on demand an amount equal to the product of (i) such amount,
times (ii) the daily average Federal Funds Effective Rate during the period
from and including the date such payment is required to the date on which such
payment is immediately available to the Issuing Lender, times (iii) a fraction
the numerator of which is the number of days that elapse during such period
and the denominator of which is 360. If any such amount required to be paid by
any L/C Participant pursuant to Section 3.4(a) is not made available to the
Issuing Lender by such L/C Participant within three Business Days after the
date such payment is due, the Issuing Lender shall be entitled to recover from
such L/C Participant, on demand, such amount with interest thereon calculated
from such due date at the rate per annum applicable to Base Rate Loans under
the Revolving Credit Facility. A certificate of the Issuing Lender submitted
to any L/C Participant with respect to any amounts owing under this Section
shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant
its pro rata share of such payment in accordance with Section 3.4(a), the
Issuing Lender receives any payment related to such Letter of Credit (whether
directly from the Borrower or otherwise, including proceeds of collateral
applied thereto by the Issuing Lender), or any payment of interest on account
thereof, the Issuing Lender will distribute to such L/C Participant its pro
rata share thereof; provided, however, that in the event that any such payment
received by the Issuing Lender shall be required to be returned by the Issuing
Lender, such L/C Participant shall return to the Issuing Lender the portion
thereof previously distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. If any draft
or other form of demand shall be presented for payment under any Letter of
Credit, the Issuing Lender shall promptly notify the Borrower of the date and
amount thereof. The Borrower agrees to reimburse the Issuing Lender within one
Business Day of the date on which the Issuing Lender notifies the Borrower and
the Administrative Agent of the date and amount of a draft presented under any
Letter of Credit and paid by the Issuing Lender for the amount of (a) such
draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by the Issuing Lender in connection with such payment (the amounts
described in the foregoing subsections (a) and (b) in respect of any drawing,
collectively, the "Payment Amount"). Each such payment shall be made to the
Administrative Agent at the Payment Office, for the account of the Issuing
Lender, in Dollars and in immediately available funds. The Administrative
Agent shall distribute such payments to the Issuing Lender promptly upon
receipt at its address for notices specified herein in like funds as received.
Interest shall be payable on each Payment Amount from the date of the
applicable drawing until payment in full at the rate set forth in (i) until
the first Business Day following the date notice of the applicable drawing is
received by the Borrower from the Issuing Lender, Section 2.15(b) with respect
to Base Rate Loans and (ii) thereafter, Section 2.15(c). Each drawing under
any Letter of Credit shall (unless an event of the type described in
subsection (i) or (ii) of Section 8(f) shall have occurred and be continuing
with respect to the Borrower, in which case the procedures specified in
Section 3.4 for funding by L/C Participants shall apply) constitute a request
by the Borrower to the Administrative Agent for a borrowing of Revolving
Credit Loans that are Base Rate Loans (or, at the option of the Administrative
Agent and the Swing Line Lender in their sole discretion, a borrowing pursuant
to Section 2.7 of Swing Line Loans) in the amount of such drawing. The
Borrowing Date with respect to such borrowing shall be the first date on which
the conditions set forth in Section 5.3 (other than Section 5.3(a)) are
satisfied (or, if applicable, Swing Line Loans to the extent Swing Line Loans
are then available) after such drawing under such Letter of Credit.
3.6 Responsibility of Issuing Lender With Respect to
Requests for Drawings and Payments; Obligations Absolute. (a) In determining
whether to honor any drawing under any Letter of Credit by the beneficiary
thereof, the Issuing Lender shall be responsible only to examine the documents
delivered under such Letter of Credit with reasonable care so as to ascertain
whether they appear on their face to be in accordance with the terms and
conditions of such Letter of Credit. As between the Borrower and the Issuing
Lender, the Borrower assumes all risks of the acts and omissions of, or misuse
of the Letters of Credit issued by the Issuing Lender, by the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation
of the foregoing, the Issuing Lender shall not be responsible for: (i) the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of any such Letter of Credit, even if it should in fact prove to be
in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any such Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason; (iii) failure of the
beneficiary of any such Letter of Credit to comply fully with any conditions
required in order to draw upon such Letter of Credit; (iv) errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex or otherwise, whether or not they be in cipher; (v)
errors in interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of the Issuing Lender, including any act or
omission of any present or future Governmental Authority; none of the above
shall affect or impair, or prevent the vesting of, any the Issuing Lender's
rights or powers hereunder. Without limiting the foregoing and in furtherance
thereof, any action taken or omitted by the Issuing Lender under or in
connection with the Letters of Credit or any documents and certificates
delivered thereunder, if taken or omitted (subject to the next sentence) in
good faith, shall not give rise to any liability on the part of the Issuing
Lender to the Borrower. Notwithstanding anything to the contrary contained in
this Section 3.6(a), the Borrower shall retain any and all rights it may have
against the Issuing Lender for any liability arising solely out of the gross
negligence or willful misconduct of the Issuing Lender.
(b) The obligation of the Borrower to reimburse the Issuing
Lender for drawings honored under the Letters of Credit issued by it and to
repay any Revolving Credit Loans made by Lenders pursuant to this Section 3
and the obligations of Lenders under Section 3.4 shall be unconditional and
irrevocable and shall be performed strictly in accordance with the terms
hereof under all circumstances including any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit; (ii) the
existence of any claim, set-off, defense or other right which the Borrower or
any Lender may have at any time against a beneficiary or any transferee of any
Letter of Credit (or any Persons for whom any such transferee may be acting),
the Issuing Lender, Lender or any other Person or, in the case of a Lender,
against the Borrower, whether in connection herewith, the transactions
contemplated herein or any unrelated transaction (including any underlying
transaction between the Borrower or one of its Subsidiaries and the
beneficiary for which any Letter of Credit was procured); (iii) any draft or
other document presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; (iv) payment by the Issuing Lender
under any Letter of Credit against presentation of a draft or other document
which does not substantially comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations, properties, assets,
condition (financial or otherwise) or prospects of any Loan Party; (vi) any
breach hereof or any other Loan Document by any party thereto; (vii) any other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing; or (viii) the fact that an Event of Default or a Default shall have
occurred and be continuing; provided, in each case, that any action taken by
the Issuing Lender with respect to the applicable Letter of Credit shall not
have constituted gross negligence or willful misconduct of the Issuing Lender.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Arrangers, the Agents, the Managers and the
Lenders to enter into this Agreement and to make the Loans and issue or
participate in the Letters of Credit, the Borrower hereby represents and
warrants to each Arranger, each Agent, each Manager and each Lender that the
following statements are true and correct (provided that (a) with respect to
Sections 4.25(h) and 4.26, such representations and warranties shall not be
made until (i) as they relate to the Phase I Project, on and after the Phase I
Opening Date and (ii) as they relate to the Phase II Project, on and after the
Phase II Opening Date and (b) representations and warranties made with respect
to the Completion Guarantor shall only be made until the Last Project Final
Completion Date):
4.1 Financial Condition. The audited consolidated balance
sheets of the Borrower and its consolidated Subsidiaries as at December 31,
2003, and the related consolidated statements of income and of cash flows for
the Fiscal Year ended on such date, reported on by and accompanied by an
unqualified report from Deloitte & Touche LLP, present fairly in all material
respects the consolidated financial condition of the Borrower and its
consolidated Subsidiaries as at such date, and the consolidated results of its
operations and its consolidated cash flows for such Fiscal Year. The unaudited
consolidated balance sheets of the Borrower and its consolidated Subsidiaries
as at September 30, 2004, and the related unaudited consolidated statements of
income and cash flows for the 9-month period ended on such date, present
fairly in all material respects the consolidated financial condition of the
Borrower and its consolidated Subsidiaries as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
9-month period then ended (subject to normal year-end audit adjustments). All
such financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by the aforementioned firm of accountants
and disclosed therein and except with respect to interim financials, normal
year-end audit adjustments). As of the Closing Date, the Borrower and its
Subsidiaries do not have any material Guarantee Obligations, contingent
liabilities and liabilities for taxes, or any long-term leases or unusual
forward or long-term commitments, including, without limitation, any interest
rate or foreign currency swap or exchange transaction or other obligation in
respect of derivatives, that are not reflected in the most recent financial
statements referred to in this paragraph.
4.2 No Change. Since December 31, 2003, there have been no
developments or events that, individually or collectively, have had or could
reasonably be expected to have a Material Adverse Effect.
4.3 Corporate/LLC Existence; Compliance with Law. Each of
the Loan Parties, Wynn Resorts Holdings and the Completion Guarantor (a) is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the corporate or limited liability
company power and authority, and the legal right, to own and operate its
Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation or limited liability company and in good standing under the laws
of each jurisdiction where its ownership, lease or operation of Property or
the conduct of its business requires such qualification, except to the extent
the failure to be so qualified or in good standing could not reasonably be
expected to have a Material Adverse Effect and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
4.4 Power; Authorization; Enforceable Obligations. Each Loan
Party, Wynn Resorts Holdings and the Completion Guarantor has the corporate or
limited liability company power, as the case may be, and authority, and the
legal right, to execute, deliver and perform the Loan Documents, the Financing
Agreements and the Material Contracts to which it is a party and to carry out
the transactions contemplated thereby and, in the case of the Borrower, to
borrow hereunder. Each Loan Party, Wynn Resorts Holdings and the Completion
Guarantor has taken all necessary corporate or limited liability company
action, as the case may be, to authorize the execution, delivery and
performance of the Loan Documents, the Financing Agreements and the Material
Contracts to which it is a party and, in the case of the Borrower and Capital
Corp., to authorize the borrowings and issuances of Indebtedness on the terms
and conditions of this Agreement. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
Person (other than a Loan Party) is required to be obtained, made or taken by
a Loan Party in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement
or any of the Loan Documents, except (i) consents, authorizations, filings and
notices described in Schedule 4.4, which consents, authorizations, filings and
notices have, unless otherwise indicated on Schedule 4.4, been obtained or
made (or waived) and are in full force and effect and (ii) the filings and
actions referred to in Section 4.19. Each Loan Document, Financing Agreement
and Material Contract has been duly executed and delivered on behalf of the
Completion Guarantor, Wynn Resorts Holdings and each Loan Party party thereto.
This Agreement constitutes, and each other Loan Document, Financing Agreement
and Material Contract upon execution will constitute, a legal, valid and
binding obligation of the Completion Guarantor, Wynn Resorts Holdings and each
Loan Party party thereto, enforceable against the Completion Guarantor, Wynn
Resorts Holdings and each Loan Party party thereto in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of
this Agreement, the other Loan Documents, the Financing Agreements and the
Material Contracts, the issuance of Letters of Credit, the borrowings
hereunder and the use of the proceeds thereof will not violate any Requirement
of Law or any Contractual Obligation of the Completion Guarantor, Wynn Resorts
Holdings or any Loan Party (except, in the case of the Material Contracts, to
the extent that any such violations (individually or in the aggregate) could
not reasonably be expected to have a Material Adverse Effect) and will not
result in, or require, the creation or imposition of any Lien on any of their
respective Properties or revenues pursuant to any Requirement of Law or any
such Contractual Obligation (other than the Liens created by the Security
Documents, the other First Lien Security Documents and the Second Lien
Security Documents). No Requirement of Law or Contractual Obligation
applicable to the Completion Guarantor, Wynn Resorts Holdings or any Loan
Party could, individually or collectively, reasonably be expected to have a
Material Adverse Effect. Other than amounts that have been paid in full, no
fees or taxes, including without limitation stamp, transaction, registration
or similar taxes, are required to be paid by the Loan Parties for the
legality, validity, or enforceability of any Financing Agreements and, except
to the extent that the failure to so pay any such fees or taxes could not
(individually or in the aggregate) reasonably be expected to have a Material
Adverse Effect, any Material Contracts.
4.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending
or, to the knowledge of the Borrower, threatened by or against any Major
Project Participant, the Completion Guarantor, Wynn Resorts Holdings or any
Loan Party or against any of their respective properties or revenues (a) with
respect to any of the Financing Agreements or any of the transactions
contemplated hereby or thereby or (b) that, individually or collectively,
could reasonably be expected to have a Material Adverse Effect.
4.7 No Default. Neither the Completion Guarantor, Wynn
Resorts Holdings nor any Loan Party is in default under or with respect to any
of its Contractual Obligations in any respect that, individually or
collectively, could reasonably be expected to have a Material Adverse Effect.
No Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of the Loan Parties
is the sole owner of, legally and beneficially, and has good, marketable and
insurable title to, or has a valid leasehold interest in, all its Real Estate,
and good title to, a valid leasehold interest in or a valid right to use, all
its other material Property, and none of such Property is subject to any
claims, liabilities, obligations, charges or restrictions of any kind, nature
or description (other than claims, liabilities, obligations, charges or
restrictions that individually or in the aggregate could not reasonably be
expected to materially interfere with the Loan Parties' intended use of such
Property) or to any Lien except for Permitted Liens. None of the Pledged Stock
is subject to any Lien except for Permitted Liens.
4.9 Intellectual Property. (a) Each Loan Party owns, or is
licensed or otherwise has the right to use, all Intellectual Property that is
material to the conduct of its business as currently conducted. No claim has
been asserted or is pending by any Person challenging the use of any such
Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does the Borrower know of any valid basis for any
such claim, except (i) with respect to the Intellectual Property related to or
otherwise associated with the Loan Parties' use of the "Wynn" name, such
claims that, if determined adversely to a Loan Party, could not reasonably be
expected to have a material adverse effect on such Loan Party's ability to use
the "Wynn" name in its Permitted Business as currently used or contemplated to
be used and (ii) with respect to all other Intellectual Property, as could
not, individually or collectively, reasonably be expected to have a Material
Adverse Effect. The use by each Loan Party of the Intellectual Property
related to or otherwise associated with such Loan Party's use of the "Wynn"
name does not infringe on the rights of any Person, which infringement could
reasonably be expected to have a material adverse effect on such Loan Party's
ability to use the "Wynn" name in its Permitted Business as currently used or
contemplated to be used. The use by each Loan Party of Intellectual Property
other than Intellectual Property related to or otherwise associated with such
Loan Party's use of the "Wynn" name, does not infringe on the rights of any
Person, which infringement, individually or collectively, could reasonably be
expected to have a Material Adverse Effect.
(b) As of the Closing Date, Schedule 4.9(b) (i) identifies
each of the trademarks, service marks and trade name applications and
registrations currently applied for or registered by, directly or indirectly,
each of the Loan Parties and identifies which such Person applied for or
registered such Intellectual Property and (ii) specifies as to each, the
jurisdiction in which such Intellectual Property has been issued or registered
(or, if applicable, in which an application for such issuance or registration
has been filed), including the respective registration or application numbers
and applicable dates of registration or application and expiration.
(c) As of the Closing Date, Schedule 4.9(c) (i) identifies
each of the material patents and patent applications currently applied for or
owned by, directly or indirectly, each of the Loan Parties and identifies
which such Person applied for or owns such Intellectual Property and (ii)
specifies as to each, the jurisdiction in which such Intellectual Property has
been issued or registered (or, if applicable, in which an application for such
issuance or registration has been filed), including the respective patent or
application numbers and applicable dates of issuance or application and
expiration.
(d) As of the Closing Date, Schedule 4.9(d) (i) identifies
each of the material copyrights and copyright applications and registrations
currently applied for or registered by, directly or indirectly, by each of the
Loan Parties and identifies which such Person applied for or registered such
Intellectual Property and (ii) specifies as to each, the jurisdiction in which
such Intellectual Property has been issued or registered (or, if applicable,
in which an application for such issuance or registration has been filed),
including the respective registration or application numbers and applicable
dates of registration or application and expiration.
(e) As of the Closing Date, Schedule 4.9(e) (i) identifies,
each of the material trade secrets currently owned or claimed, directly or
indirectly, by each of the Loan Parties and identifies which such Person owns
or claims such Intellectual Property and (ii) specifies as to each, the
jurisdiction in which such Intellectual Property exists.
(f) As of the Closing Date, Schedule 4.9(f) identifies all
licenses, sublicenses and other agreements relating to Intellectual Property
to which any of the Loan Parties is a party that are material to the conduct
of such Loan Party's Permitted Business and pursuant to which (i) any of the
Loan Parties is a licensor, sub-licensor, licensee or sub-licensee or the
equivalent or (ii) any other Person is authorized to use any Intellectual
Property as a licensee, sub-licensee or the equivalent.
4.10 Taxes. (a) Each of the Completion Guarantor, Wynn
Resorts Holdings and the Loan Parties has filed, or caused to be filed, all
federal and state income tax and informational returns that are required to
have been filed by it in any jurisdiction, and all such tax and informational
returns are correct and complete in all material respects. Each of the
Completion Guarantor, Wynn Resorts Holdings and the Loan Parties has paid all
taxes shown to be due and payable on such returns and all other material taxes
and assessments payable by it, to the extent the same have become due and
payable (other than (x) those taxes that it is contesting in good faith and by
appropriate proceedings and (y) taxes that are not yet due, with respect to
each of which it has established reserves that are adequate for the payment
thereof and as are required by GAAP).
(b) There are no Liens for Taxes on any of the Properties of
the Completion Guarantor or any of the Loan Parties other than Liens permitted
pursuant to Section 7.3(a).
4.11 Federal Regulations. Neither Wynn Resorts Holdings, the
Borrower nor any of its Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
"purchasing" or "carrying" any "margin stock" (in each case within the meaning
of Regulation U). No part of the proceeds of the Loans made or Letters of
Credit issued hereunder will be used to purchase or carry any such margin
stock or to extend credit to others for the purpose of purchasing or carrying
any such margin stock or for any purpose that violates the provisions of
Regulation T, Regulation U or Regulation X.
4.12 Labor Matters and Acts of God. (a) There are no
strikes, stoppages, slowdowns or other labor disputes pending against any of
the Loan Parties or, to the knowledge of the Borrower, pending against any
Major Project Participant or threatened against any Loan Party or Major
Project Participant that (individually or in the aggregate) could reasonably
be expected to have a Material Adverse Effect. Hours worked by and payment
made to employees of the Loan Parties are not in violation of the Fair Labor
Standards Act or any other applicable Requirement of Law dealing with such
matters that (individually or in the aggregate) could reasonably be expected
to have a Material Adverse Effect.
(b) Neither the business nor the Properties of any Loan
Party, nor, to the knowledge of the Borrower, any Major Project Participant is
affected by any fire, explosion, accident, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy, or other casualty or event of
force majeure, that could reasonably be expected to have a Material Adverse
Effect.
4.13 ERISA. Except in each case as could not reasonably be
expected to result in a material liability to the Loan Parties, (a) neither a
Reportable Event nor an "accumulated funding deficiency" (within the meaning
of Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all
material respects with all applicable provisions of ERISA and the Code, (b) no
termination of a Single Employer Plan has occurred, and no Lien in favor of
the PBGC or a Plan has arisen, during such five-year period, (c) the actuarial
present value of all benefit liabilities under each Single Employer Plan
(based on those assumptions that would be used to determine whether each such
Single Employer Plan could be terminated in a standard termination under
Section 4041(b) of ERISA) did not, as of the last annual valuation date prior
to the date on which this representation is made or deemed made, exceed the
value of the assets of such Plan allocable to such accrued benefits, (d)
neither the Borrower, any other Loan Party nor any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan and
neither the Borrower, any other Loan Party nor any Commonly Controlled Entity
would become subject to any material liability under ERISA if any such Person
were to withdraw completely from all Multiemployer Plans as of the most recent
valuation date for which each such Multiemployer Plan has furnished data
regarding potential withdrawal liability to the applicable Loan Party and (e)
as of the Closing Date, no such Multiemployer Plan is in Reorganization or
Insolvent.
4.14 Investment Company Act; Other Regulations. Neither the
Completion Guarantor, Wynn Resorts Holdings nor any Loan Party is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, or the Interstate Commerce Act or registration under the Investment
Company Act of 1940 or under any other federal or state statute or regulation
which may limit its ability to incur Indebtedness other than the Nevada Gaming
Laws or which may otherwise render all or any portion of the Obligations
unenforceable. Incurrence of the Obligations by the Completion Guarantor, Wynn
Resorts Holdings and the Loan Parties under the Loan Documents complies with
all applicable provisions of the Nevada Gaming Laws, subject to any
informational filings or reports required by Nevada Gaming Commission
Regulation Section 8.130 and subject to the receipt of requisite approvals
from the Nevada Gaming Authorities relating to the pledges of Capital Stock of
the Loan Parties that are licensed or registered by the Nevada Gaming
Authorities, which approvals shall be sought diligently and in good faith by
the Borrower prior to the Phase I Opening Date, when the gaming license with
respect to the Project is applied for by the Borrower.
4.15 Subsidiaries. (a) The Persons listed on Schedule 4.15
constitute all the Subsidiaries of the Borrower as of the Closing Date.
Schedule 4.15 sets forth as of the Closing Date, the name and jurisdiction of
formation of each Subsidiary of the Borrower and, as to each such Subsidiary,
the percentage and number of each class of Capital Stock owned by the
Borrower. Each such Subsidiary is a Wholly Owned Subsidiary of the Borrower.
(b) There are no outstanding subscriptions, options,
warrants, calls, rights or other agreements or commitments (other than stock
options granted to employees, officers or directors and directors' qualifying
shares) of any nature relating to any Capital Stock of the Borrower or any
Subsidiary of the Borrower. Neither the Borrower nor any of its Subsidiaries
have issued, or authorized the issuance of, any Disqualified Stock.
(c) Neither the Borrower nor any of its Subsidiaries are
engaged in any businesses other than the Permitted Businesses.
4.16 Use of Proceeds; Letters of Credit. Subject to the
terms of the Disbursement Agreement and this Agreement, the proceeds of the
extension of credit under this Agreement shall be used (a) for the payment of
transaction costs, fees and expenses incurred in connection with this
Agreement and the transactions contemplated hereby, (b) to pay Project Costs,
(c) to make the Macau Loan and (d) for working capital and general corporate
purposes.
4.17 Environmental Matters. (a) To the knowledge of the
Borrower, the Loan Parties: (i) are, and within the period of all applicable
statutes of limitation have been, in compliance with all applicable
Environmental Laws; and (ii) reasonably believe that compliance with all
applicable Environmental Laws that is or is reasonably expected to become
applicable to any of them will be timely attained and maintained except, in
each case, to the extent any violation could not reasonably be expected to
result in any material liability to the Loan Parties or their Properties or in
an inability of the Loan Parties to perform their respective obligations in
any material respect under the Operative Documents.
(b) To the knowledge of the Borrower, Hazardous Substances
are not present at, on, under, in, or about any real property now or formerly
owned, leased or operated by any of the Loan Parties, or at any other location
(including, without limitation, any location to which Hazardous Substances
have been sent for re-use or recycling or for treatment, storage, or disposal)
which could, individually or collectively, reasonably be expected to (i) give
rise to liability of any of the Loan Parties under any applicable
Environmental Law or otherwise result in costs to any of the Loan Parties
that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, or (ii) materially interfere with any of the Loan
Parties' continued operations, or (iii) materially impair the fair saleable
value of any real property owned or leased by any of the Loan Parties.
(c) Except as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, there is no
judicial, administrative, or arbitral proceeding (including any notice of
violation or alleged violation) under or relating to any Environmental Law
(including, without limitation, any Environmental Claims) to which any of the
Loan Parties is, or to the knowledge of the Borrower will be, named as a party
that is pending or, to the knowledge of the Borrower, threatened.
(d) Except as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, no Loan Party has
received any written request for information, or been notified that it is a
potentially responsible party, under or relating to the federal Comprehensive
Environmental Response, Compensation, and Liability Act or any similar
Environmental Law.
(e) Except as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, no Loan Party has
entered into or agreed to any consent decree, order, or settlement or other
agreement, or is subject to any judgment, decree, or order or other agreement,
in any judicial, administrative, arbitral, or other forum for dispute
resolution, relating to compliance with or liability under any Environmental
Law or Environmental Claim.
(f) Except as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, no Loan Party has
assumed or retained, by contract or operation of law, any liabilities of any
kind, fixed or contingent, known or unknown, under any Environmental Law or
with respect to any Hazardous Substances.
(g) Except as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, (i) Hazardous
Materials Activities are not presently occurring, and have not previously
occurred, at, on, under, in, or about any Real Estate now or formerly owned,
leased or operated by any of the Loan Parties and (ii) none of the Loan
Parties have ever engaged in any Hazardous Materials Activities at any
location.
4.18 Accuracy of Information, etc. No statement or
information contained in this Agreement, any other Loan Document, the
Confidential Information Memorandum or any other document, certificate or
statement furnished, in each case in writing and other than projections,
estimates and other forward-looking information, to the Arrangers, the Agents,
the Managers or the Lenders or any of them, by or on behalf of any Loan Party
for use in connection with the transactions contemplated by this Agreement or
the other Loan Documents, taken as a whole, contained as of the date such
statement, information, document or certificate was so furnished (or, in the
case of the Confidential Information Memorandum, as of the date of this
Agreement), any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained herein or
therein not misleading in light of the circumstances in which such statements
were made. The projections, estimates and other forward-looking information
and pro forma financial information contained in the materials referenced
above (including, without limitation, the Projections) are based upon good
faith estimates and assumptions believed by management of the Borrower to be
reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as
fact, that no assurance is given that the results forecasted in such financial
information will be achieved and that actual results during the period or
periods covered by such financial information are subject to significant
uncertainties (many of which are not in the control of the Loan Parties) and
may differ from the projected results set forth therein by a material amount.
4.19 Security Documents. (a) The Security Agreement is
effective to create in favor of the Collateral Agent, for the benefit of the
Secured Parties, a legal, valid and binding security interest in the
Collateral described therein and proceeds and products thereof. In the case of
the certificated Pledged Stock, when any stock or membership certificates
representing such certificated Pledged Stock are delivered to the Collateral
Agent with a corresponding endorsement, and in the case of the other
Collateral described in the Security Agreement (other than Intellectual
Property Collateral arising under foreign laws which have not been identified
by the Loan Parties as material to their Permitted Businesses and have not
been set forth on Schedule 6 of the Security Agreement), when financing
statements in appropriate form are filed in the offices specified on Schedule
4.19(a)-1 and such other filings and actions as are specified on Schedule 3 to
the Security Agreement are made and taken, the Security Agreement shall
constitute a fully perfected Lien (to the extent such Lien can be perfected by
filing or possession and, with respect to such other Collateral, such Lien
shall be perfected only to the extent perfection is required by the Security
Agreement) on, and security interest in, all right, title and interest of Wynn
Resorts Holdings and the Loan Parties in such Collateral and the proceeds and
products thereof, as security for the Obligations, in each case subject only
to Permitted Liens and prior and superior in right to any other Lien (except
Senior Permitted Liens). Schedule 4.19(a)-2 lists as of the Closing Date each
UCC Financing Statement that names Wynn Resorts Holdings or any Loan Party as
debtor and will remain on file after the Closing Date.
(b) Each of the Mortgages is effective to create in favor of
the Collateral Agent, for the benefit of the Secured Parties, a legal, valid
and binding Lien on, and security interest in, the Mortgaged Properties
described therein and proceeds and products thereof, and when the Mortgages
and related fixture filings are filed in the offices specified on Schedule
4.19(b), each such Mortgage shall constitute a fully perfected Lien on, and
security interest in, all of the Mortgaged Properties and the proceeds and
products thereof, as security for the Obligations, in each case subject only
to Permitted Liens and prior and superior in right to any other Lien (except
Senior Permitted Liens).
(c) The Intellectual Property Security Agreements are
effective to create in favor of the Collateral Agent, for the benefit of the
Secured Parties, a legal, valid and binding security interest in the
Intellectual Property Collateral described therein and proceeds and products
thereof. With respect to domestic Intellectual Property Collateral, upon (i)
the filing and recordation of the Intellectual Property Security Agreements in
the appropriate indexes of the United States Patent and Trademark Office
relative to patents and trademarks (within three (3) months after the Closing
Date), and the United States Copyright Office relative to copyrights (within
thirty (30) days after the Closing Date), together with payment of all
requisite fees and (ii) the filing of financing statements in appropriate form
for filing in the offices specified on Schedule 4.19(c) (which financing
statements have been duly completed and filed by the Collateral Agent in
accordance with applicable Requirements of Law) the Intellectual Property
Security Agreements shall constitute a perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in the
Intellectual Property Collateral and the proceeds and products thereof, as
security for the Obligations, in each case subject only to Permitted Liens and
prior and superior in right to any other Lien (except Senior Permitted Liens).
(d) The Control Agreements are effective to create in favor
of the Collateral Agent, for the benefit of the Secured Parties, a legal,
valid and binding security interest in the Accounts described therein and
proceeds and products thereof. Upon the execution of the Control Agreements,
the Control Agreements shall constitute perfected Liens on, and security
interests in, all right, title and interest of the Loan Parties in the
Accounts and the proceeds and products thereof, as security for the
Obligations, in each case subject only to Permitted Liens and prior and
superior in right to any other Lien (except Senior Permitted Liens).
4.20 Solvency. The Loan Parties taken as a whole, each
significant Loan Party and the Completion Guarantor are, and immediately after
giving effect to (a) the incurrence of all Indebtedness, (b) the use of the
proceeds of such Indebtedness (including, without limitation, the use of
proceeds of the extensions of credit made by the Lenders hereunder) and (c)
obligations being incurred in connection with the Operative Documents, will be
Solvent.
4.21 Senior Indebtedness. The Obligations (including,
without limitation, the guarantee obligations of each Guarantor under the Loan
Documents) constitute senior secured debt of each of the Loan Parties and
"Permitted Debt" under and as defined in the 2014 Notes Indenture. The 2014
Notes, when issued and paid for, will be the legal, valid and binding
obligations of the Borrower and Capital Corp., enforceable against the
Borrower and Capital Corp. in accordance with their terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability. The issuance and sale of the 2014 Notes by
Borrower and Capital Corp. did not violate any applicable federal or state
securities laws.
4.22 Regulation H. No Mortgage encumbers improved real
property which is located in an area that has been identified by the Secretary
of Housing and Urban Development as an area having special flood hazards and
in which flood insurance has been made available under the National Flood
Insurance Act of 1968.
4.23 Insurance. Each of the Loan Parties is insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which it
is engaged and in any event in accordance with Section 6.5. None of the Loan
Parties has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers at a cost that could not reasonably be
expected to have a Material Adverse Effect (other than as a result of general
market conditions).
4.24 Performance of Agreements; Material Contracts. No Loan
Party is in default in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in any of its Contractual
Obligations, and no condition exists that, with the giving of notice or the
lapse of time or both, would constitute such a default, in each case, except
where the consequences of such default or defaults, if any, could not
reasonably be expected to have a Material Adverse Effect. Schedule 4.24
contains a true, correct and complete list of the Material Contracts in effect
on the Closing Date.
4.25 Real Estate.
(a) As of the Closing Date, Schedule 4.25(a) sets forth a
true, complete and correct list of all Real Estate, including a brief
description thereof, including, in the case of leases, the street address,
landlord name, tenant name, current rent amount, lease date and lease
expiration date. The Borrower has delivered to the Administrative Agent true,
complete and correct copies of all such leases.
(b) All Real Estate and the current use thereof complies
with all applicable Requirements of Law (including building and zoning
ordinances and codes) and with all Insurance Requirements, and none of the
Loan Parties are non-conforming users of such Real Estate, except where
noncompliance or such non-conforming use could not, individually or
collectively, reasonably be expected to have a Material Adverse Effect.
(c) No Taking has been commenced or, to the Borrower's
knowledge, is contemplated with respect to all or any portion of any Real
Estate or for the relocation of roadways providing access to such Real Estate
except, in each case, as could not, individually or collectively, reasonably
be expected to have a Material Adverse Effect.
(d) Except for those disclosed in the Title Policies or as
set forth on Schedule 4.25(d), as of the Closing Date there are no current,
pending or, to the knowledge of the Borrower, proposed special or other
assessments (other than for ad valorem taxes) for public improvements or
otherwise affecting any Real Estate, nor are there any contemplated
improvements to such Real Estate that may result in such special or other
assessments. There are no current, pending or, to the knowledge of the
Borrower, proposed special or other assessments for public improvements or
otherwise affecting any Real Estate, nor are there any contemplated
improvements to such Real Estate that may result in such special or other
assessments, in any case that could reasonably be expected to result in a
material liability to any Loan Party.
(e) None of the Loan Parties has suffered, permitted or
initiated the joint assessment of any Real Estate with any other real property
constituting a separate tax lot. The Mortgaged Properties have been properly
subdivided or entitled to exception therefrom, and for all purposes the
Mortgaged Properties may be mortgaged, conveyed and, other than those with
respect to leasehold interests, otherwise dealt with as separate legal lots or
parcels.
(f) The use being made of all Real Estate is in conformity
with the certificate of occupancy and/or such other Permits for such Real
Estate and any other reciprocal easement agreements, restrictions, covenants
or conditions affecting such Real Estate except, in each case, to the extent
such non-conformity could not reasonably be expected to have a Material
Adverse Effect.
(g) There are no outstanding options to purchase or rights
of first refusal or restrictions on transferability affecting any Real Estate
(other than those set forth in or otherwise permitted under the Loan
Documents, including, without limitation, Permitted Liens).
(h) All Real Estate has or is expected to have adequate
rights of access to public ways and is or is expected to be served by
installed, operating and adequate water, electric, gas, telephone, sewer,
sanitary sewer and storm drain facilities, in each case as necessary to permit
the Real Estate to be used for its intended purposes. All roads necessary for
the utilization of the Real Estate for its current purpose have been or are
expected to be completed and dedicated to public use and accepted by all
Governmental Authorities or are the subject of access easements for the
benefit of such Real Estate.
(i) Except as could not, individually or collectively,
reasonably be expected to have a Material Adverse Effect, no building or
structure constituting Real Estate or any appurtenance thereto or equipment
thereon, or the use, operation or maintenance thereof, violates any
restrictive covenant affecting such Real Estate or encroaches on any easement
or on any property owned by others.
(j) Since the Closing Date, no portion of the Real Estate
has suffered any material damage by fire or other casualty loss that has not
heretofore been repaired and restored or is in the process of being repaired
and restored in accordance with Section 2.24.
4.26 Permits. Other than exceptions to any of the following
that could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect: (a) each of the Loan Parties has obtained and
holds all Permits required as of the date this representation is deemed made
in respect of all Real Estate and for any other Property otherwise then
currently operated by or on behalf of, or for the benefit of, such Person and
for the operation of its then current Permitted Businesses, (b) all such
Permits are in full force and effect, and each of the Loan Parties has
performed and observed all requirements of such Permits (to the extent
required to be performed by the date this representation is deemed made), (c)
no event has occurred which allows or results in, or after notice or lapse of
time would allow or result in, revocation, modification, suspension or
termination by the issuer thereof or in any other impairment of the rights of
the holder of any such Permit, (d) no such Permits, other than Permits
required by the Nevada Gaming Authorities, contain any restrictions, either
individually or in the aggregate, that are materially burdensome to any of the
Loan Parties, or to the operation of its Permitted Business or any Property
owned, leased or otherwise operated by such Person, (e) the Borrower has no
knowledge that any Governmental Authority is considering limiting, modifying,
suspending, revoking or renewing on burdensome terms any such Permit and (f)
each of the Loan Parties reasonably believes that each such Permit will be
timely renewed and complied with, without unreasonable expense or delay, and
that any such Permit not required to have been obtained by the date this
representation is deemed made that may be required of such Person is of a type
that is routinely granted on application and compliance with the conditions of
issuance (such conditions being ministerial or of a type satisfied in the
ordinary course of business, without undue expense or delay) and will be
timely obtained and complied with, without undue expense or delay.
4.27 Sufficiency of Interests. Other than those services to
be performed and materials to be supplied that can be reasonably expected to
be commercially available when and as required, the Loan Parties own or hold
under lease all of the property interests and have entered into all documents
and agreements necessary to develop, construct, complete, own and operate the
Project (including access to sufficient water rights) on the Mortgaged
Property, all in accordance with all Requirements of Law.
4.28 Utilities. All gas, water and electrical
interconnection and utility services necessary for the construction and
operation of the Project for its intended purposes are or will be available at
the Site as and when required.
4.29 Fiscal Year. The fiscal year of each of the Loan
Parties (including the Borrower) ends on December 31 of each calendar year.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Closing Date. The occurrence of the
Closing Date is subject to the satisfaction of each of the conditions
precedent described in Section 3.1 of the Disbursement Agreement (unless
waived by the Administrative Agent with the consent of all the Lenders). For
purposes of this Agreement, so long as the "Closing Transactions" occur prior
to, concurrently with, or immediately after the Closing Date (or, in the case
of the distribution to Wynn Resorts, through one or more Wholly Owned
Subsidiaries of Wynn Resorts, of an amount equal to the net cash proceeds
received by the Borrower in respect of an unwind payment or termination
payment of Hedge Agreements in existence on the date hereof, within three
Business Days of the Closing Date), the implementation of such Closing
Transactions shall be deemed to have occurred immediately prior to the Closing
Date and shall not constitute a breach or violation of any representation or
covenant set forth in this Agreement. For purposes of the foregoing, the term
"Closing Transactions" means all transactions contemplated to occur on the
Closing Date pursuant to the Offering Memorandum, dated as of November 22,
2004, relating to the offering by the Borrower and Capital Corp. of the 2014
Notes, including the Refinancing Transactions, and the unwind or termination
of the above described Hedge Agreements and distribution to Wynn Resorts.
5.2 Conditions to Extensions of Credit Pursuant to Section
2.5(a) or 3.2(a). The agreement of each Lender to make extensions of credit
requested to be made by it pursuant to Section 2.5(a) or 3.2(a), as
applicable, is subject to the satisfaction, prior to or concurrently with the
making of such extensions of credit, of the following conditions precedent:
(a) Notice. The Borrower and/or the Disbursement Agent, as
the case may be, shall have delivered to the Administrative Agent and, in the
case of Letters of Credit, the Issuing Lender the Notice of Advance Request
and related Advance Confirmation Notice with respect to the Loans and/or
Letters of Credit requested on such Borrowing Date, in each case in the form,
at the times and as required under Section 2.3 of the Disbursement Agreement
and in accordance with the procedures specified in Section 2.5(a) hereof in
the case of Loans and Section 3.2(a) hereof in the case of Letters of Credit.
(b) Drawdown Frequency for Loans: Loans shall be made no
more frequently than once every calendar month (unless such Loans are being
requested pursuant to Section 3.5, in which case such Loans shall be made at
such times as requested pursuant to Section 3.5).
(c) Satisfaction of Disbursement Agreement Conditions
Precedent. All conditions precedent described in Section 3.2 or 3.3 of the
Disbursement Agreement, as applicable to such extension of credit, shall have
been satisfied or waived in accordance with the terms of the Disbursement
Agreement.
5.3 Conditions to Extensions of Credit Requested Pursuant to
Section 2.5(b), 2.5(c) or 3.2(b). The agreement of each Lender to make
extensions of credit requested to be made by it pursuant to Sections 2.5(b),
2.5(c) or 3.2(b) is subject to the satisfaction, prior to or concurrently with
the making of such extensions of credit, of the following conditions
precedent:
(a) Notice. The Borrower shall have delivered (i) in the
case of the borrowing of Loans, a Notice of Borrowing to the Administrative
Agent in accordance with the procedures specified in Section 2.5(b) or 2.5(c)
as applicable and (ii) in the case of the issuance of Letters of Credit, a
Letter of Credit Request and the certificates, documents and other papers and
information delivered to it in connection therewith to the Issuing Lender in
accordance with the procedures specified in Section 3.2(b).
(b) Representations and Warranties. Each of the
representations and warranties made by the Completion Guarantor, Wynn Resorts
Holdings or any Loan Party in or pursuant to the Loan Documents shall be true
and correct in all material respects on and as of such date as if made on and
as of such date, except for representations and warranties expressly stated to
relate to a specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects only as of such
earlier date.
(c) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or immediately after giving effect to
the extensions of credit requested to be made on such date.
(d) No Material Adverse Effect. No events or circumstances
individually or collectively having a Material Adverse Effect shall have
occurred since the Closing Date (except as is no longer continuing).
Each borrowing of Loans by and issuance of a Letter of Credit on behalf of the
Borrower pursuant to Sections 2.5(b), 2.5(c) or 3.2(b) shall constitute a
representation and warranty by the Borrower as of the date of such extension
of credit that the conditions contained in this Section 5.3 have been
satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding (that has not been
cash collateralized pursuant to the terms of this Agreement) or any Loan or
other amount is owing to any Lender, any Arranger, any Manager or any Agent
hereunder or under any other Loan Document (other than contingent obligations
not then due and payable), the Borrower shall and shall cause each of the
other Loan Parties to, directly or indirectly:
6.1 Financial Statements. Furnish to the Administrative
Agent (which the Administrative Agent shall deliver to the Lenders):
(a) as soon as available, but in any event not later than
the earlier of (i) 10 days after the filing with the SEC of the Borrower's
Annual Report (or Wynn Resorts' Annual Report if no Annual Report for the
Borrower has been filed) on Form 10-K (or successor form thereto) with respect
to each Fiscal Year and (ii) 90 days after the end of each Fiscal Year, a copy
of the audited consolidated balance sheets of the Borrower and its
consolidated Subsidiaries as at the end of such Fiscal Year and the related
audited consolidated statements of income and of cash flows for such Fiscal
Year, setting forth in each case in comparative form the figures for the
previous Fiscal Year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope of the
audit, by Deloitte & Touche LLP or other independent certified public
accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than
the earlier of (i) 10 days after the filing with the SEC of the Borrower's
Quarterly Report (or Wynn Resorts' Quarterly Report if no Quarterly Report for
the Borrower has been filed) on Form 10-Q (or successor form thereto) with
respect to each of the first three quarterly periods of each Fiscal Year and
(ii) 45 days after the end of each of the first three quarterly periods of
each Fiscal Year, the unaudited consolidated balance sheets of the Borrower
and its consolidated Subsidiaries as at the end of such quarter and the
related unaudited consolidated statements of income and of cash flows for such
quarter and the portion of the Fiscal Year through the end of such quarter,
setting forth in each case in comparative form the figures for the previous
year, certified by a Responsible Officer as being fairly stated in all
material respects (subject to normal year-end audit adjustments); and
(c) on and after the Phase I Opening Date, as soon as
available, but in any event not later than 45 days after the end of each month
occurring during each Fiscal Year (other than the third, sixth, ninth and
twelfth such month), the unaudited consolidated balance sheets of the Borrower
and its consolidated Subsidiaries as at the end of such month and the related
unaudited consolidated statements of income and of cash flows for such month
and the portion of the Fiscal Year through the end of such month, setting
forth in each case in comparative form the figures for the previous year and
the figures from the applicable Projections, certified by a Responsible
Officer as being fairly stated in all material respects (subject to normal
year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects (in the case of financial statements delivered pursuant to
subsections (b) and (c) of this Section 6.1, subject to normal year-end audit
adjustments) and shall be prepared in reasonable detail and, in the case of
financial statements delivered pursuant to subsections (a) and (b) of this
Section 6.1, in accordance with GAAP applied consistently throughout the
periods reflected therein and with prior periods (except as approved by such
accountants or officer, as the case may be, and disclosed therein).
6.2 Certificates; Other Information. Furnish to the
Administrative Agent or, in the case of clauses (m) through (q) promptly give
written notice to the Administrative Agent (in each case which the
Administrative Agent shall deliver to the Lenders):
(a) concurrently with the delivery of the financial
statements referred to in Section 6.1(a), a certificate of the independent
certified public accountants reporting on such financial statements stating
that (i) their audit examination has included a review of the terms of this
Agreement as it relates to accounting matters, (ii) in making the examination
necessary therefor no knowledge was obtained of any Default or Event of
Default, except as specified in such certificate and (iii) based on their
audit examination nothing has come to their attention that causes them to
believe that the information contained in the certificates (including, without
limitation, the Compliance Certificate) delivered therewith pursuant to
subsection (b) below is not correct or stated in accordance with the terms of
this Agreement;
(b) concurrently with the delivery of any financial
statements pursuant to Section 6.1, (i) a certificate of a Responsible Officer
stating that such Responsible Officer has obtained no knowledge of the
existence of any Default or Event of Default except as specified in such
certificate, (ii) in the case of quarterly or annual financial statements, a
Compliance Certificate containing all information and calculations necessary
for determining compliance by the Loan Parties with the provisions of this
Agreement referred to therein as of the last day of the applicable fiscal
quarter or Fiscal Year, as the case may be and (iii) in the case of monthly
financial statements delivered after the Phase I Opening Date, a certificate
of a Responsible Officer setting forth all payments made by the Borrower with
respect to Affiliated Overhead Expenses during the 12-month period ending on
the last day of the applicable month (or such shorter period commencing on the
Phase I Opening Date if the Phase I Opening Date occurred during such 12-month
period) and stating that all such payments were in reimbursement of Affiliated
Overhead Expenses and permitted pursuant to Section 7.10(c);
(c) as soon as available, and in any event no later than the
Phase I Opening Date and 30 days prior to the beginning of each Fiscal Year
thereafter, a detailed consolidated budget of the Borrower and its
consolidated Subsidiaries for such Fiscal Year (or portion thereof from the
Phase I Opening Date through the end of such Fiscal Year) (including a
projected consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as of the end of such Fiscal Year, and the related consolidated
statements of projected cash flow, projected changes in financial position and
projected income), and, as soon as available, significant revisions, if any,
of such budget and projections with respect to such Fiscal Year (collectively,
the "Projections"), which Projections shall in each case be accompanied by a
certificate of a Responsible Officer stating that, at the time made, such
Projections are based on estimates, information and assumptions believed by
the Responsible Officer to be reasonable at the time made;
(d) within 45 days after the end of each fiscal quarter
after the Phase I Opening Date, a narrative discussion and analysis of the
financial condition and results of operations of each of the Loan Parties for
such fiscal quarter and for the period from the beginning of the then current
Fiscal Year (or if the then current Fiscal Year is the Fiscal Year in which
the Phase I Opening Date has occurred, from the Phase I Opening Date) to the
end of such fiscal quarter, as compared to the portion of the Projections
covering such periods and to the comparable periods of the previous Fiscal
Year;
(e) within five Business Days after the same are sent,
copies of all financial statements and reports that any Loan Party generally
sends to the holders of any class of its debt securities to the extent not
previously delivered to the Administrative Agent and, within five Business
Days after the same are filed, copies of all financial statements and reports
that any Loan Party may make to, or file with, the SEC;
(f) on the date of the occurrence thereof, notice that (i)
any or all of the First Lien Secured Obligations (other than the Obligations)
or Second Lien Secured Obligations have been accelerated or (ii) the agent,
lenders, trustee or the holders of or with respect to any First Lien Secured
Obligations (other than the Obligations) or Second Lien Secured Obligations,
as the case may be, has given notice that any or all such obligations are to
be accelerated;
(g) promptly, and in any event within ten Business Days
after any Material Contract, or any other contract or arrangement (or series
of related contracts or arrangements) pursuant to which the Loan Parties are,
or any one of them is, reasonably expected to incur obligations or liabilities
with a Dollar value in excess of $15,000,000 during the term of such contract
or arrangement, is terminated or amended or any new Material Contract or any
other such contract or arrangement is entered into, or upon becoming aware of
any material default by any Person under a Material Contract or any other such
contract or arrangement, a written statement describing such event with copies
of such amendments or new Material Contracts or such other contracts or
arrangements, and, with respect to any such terminations or material defaults,
an explanation of any actions being taken (if any) with respect thereto;
(h) promptly upon receipt, copies of all notices provided to
any Loan Party or their Affiliates pursuant to any documents evidencing First
Lien Secured Obligations (other than the Obligations) or Second Lien Secured
Obligations relating to material defaults or material delays and promptly upon
execution and delivery thereof, copies of all amendments to any of the
documents evidencing First Lien Secured Obligations (other than the
Obligations) or Second Lien Secured Obligations;
(i) to the extent not included in subsections (a) through
(h) above, no later than the date the same are required to be delivered
thereunder, copies of all agreements, documents or other instruments
(excluding legal opinions of counsel of the Loan Parties but including,
without limitation, (i) audited and unaudited, pro forma and other financial
statements, reports, forecasts, and projections, together with any required
certifications thereon by independent public auditors or officers of any Loan
Party or otherwise, (ii) press releases, (iii) statements or reports furnished
to any other holder of the securities of any Loan Party and (iv) regular,
periodic and special securities reports) that any Loan Party is required to
provide pursuant to the terms of the First Lien Secured Obligations (other
than the Obligations) or Second Lien Secured Obligations;
(j) promptly, and in any event within 30 days of the end of
each Fiscal Year after the Phase I Opening Date, deliver to the Administrative
Agent a certificate substantially in the form of Exhibit H hereto or otherwise
in form and substance reasonably satisfactory to the Administrative Agent in
consultation with the Insurance Advisor, certifying that the insurance
requirements of Section 6.5 have been implemented and are being complied with
in all material respects;
(k) within twenty days after the end of each fiscal quarter
of the Borrower, a schedule of all Proceedings involving an alleged liability
of, or claims against, any Loan Party equal to or greater than $2,500,000, and
promptly after request by the Administrative Agent such other information as
may be reasonably requested by the Administrative Agent to enable the
Administrative Agent and its counsel to evaluate any of such Proceedings;
(l) promptly, such additional financial and other
information as any Lender may from time to time reasonably request;
(m) upon any officer of a Loan Party obtaining knowledge
thereof, the occurrence of any Default or Event of Default;
(n) upon any officer of a Loan Party obtaining knowledge
thereof, the institution of any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration against or affecting any Loan Party, or any Property of a Loan
Party (collectively, "Proceedings") not previously disclosed in writing by the
Borrower to the Administrative Agent that, in any case (i) if adversely
determined, has a reasonable possibility of giving rise to a Material Adverse
Effect or (ii) seeks to enjoin or otherwise prevent the consummation of, or to
recover any damages or obtain relief as a result of, the transactions
contemplated hereby, or any material development in any such Proceeding;
(o) the following events, as soon as possible and in any
event within 30 days after any Loan Party knows thereof: (i) the occurrence of
any Reportable Event with respect to any Plan, a material failure to make any
required contribution to a Plan, the creation of any Lien in favor of the PBGC
or a Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings
or the taking of any other action by the PBGC, the Borrower, any other Loan
Party or any Commonly Controlled Entity or any Multiemployer Plan with respect
to the withdrawal from, or the termination, Reorganization or Insolvency of,
any Plan; and
(p) any other development or event that has had or could
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to clauses (m) through (o) of this Section shall be
accompanied by a statement of a Responsible Officer setting forth details of
the occurrence referred to therein and stating what action the relevant Loan
Party proposes to take with respect thereto.
6.3 Payment of Obligations. To the extent not otherwise
subject to valid subordination, standstill, intercreditor or similar
arrangements, pay, discharge or otherwise satisfy at or before maturity or
before they become delinquent, as the case may be, all its obligations of
whatever nature, except where (a) the amount or validity thereof is currently
being contested in good faith by appropriate proceedings and reserves in
conformity with GAAP with respect thereto have been provided on the books of
the relevant Loan Party or (b) the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
6.4 Conduct of Business and Maintenance of Existence, etc.
(a) Preserve, renew and keep in full force and effect its corporate or limited
liability company existence and in each case remain a Wholly Owned Subsidiary
of Wynn Resorts and (b) take all reasonable action to maintain all rights,
privileges, franchises, Permits and licenses necessary or desirable in the
normal conduct of its business, except, in each case, as otherwise permitted
by Section 7.4 and except, in the case of subsection (b) above, to the extent
that failure to do so could not (individually or in the aggregate) reasonably
be expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Leases; Insurance. (a) Keep all
material Property and systems useful and necessary in its business in good
working order and condition, ordinary wear and tear excepted.
(b) Maintain all rights of way, easements, grants,
privileges, licenses, certificates, and Permits necessary for the intended use
of any Real Estate, except any such item the loss of which, individually or in
the aggregate, could not reasonably be expected to materially and adversely
affect or interfere with the Permitted Business of any Loan Party or have a
material adverse effect on the Site.
(c) Comply with the terms of each lease or other grant of
Real Estate, including easement grants, so as to not permit any material
uncured default on its part to exist thereunder, except, in each case, where
noncompliance therewith could not reasonably be expected to materially and
adversely affect or interfere with the Permitted Business or Property of any
Loan Party.
(d) At all times maintain in full force and effect the
insurance policies and programs listed on Schedule 6.5(d).
(e) Deliver to the Administrative Agent on behalf of the
Secured Parties, (i) upon request of any Secured Party from time to time,
information as to the insurance carried, (ii) promptly following receipt
thereof, from any insurer, a copy of any notice of cancellation or material
change in coverage from that existing on the Closing Date, (iii) forthwith,
notice of any cancellation or nonrenewal of coverage by any Loan Party, unless
such insurance is replaced prior to the cancellation or non-renewal thereof in
accordance with Schedule 6.5(d) and (iv) promptly after such information is
available to any Loan Party, information as to any claim for an amount in
excess of $5,000,000 with respect to any property and casualty insurance
policy maintained by any such Loan Party.
6.6 Inspection of Property; Books and Records; Discussions.
(a) Keep in all material respects, adequate books of records and account in
which entries shall be made of all dealings and transactions in relation to
its business and activities to allow preparation of the financial statements
referred to in Section 6.1 in accordance with GAAP and (b) subject to any
Nevada Gaming Laws restricting such actions, permit representatives of any
Lender, coordinated through the Administrative Agent, to visit and inspect any
of its properties and examine and, at such Person's expense (unless a Default
or Event of Default is continuing, in which case at the Borrower's expense),
make abstracts from any of its books and records at any reasonable time and
upon reasonable prior notice and as often as may reasonably be desired and,
during normal business hours, to discuss the business, operations, properties
and financial and other condition of any Loan Party with officers of such Loan
Party and with their respective independent certified public accountants
(provided that a Responsible Officer may be present for any such discussions
with independent certified public accountants if the Borrower so chooses).
6.7 Aircraft Security. In the event that within 180 days
after the Closing Date the Borrower or the applicable Loan Party (or any trust
owned by any such Person that owns the Aircraft) does not incur Indebtedness
permitted by Section 7.2(c) secured by a Lien on the Aircraft as permitted
pursuant to Section 7.3(j), within 5 Business Days after the expiration of
such 180-day period take or cause to be taken all actions that the
Administrative Agent or the Collateral Agent reasonably deem necessary or
advisable to grant the Collateral Agent for the benefit of the Secured Parties
a perfected first priority security interest in the Aircraft and the leasehold
estate described under number 2 of Schedule 4.25(a), in each case subject only
to Permitted Liens, including, without limitation, all actions that would have
been required pursuant to Sections 6.10 had such Aircraft and leasehold estate
had been newly acquired on the last day of such 180-day period.
6.8 Environmental Laws; Permits. (a) Comply in all material
respects with, and use best efforts to ensure compliance in all material
respects by all tenants and subtenants, if any, with, all applicable
Environmental Laws and Environmental Permits, and obtain, maintain and comply
in all material respects with, and use best efforts to ensure that all tenants
and subtenants obtain, maintain and comply in all material respects with, any
and all licenses, approvals, notifications, registrations or Permits required
by applicable Environmental Laws except, in each case, to the extent any
non-compliance could not reasonably be expected to result in any material
liability to the Loan Parties or their Properties or in an inability of the
Loan Parties to perform their respective obligations in any material respect
under the Operative Documents.
(b) In the event that the Borrower or any other Loan Party
fails to comply with Section 6.8(a), the Administrative Agent may (i) retain,
at the Borrower's expense, an independent professional consultant to review
any environmental audits, investigations, analyses and reports relating to the
non-compliance and the conditions giving rise to the non-compliance and (ii)
conduct its own investigation of the non-compliance and the conditions giving
rise to the non-compliance. For purposes of conducting such a review and/or
investigation, the Administrative Agent and its agents, employees, consultants
and contractors shall have, upon reasonable prior notice, the right to enter
into or onto the Site or the Project and to perform such tests on such
property (including taking samples of soil, groundwater and suspected
asbestos-containing materials) as are reasonably necessary in connection
therewith. Any such investigation shall be conducted, unless otherwise agreed
to by a Loan Party and the Administrative Agent, during normal business hours
and shall be conducted so as not to unreasonably interfere with the ongoing
operations at the Site or the Project or to cause any damage or loss to any
property at the Site or the Project. Any report of any investigation conducted
at the request of the Administrative Agent pursuant to this Section will be
obtained and shall be used by the Administrative Agent and the Lenders for the
purposes of the Lenders' internal credit decisions, to monitor and police the
Loans and to protect the Lenders' security interests, if any, created by the
Loan Documents. A copy of such report shall be provided to the Borrower. The
Administrative Agent agrees that any such investigation shall be conducted by
an environmental consulting firm qualified and licensed by the State of
Nevada.
(c) Deliver to the Administrative Agent (i) as soon as
practicable following receipt thereof, copies in any Loan Party's possession
or any Loan Party's control of all material environmental audits,
investigations, analyses and reports of any kind or character, whether
prepared by personnel of the Loan Parties or by independent consultants,
governmental authorities or any other Persons (other than any Lender), with
respect to Environmental Matters at the Site or the Project or with respect to
any Environmental Claims, (ii) promptly upon the occurrence thereof, written
notice describing in reasonable detail (A) any Release required to be reported
to any federal, state or local governmental or regulatory agency under any
applicable Environmental Laws, (B) any remedial action taken by any Person in
response to (1) any Hazardous Materials Activities the existence of which has
a reasonable possibility of resulting in one or more Environmental Claims
against a Loan Party that could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect, or (2) any Environmental
Claims against a Loan Party that could reasonably be expected, individually or
in the aggregate, to result in a Material Adverse Effect, (iii) as soon as
practicable following the sending or receipt thereof by any Loan Party, a copy
of any and all written communications with respect to (A) any Environmental
Claims that could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect, (B) any Release required to be reported
to any federal, state or local governmental or regulatory agency and (C) any
request for information from any governmental agency indicating that such
agency is investigating whether any Loan Party may be potentially responsible
for any Hazardous Materials Activity, (iv) prompt written notice describing in
reasonable detail (A) any proposed acquisition of stock, assets, or property
by any Loan Party that could reasonably be expected to (1) expose any Loan
Party to, or result in, Environmental Claims that could reasonably be expected
to result, individually or in the aggregate, in a Material Adverse Effect or
(2) affect the ability of any Loan Party to maintain in full force and effect
all material Permits required under any Environmental Laws for their
respective operations and (B) any proposed action to be taken by any Loan
Party to modify current operations in a manner that could reasonably be
expected to subject such Loan Party to any material additional obligations or
requirements under any Environmental Laws that could reasonably be expected to
result, individually or in the aggregate, in a Material Adverse Effect, (v)
any notice that any Governmental Authority may condition approval of, or any
application for, any material Permit held by any Loan Party on terms and
conditions that are materially burdensome to such Loan Party, or to the
operation of any of its businesses or any property owned, leased or otherwise
operated by such Person, (vi) notice of any actions or proceedings of the
types described in Sections 4.17(c) through (e), (vii) as soon as practicable,
all documents submitted to, filed with or received from any Governmental
Authority, including, without limitation, the Nevada Public Utilities
Commission and the State of Nevada, Division of Water Resources, with respect
to any material water permits held by any Loan Party or otherwise utilized or
expected to be utilized with respect to the Project and (viii) with reasonable
promptness, such other documents and information as from time to time may be
reasonably requested by the Administrative Agent in relation to any matters
disclosed pursuant to this Section 6.8(c).
6.9 Dissolution of the Completion Guarantor. As is
reasonably practicable, following the Phase II Final Completion Date,
liquidate, wind up and dissolve the Completion Guarantor. After the Completion
Guarantor is dissolved in accordance with this Section 6.9, all references to
the Completion Guarantor contained in this Agreement or any other Loan
Document shall be deemed deleted and any provisions with respect to or
affecting the Completion Guarantor (whether representations, warranties,
covenants or otherwise) shall be of no further force or effect.
6.10 Additional Collateral, Discharge of Liens, etc. (a)
With respect to any Property acquired after the Closing Date by any Loan Party
as to which the Collateral Agent, for the benefit of the Secured Parties, does
not have a perfected security interest (other than (I) Property described in
paragraph (b) below, (II) subject to Section 6.7, the Aircraft, (III) subject
to Section 6.11(b), cash and cash equivalents, (IV) any Macau Loans made
directly by a Loan Party to Wynn Macau in accordance with Section 7.8(l) and
(V) any other Excluded Assets), subject to compliance with applicable Nevada
Gaming Laws and restrictions on the granting of Liens permitted pursuant to
Section 7.13, promptly (and in any event within five Business Days following
the date of such acquisition or such longer period as may be reasonably
approved by the Administrative Agent) (i) execute and deliver to the
Collateral Agent such amendments to the Security Agreement or such other
documents as the Administrative Agent or the Collateral Agent reasonably deems
necessary or advisable to grant to the Collateral Agent, for the benefit of
the Secured Parties, a security interest in such Property and (ii) take all
actions reasonably necessary or advisable to grant to the Collateral Agent,
for the benefit of the Secured Parties, a perfected first priority security
interest in such Property (subject to Permitted Liens), including, without
limitation, the filing of UCC financing statements in such jurisdictions as
may be reasonably required by the Security Agreement or by law or as may be
requested by the Administrative Agent or the Collateral Agent. In addition to
the foregoing, in the event any such Property acquired after the Closing Date
consists of Real Estate or other Property with respect to which a recording in
the real property records of an appropriate jurisdiction is required or
advisable in order to perfect a security interest therein, promptly (and, in
any event, within five Business Days following the date of such acquisition or
such longer period approved by the Administrative Agent) (A) execute and
deliver a mortgage, substantially in the form of the Mortgages (with such
modifications, if any, as are necessary to comply with Requirements of Law or
that the Administrative Agent or the Collateral Agent may reasonably request),
such mortgage to be recorded in the real property records of the appropriate
jurisdiction, or execute and deliver to the Collateral Agent for recording a
supplement to an existing Mortgage, in either case pursuant to which the
applicable Loan Party grants to the Collateral Agent on behalf of the Secured
Parties a Lien on such Real Estate subject only to Permitted Liens, (B)
provide the Collateral Agent on behalf of the Secured Parties with a
commitment to issue title and extended coverage insurance covering such Real
Estate in an amount at least equal to the fair market value of such Real
Estate, and in any event consistent with (except for coverage amount) the
title and extended coverage insurance covering the Site obtained pursuant to
the Disbursement Agreement, or obtain a commitment to issue an appropriate
endorsement or supplement to an existing Title Policy (in the case of an
appropriate endorsement or supplement to an existing Title Policy, without any
increase in the coverage amount of such Title Policy), (C) execute and deliver
an environmental indemnity agreement with respect to such Real Estate,
substantially in the form of the Indemnity Agreements (with such
modifications, if any, as are necessary to comply with Requirements of Law or
that the Administrative Agent may reasonably request) and (D) execute and/or
deliver such other documents or provide such other information in furtherance
thereof as the Administrative Agent or the Collateral Agent may reasonably
request, including delivering documents and taking such other actions which
would have been required under Section 3.1 of the Disbursement Agreement if
such Real Estate were part of the Mortgaged Property on the Closing Date.
(b) With respect to any new Subsidiary created or acquired
after the Closing Date by any Loan Party, subject to compliance with Nevada
Gaming Laws, promptly (and in any event within five Business Days following
the date of such acquisition or creation or such longer period as may be
reasonably approved by the Administrative Agent) (i) execute and deliver to
the Collateral Agent such amendments to (if any) the Security Agreement as the
Administrative Agent or the Collateral Agent reasonably deems necessary or
advisable to grant to the Collateral Agent, for the benefit of the Secured
Parties, a perfected first priority security interest in the Capital Stock of
such new Subsidiary (subject to Permitted Liens), (ii) deliver to the
Collateral Agent the certificates (if any) representing such Capital Stock,
together with undated stock or similar powers, in blank, executed and
delivered by a duly authorized officer of such Loan Party, as applicable,
(iii) cause such new Subsidiary (A) to become a party to the Guarantee, the
Security Agreement, the Subordinated Intercompany Note and, to the extent
applicable, the Intellectual Property Security Agreements and (B) to take such
actions reasonably necessary or advisable to grant to the Collateral Agent for
the benefit of the Secured Parties a perfected first priority security
interest (subject to Permitted Liens) in the Collateral described in the
Security Agreement and, to the extent applicable, the Intellectual Property
Security Agreements with respect to such new Subsidiary, including, without
limitation, the recording of instruments in the United States Patent and
Trademark Office and the United States Copyright Office, the execution and
delivery by all necessary Persons of Control Agreements and the filing of UCC
financing statements in such jurisdictions as may be required by the Security
Agreement, the Intellectual Property Security Agreements or by law or as may
be reasonably requested by the Administrative Agent or the Collateral Agent,
(iv) if requested by the Administrative Agent or the Collateral Agent, deliver
to the Collateral Agent legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent and (v) execute and/or
deliver such other documents or provide such other information as the
Administrative Agent or the Collateral Agent may reasonably request, including
delivering documents and taking such other actions which would have been
required under Section 3.1 of the Disbursement Agreement if such new
Subsidiary were a Loan Party on the Closing Date. In addition to the
foregoing, in the event any such new Subsidiary owns or otherwise has
interests in any Real Estate or other Property with respect to which a
recording in the real property records of an appropriate jurisdiction is
required or advisable in order to perfect a security interest therein,
promptly (and, in any event, within five Business Days following the date of
such acquisition or such longer period as may be approved by the
Administrative Agent) (1) execute and deliver a mortgage, substantially in the
form of the Mortgages (with such modifications, if any, as are necessary to
comply with Requirements of Law or that the Administrative Agent or the
Collateral Agent may reasonably request), such mortgage to be recorded in the
real property records of the appropriate jurisdiction, or execute and deliver
to the Collateral Agent for recording a supplement to an existing Mortgage, in
either case pursuant to which the applicable Loan Party grants to the
Collateral Agent on behalf of the Secured Parties a Lien on such Real Estate
subject only to Permitted Liens, (2) provide the Collateral Agent on behalf of
the Secured Parties a commitment to issue title and extended coverage
insurance covering such Real Estate in an amount at least equal to the fair
market value of such Real Estate, and in any event consistent with (except for
coverage amount) the title and extended coverage insurance covering the Site
obtained pursuant to the Disbursement Agreement, or obtain a commitment to
issue an appropriate endorsement or supplement to an existing Title Policy (in
the case of an appropriate endorsement or supplement to an existing Title
Policy, without any increase in the coverage amount of such Title Policy), (3)
execute and deliver an environmental indemnity agreement with respect to such
Real Estate, substantially in the form of the Indemnity Agreements (with such
modifications, if any, as are necessary to comply with Requirements of Law or
that the Administrative Agent may reasonably request) and (4) execute and/or
deliver such other documents or provide such other information in furtherance
thereof as the Administrative Agent or the Collateral Agent may reasonably
request, including delivering documents and taking such other actions which
would have been required under Section 3.1 of the Disbursement Agreement if
such Real Estate were part of the Mortgaged Property on the Closing Date.
(c) Notwithstanding anything to the contrary in this Section
6.10, paragraphs (a) and (b) of this Section 6.10 shall not apply to any
Property or new Subsidiary created or acquired after the Closing Date, as
applicable, as to which the Administrative Agent has determined in its sole
discretion that the collateral value thereof is insufficient to justify the
difficulty, time and/or expense of obtaining either (i) a perfected security
interest therein or (ii) with respect to Real Estate, title and extended
coverage insurance.
6.11 Use of Proceeds and Revenues. (a) Use the proceeds of
the Loans and request the issuance of Letters of Credit, only for the purposes
specified in Section 4.16; provided, that (i) no more than an aggregate of
$276,000,000 of proceeds of extensions of credit hereunder shall be applied
toward Project Costs with respect to the Phase I Project, (ii) no more than an
aggregate of $122,000,000 of proceeds of extensions of credit hereunder shall
be applied toward the funding of the Macau Loan and (iii) the aggregate
proceeds of extensions of credit hereunder applied toward Project Costs with
respect to the Phase II Project prior to the later of the Phase II Approval
Date and the Phase I Opening Date shall not exceed at any time the difference
between (A) $100,000,000 and (B) the aggregate proceeds of the 2014 Notes
applied toward Project Costs with respect to the Phase II Project at such time
(it being agreed that any extensions of credit hereunder or proceeds of the
2014 Notes applied on Closing Date in order to consummate the Refinancing
Transaction shall not be deemed expended in furtherance of Project Costs with
respect to the Phase II Project). For purposes of Section 6.11(a)(i), (x)
until such time as the 2014 Notes Proceeds Account has been Exhausted, all
Advances made from the Bank Proceeds Account, the 2014 Notes Proceeds Account
and from the Revolving Credit Facility in respect of Project Costs related to
the Phase I Project shall be deemed to have been drawn in accordance with the
ratio set forth in Section 2.4.1(b) of the Disbursement Agreement and (y) the
Company may allocate Advances from the Company's Funds Account between the
Phase I Project and the Phase II Project at its discretion.
(b) Deposit in a Funding Account and, until utilized,
maintain on deposit in a Funding Account, all cash and cash equivalents other
than (i) On-Site Cash, (ii) cash and cash equivalents required pursuant to
Nevada Gaming Laws or by Nevada Gaming Authorities to be deposited into Gaming
Reserves, (iii) cash or cash equivalents to be applied to Project Costs for
the Phase II Project pursuant to Section 5.1.4 of the Disbursement Agreement
and (iv) cash or cash equivalents that in the ordinary course of business are
not maintained on deposit in a bank or other deposit or investment account
pending application toward working capital or other general corporate purposes
of the Loan Parties.
6.12 Compliance with Laws, Project Documents, etc.; Permits.
(a) Comply with all Requirements of Law, noncompliance with which could
reasonably be expected to cause, individually or in the aggregate, a Material
Adverse Effect and comply in all material respects with its Governing
Documents.
(b) Comply, duly and promptly, in all respects with its
respective obligations and enforce all of its respective rights under all
Project Documents, except where the failure to comply could not reasonably be
expected to have a Material Adverse Effect.
(c) From time to time obtain, maintain, retain, observe,
keep in full force and effect and comply with the terms, conditions and
provisions of all Permits as shall now or hereafter be necessary under
applicable laws, except to the extent the noncompliance therewith could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. From time to time maintain, retain, observe and keep in full
force and effect and comply with all material terms conditions and provisions
of all material water permits held by any Loan Party or otherwise utilized or
expected to be utilized with respect to the Project.
6.13 Further Assurances. From time to time execute and
deliver, or cause to be executed and delivered, such additional instruments,
certificates or documents, and take all such actions, as the Administrative
Agent may reasonably request, for the purposes of implementing or effectuating
the provisions of this Agreement and the other Loan Documents, or of more
fully perfecting or renewing the rights of the Collateral Agent and the
Secured Parties with respect to the Collateral (or with respect to any
additions thereto or replacements or proceeds or products thereof or with
respect to any other property or assets hereafter acquired by any Loan Party
which may be deemed to be part of the Collateral) pursuant hereto or thereto.
Upon the exercise by the Administrative Agent or any Lender of any power,
right, privilege or remedy pursuant to this Agreement or the other Loan
Documents which requires any consent, approval, recording, qualification or
authorization of any Governmental Authority, the Borrower shall, or shall
cause any other applicable Loan Party to, execute and deliver, or will cause
the execution and delivery of, all applications, certifications, instruments
and other documents and papers that the Administrative Agent or such Lender
may be required to obtain from the Borrower or the applicable Loan Party for
such governmental consent, approval, recording, qualification or
authorization. In the event that, notwithstanding the covenants contained in
Article 7, a Lien not otherwise permitted under this Agreement shall encumber
the Mortgaged Property or any portion thereof, the relevant Loan Party shall
promptly discharge or cause to be discharged by payment to the lienor or lien
claimant or promptly secure removal by bonding or deposit with the county
clerk or otherwise or, at the Administrative Agent's option, and if obtainable
promptly obtain title insurance against, any such Lien or mechanics' or
materialmen's claims of lien filed or otherwise asserted against the Mortgaged
Property or any other item of Collateral or any portion thereof within 60 days
after the date of notice thereof; provided, that the provisions of this
Section 6.13 (and compliance therewith) shall not be deemed to constitute a
waiver of any of the provisions of Article 7. Each of the Loan Parties shall
fully preserve the Lien and the priority of each of the Mortgages and the
other Security Documents without cost or expense to the Administrative Agent,
the Collateral Agent or the Secured Parties. If any Loan Party fails to
promptly discharge, remove or bond off any such Lien or mechanics' or
materialmen's claim of lien as described above, which is not being contested
by the applicable Loan Party in good faith by appropriate proceedings promptly
instituted and diligently conducted, within 30 days after the receipt of
notice thereof, then the Administrative Agent may, but shall not be required
to, procure the release and discharge of such Lien, mechanics' or
materialmen's claim of lien and any judgment or decree thereon, and in
furtherance thereof may, in its sole discretion, effect any settlement or
compromise with the lienor or lien claimant or post any bond or furnish any
security or indemnity as the Administrative Agent, in its sole discretion, may
elect. In settling, compromising or arranging for the discharge of any Liens
under this subsection, the Administrative Agent shall not be required to
establish or confirm the validity or amount of the Lien. The Borrower agrees
that all costs and expenses expended or otherwise incurred pursuant to this
Section 6.13 (including reasonable attorneys' fees and disbursements) by the
Administrative Agent shall constitute Obligations and shall be paid by the
Borrower in accordance with the terms hereof.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding (that has not been
cash collateralized pursuant to the terms of this Agreement) or any Loan or
other amount is owing to any Lender, any Arranger, any Manager or any Agent
hereunder or under any other Loan Document (other than contingent obligations
not then due and payable), the Borrower shall not, and shall not permit any of
the other Loan Parties to, directly or indirectly:
7.1 Financial Condition Covenants.
(a) Consolidated Leverage Ratio - Pre-Phase II Opening Date.
(i) In the event that the Phase II Commitment
Sunset Date occurs without the Phase II Approval Date having occurred, permit
the Consolidated Leverage Ratio (calculated in accordance with Section 1.3) as
at the last day of any period of four full consecutive fiscal quarters (or
such shorter period ending on any Quarterly Date set forth below and beginning
on the first day of the fiscal quarter ending on the first Quarterly Date)
ending on any Quarterly Date set forth below to exceed the ratio set forth
below opposite such Quarterly Date:
Consolidated
Quarterly Date Leverage Ratio
First and Second Quarterly Dates 5.75:1
- --------------------------------------------------------------------------------
Third and Fourth Quarterly Dates 5.25:1
Fifth and Sixth Quarterly Dates 5.00:1
Seventh Quarterly Date 4.75:1
Eighth Quarterly Date 4.50:1
Ninth and Tenth Quarterly Dates 4.25:1
Eleventh and Twelfth Quarterly Dates 4.00:1
Thirteenth Quarterly Date and each Quarterly Date thereafter 3.75:1
(ii) In the event that the Phase II Approval Date
occurs on or prior to the Phase II Commitment Sunset Date, permit the
Consolidated Leverage Ratio (calculated in accordance with Section 1.3) as at
the last day of any period of four full consecutive fiscal quarters (or such
shorter period ending on any Quarterly Date set forth below and beginning on
the first day of the fiscal quarter ending on the first Quarterly Date) ending
on any Quarterly Date set forth below to exceed the ratio set forth below
opposite such Quarterly Date; provided that in no event shall this Section
7.1(a)(ii) apply on and after the Initial Phase II Calculation Date:
Consolidated
Quarterly Date Leverage Ratio
- --------------------------------------------------------------------------------
First, Second and Third Quarterly Dates 6.00:1
Fourth and Fifth Quarterly Dates 5.50:1
Sixth and Seventh Quarterly Dates 5.00:1
Eighth Quarterly Date and each Quarterly Date thereafter 4.75:1
until the Initial Phase II Calculation Date
(b) Minimum Consolidated EBITDA - Post-Phase II Opening Date. In the event the
Phase II Approval Date occurs on or prior to the Phase II Commitment Sunset
Date, permit Consolidated EBITDA of the Borrower for any period of four full
consecutive fiscal quarters ending on the Initial Phase II Calculation Date or
any of the immediately succeeding two Quarterly Date to be less than the
amount set forth below opposite such Quarterly Date:
Consolidated
Quarterly Date EBITDA
- -------------------------------------------------------------------------------
Initial Phase II Calculation Date $325,000,000
First Quarterly Date after the Initial Phase II $350,000,000
Calculation Date
Second Quarterly Date after the Initial Phase II $375,000,000
Calculation Date
(c) Consolidated Leverage Ratio - Post-Phase II Opening
Date. In the event the Phase II Approval Date occurs on or prior to the Phase
II Commitment Sunset Date, permit the Consolidated Leverage Ratio as at the
last day of any period of four full consecutive fiscal quarters ending on the
third Quarterly Date after the Initial Phase II Calculation Date or any
Quarterly Date thereafter to exceed the ratio set forth below opposite such
Quarterly Date:
Consolidated
Quarterly Date Leverage Ratio
- --------------------------------------------------------------------------------
Third Quarterly Date after the Initial Phase II Calculation
Date and each Quarterly Date thereafter through and including
September 30, 2008 4:50:1
Quarterly Dates from December 31, 2008 through and including 4.00:1
September 30, 2009
Quarterly Dates from and after December 31, 2009 3.75:1
(d) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio for any period of four full consecutive
fiscal quarters (or such shorter period ending on any Quarterly Date set forth
below and beginning on the first day of the fiscal quarter ending on the first
Quarterly Date) ending on any Quarterly Date set forth below to be less than
the ratio set forth below opposite such Quarterly Date:
Consolidated
Interest Coverage
Quarterly Date Ratio
- --------------------------------------------------------------------------------
Quarterly Dates on or prior to September 30, 2007 2.25:1
Quarterly Dates from and after December 31, 2007 2.50:1
7.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness created under any Loan Document;
(b) Unsecured Indebtedness of any Loan Party (other than
Capital Corp. and Wynn Golf, unless the proceeds of such Indebtedness are
necessary for the organizational maintenance of any such party) to any other
Loan Party; provided, that in each case such Indebtedness is evidenced by, and
subject to the terms and conditions of, the Subordinated Intercompany Note;
(c) Unless a Lien shall have been previously granted to the
Secured Parties on the Aircraft to secure the Obligations in accordance with
Section 6.7, Indebtedness secured by Liens permitted by Section 7.3(j) in an
aggregate principal amount not less than 50% and not more than 100% of the
fair market value of the Aircraft determined at the time of the incurrence of
such Indebtedness;
(d) Indebtedness (other than the Indebtedness referred to in
Section 7.2(f)) outstanding on the date hereof and listed on Schedule 7.2(d)
and any refinancings, refundings, renewals or extensions thereof (without any
increase in the principal amount thereof or any shortening of the maturity of
any principal amount thereof);
(e) Unsecured Guarantee Obligations made in the ordinary
course of business by any Loan Party of obligations of the Borrower or any
other Loan Party (other than Capital Corp. and Wynn Golf);
(f) (i) Indebtedness of the Borrower and Capital Corp.
created under the 2010 Notes Indenture in respect of the 2010 Notes in an
aggregate principal amount not to exceed $13,131,635.00 (reduced by any
principal payments from time to time made thereon) and Guarantee Obligations
of any Loan Party in respect thereto; and (ii) Indebtedness of the Borrower
and Capital Corp. created under the 2014 Notes Indenture in respect of the
2014 Notes in an aggregate principal amount, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this subclause (ii), not to exceed
$1,300,000,000 (reduced by any principal payments from time to time made
thereon) and Guarantee Obligations of any Loan Party in respect thereto;
(g) Indebtedness (including, without limitation, Capital
Lease Obligations) secured by Liens permitted by Section 7.3(s) in an
aggregate principal amount not to exceed $30,000,000 at any time outstanding;
(h) Indebtedness to any employees of Wynn Resorts or its
Wholly Owned Subsidiaries (or their estates or trusts) incurred in connection
with the repurchase, redemption or other acquisition or retirement for value
of Capital Stock of Wynn Resorts permitted pursuant to Section 7.6(e);
provided, that such Indebtedness outstanding at any time, when aggregated with
the aggregate of all payments previously made under Section 7.6(e), will not
exceed $10,000,000;
(i) Subordinated Debt not to exceed an aggregate of
$25,000,000 at any time outstanding; provided, that the Net Cash Proceeds of
such Subordinated Debt shall be applied within two Business Days of the
receipt of such proceeds to the prepayment of the Obligations in accordance
with Section 2.12(a);
(j) prior to the Phase I Final Completion Date (to the
extent related to the development and construction of the Phase I Project) and
during the period from the Phase II Approval Date until the Phase II Final
Completion Date (the extent related to the development and construction of the
Phase II Project), Indebtedness in respect of performance bonds, guaranties,
commercial or standby letters of credit (other than Letters of Credit),
bankers' acceptances or similar instruments issued by a Person other than Wynn
Resorts or any Subsidiary of Wynn Resorts for the benefit of a trade creditor
of any Loan Party, in an aggregate amount not to exceed $40,000,000 at any
time outstanding so long as (i) such Indebtedness is incurred in the ordinary
course of business and (ii) the obligations of any Loan Party, as the case may
be, supported by such performance bonds, guaranties, trade letters of credit,
bankers' acceptances or similar instruments (1) consist solely of payment
obligations with respect to costs incurred in accordance with the applicable
Project Budget which would otherwise be permitted to be paid by the applicable
Loan Party pursuant to the Disbursement Agreement, (2) are secured and (3) are
secured solely by Liens permitted by Section 7.3(u);
(k) on and after the date that is 60 days prior to the
reasonably anticipated Phase I Opening Date, Indebtedness in respect of
performance bonds, guaranties, commercial or standby letters of credit (other
than Letters of Credit), bankers' acceptances or similar instruments issued by
a Person other than Wynn Resorts or any Affiliate of Wynn Resorts for the
benefit of a trade creditor of any Loan Party, in an aggregate amount not to
exceed $25,000,000 at any time outstanding so long as such Indebtedness (i) is
incurred in the ordinary course of business; (ii) does not consist of payment
obligations with respect to Project Costs related to the Phase II Project; and
(iii) if secured, are secured solely by Liens permitted by Section 7.3(v);
(l) Indebtedness, the Net Cash Proceeds of which are used
for the development, construction and opening of an Additional Entertainment
Facility and/or Retail Facility, in an aggregate principal amount (or original
accreted value, as applicable) at any time not to exceed 66?% of the aggregate
cost of such Additional Entertainment Facility and/or Retail Facility;
provided that net cash proceeds have been received by the Borrower as a
contribution to its equity capital in an amount equal to at least 33?% of the
projected aggregate cost of such Additional Entertainment Facility and/or
Retail Facility, which amount has been irrevocably committed substantially
concurrent with the date of incurrence of such Indebtedness for use to
develop, construct and open such Additional Entertainment Facility and/or
Retail Facility; provided, further, the Borrower shall cause equity capital to
be contributed to the Borrower such that 33?% of the costs related to the
Additional Entertainment Facility and/or Retail Facility shall have been
funded with equity capital; and
(m) additional Indebtedness in an aggregate principal amount
(for all Loan Parties) not to exceed $40,000,000 at any time outstanding.
7.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its Property, whether now owned or hereafter
acquired, except for:
(a) Liens for taxes, assessments or governmental charges or
claims not yet due and payable or which are being contested in good faith by
appropriate proceedings, provided that adequate reserves with respect thereto
are maintained on the books of the applicable Loan Party, to the extent
required by GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
suppliers' repairmen's or other like Liens arising in the ordinary course of
business for amounts which are not overdue for a period of more than 30 days
or that are being contested in good faith by appropriate proceeding (and, in
any event, there has been no commencement of the sale of any portion of the
Collateral on account of such Lien); provided, that adequate reserves with
respect thereto are maintained on the books of the applicable Loan Party, to
the extent required by GAAP;
(c) Liens arising in connection with workers' compensation,
unemployment insurance, old age pensions and social security benefits or other
similar benefits;
(d) Liens incurred on deposits made to secure the
performance of bids, tenders, trade contracts (other than for borrowed money),
leases, statutory obligations, appeal bonds, indemnities, release bonds, fee
and expense arrangements with trustees and fiscal agents and other obligations
of a like nature incurred in the ordinary course of business;
(e) easements, covenants, rights-of-way, restrictions,
subdivisions, parcelizations, encroachments and other similar encumbrances and
other minor defects and irregularities in title that, in the aggregate, are
not substantial in amount, which do not in any case materially detract from
the value of the Real Estate including, without limitation, those matters set
forth on any title policy provided to the Administrative Agent subsequent to
the Closing Date with respect to Real Estate acquired subsequent to the
Closing Date;
(f) Liens in existence on the date hereof listed on Schedule
7.3(f); provided, that no such Lien is spread to cover any additional Property
(other than proceeds of the sale or other disposition thereof) after the
Closing Date;
(g) Liens created pursuant to the Security Documents or
otherwise securing the Obligations (including Liens created thereunder
securing Specified Hedge Agreements);
(h) leases and subleases in each case permitted under the
Loan Documents, and any leasehold mortgage in favor of any party financing the
lessee under any such lease or sublease; provided, that no Loan Party is
liable for the payment of any principal of, or interest, premiums or fees on,
such financing;
(i) Liens created by the Golf Course Lease;
(j) Liens securing Indebtedness permitted under Section
7.2(c); provided that such Liens attach only to the Aircraft, the beneficial
interest of any trust which owns the Aircraft and/or such Loan Party that
either directly owns the Aircraft or owns the beneficial interest in any trust
that owns the Aircraft (in the case of any such Loan Party, so long as such
Loan Party owns no material Property other than the Aircraft and/or the
beneficial interest of any such trust) and any proceeds thereof;
(k) Liens securing Indebtedness permitted under Section
7.2(f)(ii);
(l) Liens in respect of an agreement to Dispose of any
Property, to the extent such Disposition is permitted by Section 7.4 or 7.5;
(m) so long as the Disbursement Agreement is in effect, any
"Permitted Liens" under the Disbursement Agreement;
(n) any attachment, judgment, writs or warrants of
attachment or other similar Liens not constituting an Event of Default under
Section 8.1(h);
(o) Permitted Encumbrances;
(p) Liens arising from the filing of UCC financing
statements relating solely to leases;
(q) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in connection
with the importation of goods;
(r) any zoning or similar law or right reserved to or vested
in any Governmental Authority to control or regulate the use of any Real
Estate;
(s) Liens on any Property (including the interest of a
lessee under a Capitalized Lease or Synthetic Lease Obligation) securing
Indebtedness incurred or assumed for the purpose of financing (or financing
the purchase price within 180 days after the respective purchase of Property)
all or any part of the acquisition, design, installation, construction, repair
or improvement cost of such Property; provided, that (i) such Liens do not at
any time encumber any Property other than the Property (and proceeds of the
sale or other Disposition thereof and the proceeds (including insurance
proceeds), products, rents, profits, accession and replacements thereof or
thereto) financed by such Indebtedness, (ii) such Lien either exists on the
date hereof or is created in connection with the acquisition, design,
installation, construction, repair or improvement of such Property, (iii) the
Indebtedness secured by any such Lien does not exceed 100% of the fair market
value of such Property and is otherwise permitted to be incurred pursuant to
Section 7.2(g) and (iv) the Property financed by such Indebtedness is not of a
type that will become affixed to the Project such that the removal thereof
could reasonably be expected to physically damage the Project in any material
respect;
(t) Liens in respect of customary rights of set off,
revocation, refund or chargeback or similar rights under deposit,
disbursement, concentration account agreements or under the UCC or arising by
operation of law of banks or other financial institutions where any Loan Party
maintains deposit, disbursement or concentration accounts in the ordinary
course of business permitted by this Agreement;
(u) Liens on cash disbursed pursuant to the Disbursement
Agreement and deposited with, or held for the account of, any Loan Party
securing reimbursement obligations under performance bonds, guaranties,
commercial or standby letters of credit, bankers' acceptances or similar
instruments permitted under Section 7.2(j), granted in favor of the issuers of
such performance bonds, guaranties, commercial letters of credit or bankers'
acceptances, so long as (i) any cash disbursed to secure such reimbursement
obligations is invested (if at all) in Permitted Securities only (to the
extent the Borrower has the right to direct the investment thereof) and is
segregated from the Loan Parties' general cash accounts so that such Liens
attach only to such cash and Permitted Securities and (ii) the amount of cash
and/or Permitted Securities secured by such Liens is not less than the amount
of Indebtedness secured thereby and in any event does not exceed 110% of the
amount of the Indebtedness secured thereby (ignoring any interest earned or
paid on such cash and any dividends or distributions declared or paid in
respect of such Permitted Investments);
(v) Liens on cash deposited with, or held for the account
of, any Loan Party securing reimbursement obligations under performance bonds,
guaranties, commercial or standby letters of credit, bankers' acceptances or
similar instruments permitted under Section 7.2(k), granted in favor of the
issuers of such performance bonds, guaranties, commercial letters of credit or
bankers' acceptances, so long as (i) any cash used as security for such
reimbursement obligations is invested (if at all) in Cash Equivalents only (to
the extent the Borrower has the right to direct the investment thereof) and is
segregated from the Loan Parties' general cash accounts so that such Liens
attach only to such cash and Cash Equivalents and (ii) the amount of cash
and/or Cash Equivalents secured by such Liens does not exceed 110% of the
amount of the Indebtedness secured thereby (ignoring any interest earned or
paid on such cash and any dividends or distributions declared or paid in
respect of such Cash Equivalents);
(w) Liens created or expressly contemplated by the Affiliate
Agreements, in each case as in effect on the date hereof, so long as such
Liens do not secure Indebtedness;
(x) Liens securing Indebtedness permitted under Section
7.2(f)(i); provided that such Liens attach only to the 2010 Notes Satisfaction
Proceeds;
(y) in the event any Macau Loans are made directly to Wynn
Macau in accordance with Section 7.8(l), Liens of any lenders or other
providers of debt, loan facilities or stand-by facilities to Wynn Macau on
such Macau Loans and the proceeds thereof (in each case only to the extent
that the Macau Loans are effectively subordinated in right of payment to the
Indebtedness or other obligations of any such lenders or other providers of
debt, loan facilities or stand-by facilities); provided that the Indebtedness
or other obligations secured by any such Lien shall be non-recourse to the
Loan Parties (other than with respect to such Macau Loans);
(z) additional Liens incurred by any Loan Party so long as
the value of the Property subject to such Liens (valued at the time such Lien
is incurred) do not exceed $5,000,000 in the aggregate at any time;
(aa) to the extent constituting Liens, any trust's ownership
interest in the Aircraft; and
(bb) Liens of sellers of goods to any Loan Party arising
under Article 2 of the UCC or similar provisions of applicable law in the
ordinary course of business, covering only the goods sold and securing only
the unpaid purchase price for such goods and related expenses.
7.4 Limitation on Fundamental Changes. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or Dispose of all or
substantially all of its Property or business, except that:
(a) any Loan Party may be merged or consolidated with or
into any other Loan Party (provided, that in the event any such merger or
consolidation involves (i) the Borrower, the Borrower shall be the continuing
or surviving entity and (ii) Capital Corp. or Wynn Golf, neither Capital Corp.
nor Wynn Golf shall be the continuing or surviving entity;
(b) any Loan Party may Dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or any other Loan
Party (other than Capital Corp. or Wynn Golf);
(c) any Loan Party (other than the Borrower) may liquidate,
wind up or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and its
Subsidiaries taken as a whole and is not materially disadvantageous to the
Lenders; and
(d) any Loan Party may Dispose of any of its Property in
accordance with Section 7.5.
7.5 Limitation on Disposition of Property. Dispose of any of
its Property (including, without limitation, receivables and leasehold
interests), whether now owned or hereafter acquired, or issue or sell any
shares of Capital Stock to any Person, except:
(a) the Disposition for fair market value of obsolete or
worn out Property or Property no longer useful in the business of the Loan
Parties;
(b) the Disposition of cash or cash equivalents, Investments
permitted pursuant to Section 7.8, inventory (in the ordinary course of
business (other than the sale of condominiums, time shares, integral
ownerships or other similar interests)) and receivables (in connection with
the collection thereof and otherwise as customary in gaming operations of the
type conducted by the Loan Parties);
(c) Dispositions permitted by Section 7.4;
(d) the sale or issuance of any Loan Party's Capital Stock
(other than Disqualified Stock) to its direct parent;
(e) Dispositions of Property having a fair market value not
in excess of $25,000,000 in the aggregate (with respect to all the Loan
Parties) in any Fiscal Year following the Phase I Opening Date; provided, that
(i) the consideration received for such Property shall be in an amount at
least equal to the fair market value thereof; and (ii) the consideration
received therefor shall be at least 85% in cash or cash equivalents;
(f) subject to the last paragraph of this Section 7.5, the
Borrower may enter into any leases with respect to any space on or within the
Project;
(g) the dedication of space or other Dispositions of
Property in connection with and in furtherance of constructing (i) a mass
transit system, (ii) a pedestrian bridge over or a pedestrian tunnel under Las
Vegas Boulevard or Sands Avenue or similar structures to facilitate the
movement of pedestrians or vehicular traffic, (iii) a right turn lane or other
roadway dedication or (iv) such other structures or improvements reasonably
related to the development, construction and operation of the Project;
provided, that (A) in each case such dedication or other Dispositions are in
furtherance of, and do not materially impair or interfere in the use or
operations (or intended use or operations) of, the Project and (B) in no event
shall the Loan Parties in the aggregate Dispose of (other than by way of
dedication to a Governmental Authority) more than five acres of Real Estate
pursuant to this Section 7.5(g);
(h) any Loan Party may (i) license trademarks, trade names
and other Intellectual Property in the ordinary course of business and not
interfering in any material respect with the ordinary conduct of the business
of the Loan Parties and (ii) abandon any trademarks, trade names or other
Intellectual Property no longer useful in the business of the Loan Parties;
(i) the incurrence of Liens permitted under Section 7.3;
provided, that any leases other than those permitted pursuant to Section
7.3(i) (whether or not constituting Permitted Liens) shall be permitted only
to the extent provided in subsection (f) above and the last paragraph of this
Section 7.5;
(j) Disposition of the Wynn Home Site Land to or as directed
by Mr. Wynn provided that (i) no Default or Event of Default has occurred and
is continuing at the time of such Disposition and such Disposition is not
prohibited under the other Financing Agreements, (ii) the cash purchase price
paid by Mr. Wynn or his designee for the Wynn Home Site Land is in immediately
available funds and equal to or greater than the fair market value of the Wynn
Home Site Land, as determined in good faith by the Loan Parties, (iii) the
Mortgaged Properties affected by the Disposition of the Wynn Home Site Land
constitute separate legal parcels under Nevada Revised Statutes, Chapter 278,
(iv) the Borrower shall have certified that construction of Mr. Wynn's
personal residence on the Wynn Home Site could not reasonably be expected to
materially interfere with the use or operations of the Golf Course and could
not otherwise reasonably be expected to impair the overall value of the
Project, (v) appropriate reconveyance documentation in form and substance
reasonably satisfactory to the Administrative Agent and the Collateral Agent
shall have been prepared reflecting the release of the Wynn Home Site Land
from the Lien of the applicable Mortgage(s) and such documentation shall have
been recorded at the Clark County, Nevada Recorder's Office, (vi) the Borrower
shall have delivered to the Administrative Agent and the Collateral Agent an
endorsement, or a commitment by the Title Insurer to issue an endorsement, to
the Title Policy, in either case in form and substance reasonably satisfactory
to the Administrative Agent, insuring that the execution and recordation of
the reconveyance documentation described in clause (v) above does not impair
the Lien of the Mortgage(s) affected by such reconveyance documentation and
(vii) no Points of Diversion with respect to any water permits held by any
Loan Party or otherwise utilized or expected to be utilized with respect to
the Project, wells associated therewith or rights-of-way necessary for the
transportation of water available under such water permits to the Golf Course
Land or the water features of the Project, as the case may be, are located on
the Wynn Home Site Land. Upon satisfaction of the foregoing conditions, the
Administrative Agent shall execute and deliver to the Loan Parties such
documents and instruments, including UCC-3 termination statements and deeds of
reconveyance, all as may be reasonably requested by the Loan Parties to
release the Liens granted for the benefit of the Secured Parties in the Wynn
Home Site Land, and to effectuate such Disposition; provided, that an
instrument reasonably acceptable to the Administrative Agent is recorded
against the Wynn Home Site Land to the effect that until the earlier of (x)
the Disposition of the Golf Course Land in accordance with Section 7.5(k) or
(y) the payment in full of the Obligations, only a personal residence for Mr.
Wynn will be developed on the Wynn Home Site Land, the provisions of such
instrument to burden the Wynn Home Site Land for the benefit of the Golf
Course Land;
(k) Disposition of the Golf Course Land and/or, at the
option of the Loan Parties, Disposition of the Capital Stock of Wynn Golf;
provided, that (i) no Default or Event of Default has occurred and is
continuing at the time of such Disposition and such Disposition is not
prohibited under the other Financing Agreements, (ii) such Disposition occurs
on or after the last day of the second full fiscal quarter of the Borrower
occurring after the Phase II Commitment Sunset Date (if the Phase II Approval
Date has not by then occurred) or the Phase II Completion Date (if the Phase
II Approval Date has occurred), (iii) at the time of such Disposition, the
Consolidated Leverage Ratio (calculated in accordance with Section 1.3(b)) for
the period of four full consecutive fiscal quarters ending on each of the two
most recent Quarterly Dates was 5.0 to 1.0 or less (provided, that, in each
such case, there shall be excluded from such calculations of the Consolidated
Leverage Ratio the Consolidated EBITDA, if any, derived from the Golf Course
during any applicable period) and (iv) no Points of Diversion with respect to
any water permits held by any Loan Party or otherwise utilized or expected to
be utilized with respect to the water features of the Project (other than the
Golf Course), wells associated therewith or rights-of-way necessary for the
transportation of water available under such water permits to the water
features of the Project (other than the Golf Course) are located on the Golf
Course Land (or otherwise Wynn Golf shall have transferred (previously or in
connection with such Disposition) at no cost to the Borrower such easements as
are necessary for the Borrower to access such Points of Diversion, own and
operate such wells and transport such water to the water features of the
Project and the Borrower shall have taken all actions required pursuant to
Section 6.10 with respect to any Property thereby acquired). Upon satisfaction
of the foregoing conditions, the Administrative Agent shall execute and
deliver to the applicable Loan Parties such documents and instruments,
including UCC-3 termination statements, deeds of reconveyance and certificates
of Capital Stock, all as may be reasonably requested by the Loan Parties to
release the Liens granted for the benefit of the Secured Parties in the Golf
Course Land and Wynn Golf and to effectuate such Disposition;
(l) Disposition of the Home Site Land; provided that (i) no
Default or Event of Default has occurred and is continuing at the time of such
Disposition and such Disposition is not prohibited under the other Financing
Agreements, (ii) such Disposition occurs on or after the last day of the
fourth full fiscal quarter of the Borrower occurring after the Phase II
Commitment Sunset Date (if the Phase II Approval Date has not by then
occurred) or the Phase II Completion Date (if the Phase II Approval Date has
occurred), (iii) at the time of such Disposition, the Consolidated EBITDA of
the Borrower for the most recent period of four full consecutive fiscal
quarters of the Borrower was equal to or greater than $325,000,000, (iv) the
Mortgaged Properties (other than the Home Site Land) affected by the
Disposition of the Home Site Land constitute separate legal parcels under
Nevada Revised Statutes, Chapter 278, (v) the Borrower shall have certified
that construction of permitted improvements on the Home Site Land could not
reasonably be expected to materially interfere with the use or operations of
the Golf Course and could not otherwise reasonably be expected to materially
impair the overall value of the Project, (vi) appropriate reconveyance
documentation in form and substance reasonably satisfactory to the
Administrative Agent and the Collateral Agent shall have been prepared
reflecting the release of the Home Site Land from the Lien of the applicable
Mortgage(s) and such documentation shall have been recorded at the Clark
County, Nevada Recorder's Office, (vii) the Borrower shall have delivered to
the Administrative Agent and the Collateral Agent an endorsement, or a
commitment by the Title Insurer to issue an endorsement, to the Title Policy,
in either case in form and substance reasonably satisfactory to the
Administrative Agent, insuring that the execution and recordation of the
reconveyance documentation described in clause (vi) above does not impair the
Lien of the Mortgage(s) affected by such reconveyance documentation and (viii)
no Points of Diversion with respect to any water permits held by any Loan
Party or otherwise utilized or expected to be utilized with respect to the
water features of the Project or the Golf Course, wells associated therewith
or rights-of-way necessary for the transportation of water available under
such water permits to the Golf Course Land or the water features of the
Project, as the case may be, are located on the Home Site Land (or otherwise
Wynn Golf shall have transferred or reserved for the benefit of the Golf
Course Land (previously or in connection with such Disposition) at no cost to
the Loan Parties such easements as are necessary for the Loan Parties to
access such Points of Diversion, own and operate such wells and transport such
water to the water features of the Project and/or the Golf Course and the Loan
Parties shall have taken all actions required pursuant to Section 6.10 with
respect to any Property thereby acquired). Upon satisfaction of the foregoing
conditions, the Administrative Agent shall execute and deliver to the Loan
Parties such documents and instruments, including UCC-3 termination statements
and deeds of reconveyance, all as may be reasonably requested by the Loan
Parties to release the Liens for the benefit of the Secured Parties in the
Home Site Land, and to effectuate such Disposition; provided, that an
instrument reasonably acceptable to the Administrative Agent is recorded
against the Home Site Land to the effect that until the earlier of (x) the
Disposition of the Golf Course Land in accordance with Section 7.5(k) or (y)
the payment in full of the Obligations, only residential housing and other
non-gaming related developments will be developed on the Home Site Land, the
provisions of such instrument to burden the Home Site Land for the benefit of
the Golf Course Land;
(m) Dispositions of all or a portion of the Koval Land;
provided that (i) any such Disposition shall be in furtherance of the
development, construction and operation of the Project (including, without
limitation, the construction, development and operation of employee parking
facilities and other ancillary facilities) on the Koval Land and/or on
adjacent Property acquired or to be acquired by any Loan Party pursuant to the
transaction or series of transactions related to such Disposition, (ii) any
such Disposition shall be at fair market value (after taking into
consideration any cash and non-cash consideration received for such
Disposition from any transaction or series of transactions related to such
Disposition), (iii) any Net Cash Proceeds of any such Disposition that are not
reinvested or otherwise utilized in furtherance of the matters described in
clause (i) above within 360 days after such Disposition shall be deemed Net
Cash Proceeds and shall be required to be applied to the prepayment of the
Obligations in accordance with Section 2.12(b) (without any right of
reinvestment thereunder) and (iv) the Loan Parties shall have taken all
actions required pursuant to Section 6.10 with respect to any Property
acquired in connection with any transaction or series of transactions related
to any such Disposition;
(n) any Event of Eminent Domain; provided, that the Loan
Parties otherwise comply with Sections 2.12(c) and 2.24, as applicable; and
(o) Dispositions by any Loan Party to any other Loan Party
(other than Capital Corp. or Wynn Golf (except with respect to Dispositions,
the proceeds of which are necessary for the organizational maintenance of
Capital Corp. or Wynn Golf); provided, that in each case each Loan Party shall
have taken all actions required pursuant to Section 6.10 with respect to any
Property acquired by it pursuant to this clause (o);
Notwithstanding the foregoing provisions of this Section
7.5, subsection (f) above shall be subject to the additional provisos that:
(a) no Event of Default shall exist and be continuing at the time of such
transaction, lease or sublease or would occur as a result of entering into
such transaction, lease or sublease (or immediately after any renewal or
extension thereof at the option of the Borrower), (b) such transaction, lease
or sublease could not reasonably be expected to materially interfere with, or
materially impair or detract from, the operation of the Project, (c) no
gaming, hotel or casino operations (other than the operation of arcades and
games for minors) may be conducted on any space that is subject to such
transaction, lease or sublease other than by and for the benefit of the Loan
Parties and (d) no lease or sublease may provide that a Loan Party subordinate
its fee, condominium or leasehold interest to any lessee or any party
financing any lessee; provided, that (x) the Administrative Agent on behalf of
the Lenders shall agree to provide the tenant under any such lease or sublease
with a subordination, non-disturbance and attornment agreement and (y) unless
the Administrative Agent shall otherwise waive such requirement, with respect
to any such lease having a term of five years or more and reasonably
anticipated annual rents (whether due to base rent, fixed rents, reasonably
anticipated percentage rents or other reasonably anticipated rental income
from such lease or sublease) in excess of $500,000 (other than leases solely
between Loan Parties), the applicable Loan Party(ies) shall enter into, and
cause the tenant under any such lease or sublease to enter into with the
Administrative Agent for the benefit of the Lenders, a subordination,
non-disturbance and attornment agreement, in each case substantially in the
form of Exhibit N hereto with such changes as the Administrative Agent may
approve, which approval shall not be unreasonably withheld, conditioned or
delayed (provided, that such changes do not materially and adversely affect
the security interests granted in favor of the Lenders under any of the
Security Documents).
7.6 Limitation on Restricted Payments. Declare or pay any
dividend (other than dividends payable solely in common stock or in options,
warrants or other rights to purchase such common stock (excluding Disqualified
Stock) of the Person making such dividend) on, or make any payment on account
of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other acquisition of, any
Capital Stock of any Loan Party, whether now or hereafter outstanding, or make
any other distribution in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of any Loan Party, or enter into
any derivatives or other transaction with any financial institution,
commodities or stock exchange or clearinghouse (a "Derivatives Counterparty")
obligating any Loan Party to make payments to such Derivatives Counterparty as
a result of any change in market value of any such Capital Stock
(collectively, "Restricted Payments"), except that:
(a) any Loan Party may pay dividends or other distributions
(not in excess of $20,000,000 in the aggregate) to Wynn Resorts, through any
intermediate Wholly Owned Subsidiaries of Wynn Resorts, of amounts necessary
to repurchase Capital Stock or Indebtedness of Wynn Resorts (other than
Capital Stock held by the Existing Stockholders) to the extent required by the
Nevada Gaming Authorities for not more than the fair market value thereof in
order to avoid the suspension, revocation or denial by the Nevada Gaming
Authorities of a gaming license or other authorization necessary for the
ownership, construction, maintenance, lease, financing or operation of the
Project, in any event to the extent such suspension, revocation or denial
would have a Material Adverse Effect; provided, that so long as such efforts
do not jeopardize any such gaming license or other authorization necessary for
the ownership, construction, maintenance, lease, financing or operation of the
Project, Wynn Resorts and its Subsidiaries shall have diligently and in good
faith attempted to find a third-party purchaser(s) for such Capital Stock or
Indebtedness and no third-party purchaser(s) acceptable to the Nevada Gaming
Authorities was willing to purchase such Capital Stock or Indebtedness within
a time period acceptable to the Nevada Gaming Authorities;
(b) to the extent constituting Restricted Payments, (i) any
Loan Party may consummate a transaction permitted pursuant to Section 7.4,
(ii) any Loan Party may make Dispositions permitted pursuant to Section 7.5
(other than Section 7.5(b) and Section 7.5(k) (any Dispositions permitted
pursuant to Section 7.5(k), to the extent constituting Restricted Payments,
being governed by Section 7.6(h) below)), (iii) any Loan Party may make
Investments permitted pursuant to Section 7.8, (iv) any Loan Party may pay
Management Fees to Wynn Resorts permitted pursuant to Section 7.22 and (v) any
Loan Party may take actions permitted pursuant to Section 7.10;
(c) any Loan Party may make Restricted Payments to the
Borrower or any other Loan Party (other than Capital Corp. and Wynn Golf); (d)
any Loan Party may make distributions to the direct or indirect owners of such
Loan Party with respect to any period during which such Loan Party is a Pass
Through Entity or a Consolidated Member, such distributions in an aggregate
amount not to exceed such owners' Tax Amounts for such period;
(e) so long as no Default or Event of Default shall have
occurred and be continuing (or would result therefrom), the Borrower may pay
dividends directly or indirectly to Wynn Resorts to permit Wynn Resorts to
repurchase, redeem or otherwise acquire or retire Capital Stock of Wynn
Resorts held by members of management of Wynn Resorts or its Wholly Owned
Subsidiaries (or their estates or trusts) upon the death, disability or
termination of employment of such employees in accordance with any applicable
Governing Documents, employment agreements, employee benefit plans or option
plans or agreements; provided, that the aggregate amount of payments under
this subsection (e) will not exceed (i) $4,000,000 in any Fiscal Year and (ii)
$10,000,000 in the aggregate (less any Indebtedness of the Loan Parties then
outstanding pursuant to Section 7.2(h));
(f) on and after the Phase I Completion Date and so long as
no Default or Event of Default shall have occurred and be continuing and no
Material Adverse Effect shall have occurred and be continuing (or, in either
case, would result therefrom), the Loan Parties may make Restricted Payments
not otherwise permitted under any other subsection of this Section 7.6 in an
amount not to exceed an aggregate of $10,000,000, plus, for each Fiscal Year
occurring after the Fiscal Year in which the Phase I Completion Date occurs,
$2,000,000;
(g) to the extent constituting Restricted Payments, the
Borrower may (i) pay Project Costs as permitted pursuant to the Disbursement
Agreement and (ii) make payments permitted pursuant to Section 3.7 of the
Disbursement Agreement; and
(h) any Loan Party may make Restricted Payments consisting
of any portion of the Golf Course Collateral so long as (i) the Disposition of
such Golf Course Collateral is permitted pursuant to Section 7.5(k) or (ii)
the Lien on such Golf Course Collateral has been released pursuant to Section
10.22.
7.7 Limitation on Capital Expenditures. Make or incur
Capital Expenditures, in any Fiscal Year indicated below, in an aggregate
amount among all Loan Parties in excess of the corresponding amount set forth
below opposite such Fiscal Year; provided, that other than Capital
Expenditures (x) necessary to keep all associated Property and systems
reasonably related to the operation of the Golf Course Land and improvements
thereon in good and working order and condition or (y) funded by the proceeds
of equity capital contributions from Wynn Resorts (or another Loan Party to
the extent acting as an intermediary for purposes of contributing equity
capital contributions from Wynn Resorts for such Capital Expenditures), in no
event shall any Loan Party commit to make or incur Capital Expenditures with
respect to the Golf Course Land or improvements thereon in excess of (A)
$3,000,000 during the period from the Phase I Opening Date through the 18
month anniversary thereof and (B) $5,000,000 in any 12 month period
thereafter; provided, further, that unless the Secured Parties have been
granted a Lien on the Aircraft in accordance with Section 6.7, other than
Capital Expenditures (x) necessary or advisable to keep all associated
Property and systems reasonably related to the operation of the Aircraft in
good and working order and condition, whether pursuant to manufacturer
requirements or suggestions, Requirements of Law, good aircraft maintenance
practices or otherwise, or (y) funded by the proceeds of equity capital
contributions from Wynn Resorts (or another Loan Party to the extent acting as
an intermediary for purposes of contributing equity capital contributions from
Wynn Resorts for such Capital Expenditures), in no event shall any Loan Party
commit to make or incur Capital Expenditures with respect to the Aircraft.
|===========================|=============================================|
| Fiscal Year | Maximum Capital Expenditures |
|===========================|=============================================|
|Fiscal Year 2005 |$40,000,000 |
|---------------------------|---------------------------------------------|
|Fiscal Year 2006 |$80,000,000 |
|---------------------------|---------------------------------------------|
|Fiscal Year 2007 |$100,000,000 |
|---------------------------|---------------------------------------------|
|Fiscal Year 2008 and each |$120,000,000; provided, that if the Phase II |
|Fiscal Year thereafter |Commitment Sunset Date shall have occurred |
| |without the Phase II Approval Date having |
| |occurred, $100,000,000 |
|---------------------------|---------------------------------------------|
Notwithstanding the foregoing, (a) the amounts referred to above shall be
increased from time to time by the amount of cash proceeds received by the
Loan Parties as equity capital contributions from Wynn Resorts (or another
Affiliate to the extent acting as an intermediary for purposes of contributing
equity capital contributions from Wynn Resorts to a Loan Party for application
to Capital Expenditures) but only to the extent such equity capital
contribution proceeds are contributed and so applied for Capital Expenditures
(other than the Additional Entertainment Facility and/or the Retail Facility)
during the relevant Fiscal Year and (b) if any amount referred to above is not
expended in the Fiscal Year for which it is permitted, 50% of any such
non-expended amounts (the "Carryover Amount") may be carried over for
expenditure in the next succeeding Fiscal Year (with amounts expended in the
next succeeding Fiscal Year applied first against the Carryover Amount and
second against amounts set forth above in respect of such succeeding Fiscal
Year).
7.8 Limitation on Investments. Make any advance (other than
deposits with financial institutions available for withdrawal on demand,
prepaid expenses and similar items), loan, extension of credit (by way of
guaranty or otherwise) or capital contribution to, or purchase any Capital
Stock, bonds, notes, debentures or other debt securities of, purchase all or
substantially all of the assets constituting the business of a division,
branch or other unit operation from, or make any other investment in, any
other Person (all of the foregoing, "Investments"), except:
(a) extensions of trade credit in the ordinary course of
business (including, without limitation, advances to patrons of the Project's
casino operation consistent with ordinary course gaming operations);
(b) Investments in Cash Equivalents;
(c) to the extent constituting Investments, the incurrence
of Indebtedness permitted by Sections 7.2(b), 7.2(c), 7.2(d) and 7.2(e);
(d) loans and advances to employees of the Loan Parties in
the ordinary course of business (including, without limitation, for travel,
entertainment and relocation expenses) in an aggregate amount for all Loan
Parties not to exceed $5,000,000 at any one time outstanding;
(e) Investments by any Loan Party in the Borrower or any
other Loan Party (other than Capital Corp. or Wynn Golf (except with respect
to Investments, the proceeds of which are necessary for the corporate
maintenance of Capital Corp. or Wynn Golf));
(f) Investments consisting of securities received in
settlement of debt created in the ordinary course of business or in
satisfaction of judgments;
(g) capital contributions in connection with and in
furtherance of the formation of new Subsidiaries in accordance with Section
7.17;
(h) to the extent constituting Investments, (i) any Loan
Party may consummate a transaction permitted pursuant to Section 7.4, (ii) any
Loan Party may make Dispositions permitted pursuant to Section 7.5 (including,
without limitation, the assignment of gaming debts evidenced by a credit
instrument, including what are commonly referred to as "markers," to an
Affiliate of the Borrower for the purpose of collecting amounts outstanding
under such gaming debts or "markers" due to the Borrower thereunder; provided,
however, that any Affiliate receiving any such assignment enters into a
binding agreement to pay all amounts so collected back to the Borrower within
30 days of receipt of payment of such collected amounts; provided, further,
that any such Affiliate is not, at the time of any such assignment, in default
of its obligations under any such binding agreement previously delivered with
respect to any such assignment), (iii) any Loan Party may make Restricted
Payments permitted pursuant to Section 7.8 and (iv) any Loan Party may take
actions permitted pursuant to Section 7.10;
(i) Investments consisting of pledges or deposits made in
the ordinary course of business;
(j) Investments consisting of Hedging Agreements permitted
by Section 7.18;
(k) Investments consisting of debt securities and other
non-cash consideration received as consideration for a Disposition permitted
by Section 7.5;
(l) so long as at the time such Investment is made no
Default or Event of Default shall have occurred and be continuing (or would
result therefrom), Investments in the form of loans by any Loan Party (other
than Capital Corp. or Wynn Golf) to Wynn Asia, Wynn Resorts and/or Wynn Macau
in an aggregate amount not to exceed $122,000,000; provided that (i) such
Investments shall be made on or before August 30, 2005, (ii) in the case of
such Investments made in Wynn Resorts, Wynn Resorts shall promptly invest
substantially all of the proceeds of such Investments in Wynn Asia, who shall
promptly invest substantially all of such proceeds in Wynn Macau, (iii) in the
case of such Investments made in Wynn Asia, Wynn Asia shall promptly invest
substantially all of the proceeds of such Investments in Wynn Macau and (iv)
with respect to such Investments made directly in Wynn Asia or Wynn Resorts,
the Borrower shall or shall cause the applicable Loan Party to take all
actions required pursuant to Section 6.10 and the Security Documents necessary
for the Borrower or the applicable Loan Party to grant to the Collateral Agent
for the benefit of the Secured Parties a perfected first priority security
interest in such Investments. Each Investment made by a Loan Party pursuant to
this Section 7.8(l) shall be on economic terms and conditions substantially
similar to those set forth on Exhibit Q and, in the case of such Investments
in Wynn Resorts and/or Wynn Asia, such economic terms shall be substantially
similar to the economic terms of the investments made by Wynn Resorts in Wynn
Asia and/or Wynn Asia in Wynn Macau in accordance with clauses (ii) and (iii)
above;
(m) to the extent constituting Investments, any Loan Party's
beneficial ownership interests in a trust that owns the Aircraft;
(n) Investments in joint ventures that solely provide retail
services at the Project so long as (i) a Loan Party owns 50% of each such
joint venture and (ii) such investments do not exceed $5,000,000.00 at any
time outstanding; and
(o) in addition to Investments otherwise expressly permitted
by this Section 7.8, so long as no Default or Event of Default shall have
occurred and be continuing at the time such Investment is made or would result
therefrom, Investments by the Loan Parties in an aggregate amount (valued at
cost) not to exceed $10,000,000 at any time outstanding.
7.9 Limitation on Optional Payments and Modifications of
Governing Documents. (a) Make or make a binding offer to make any optional or
voluntary payment, prepayment, repurchase or redemption of, or otherwise
voluntarily or optionally defease, any Indebtedness that is either subordinate
or junior in right of payment to the Obligations (including any Subordinated
Debt), or segregate funds for any such payment, prepayment, repurchase,
redemption or defeasance, or enter into any derivative or other transaction
with any Derivatives Counterparty obligating any Loan Party to make payments
to such Derivatives Counterparty as a result of any change in market value of
such Indebtedness, (b) make or make a binding offer to make any optional or
voluntary payment, prepayment, repurchase or redemption of, or otherwise
voluntarily or optionally defease the 2014 Notes unless at such time no
Default or Event of Default shall have occurred and be continuing and the
Available Revolving Credit Commitment immediately prior to and after such
actions shall be no less than $100,000,000, (c) amend or modify, or permit the
amendment or modification of its Governing Documents in any manner materially
adverse to the Lenders or (d) permit the Completion Guarantor to amend, modify
or otherwise change the provisions of its operating agreement relating to
"conduct and separateness".
7.10 Limitation on Transactions with Affiliates. Enter into
any transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than such
transactions solely between or among Loan Parties (other than Capital Corp. or
Wynn Golf)) unless such transaction is:
(a) on terms that are not less favorable to that Loan Party
than those that might be obtained at the time in a comparable arm's length
transaction with Persons who are not Affiliates of such Loan Party and the
applicable Loan Party has delivered to the Administrative Agent prior to the
consummation of any such transaction (1) with respect to any transaction or
series of related transactions involving aggregate consideration in excess of
$10,000,000, a resolution of the Board of Directors of the applicable Loan
Party(ies) certifying that such transaction or series of related transactions
complies with this Section 7.10 and that such transaction or series of related
transactions has been approved by a majority of the disinterested members of
the Board of Directors of the applicable Loan Party(ies), to the extent there
are any such disinterested members of such Board of Directors and (2) with
respect to any such transaction or series of related transactions that
involves aggregate consideration in excess of $25,000,000, an opinion as to
the fairness to the applicable Loan Party at the time such transaction or
series of related transactions is entered into from a financial point of view
issued by an accounting, appraisal or investment banking firm of national
standing; provided, that, in no such case shall such a transaction or series
of related transactions consist of, contain, or provide for the payment of (i)
Affiliated Overhead Expenses or (ii) any fee, profit or similar component
benefiting any Loan Party or Affiliate of a Loan Party (other than a Loan
Party other than Capital Corp. or Wynn Golf);
(b) a Disposition permitted pursuant to Section 7.5
(provided, that the requirements of subsection (a) above shall apply to leases
of the Project by the Borrower permitted pursuant to Section 7.5(f) (other
than the Dealership Lease Agreement) and Dispositions permitted pursuant to
Section 7.5(b)), an Investment permitted pursuant to Section 7.8 or a
Restricted Payment permitted pursuant to Section 7.6;
(c) on and after the Phase I Opening Date, the reimbursement
by the Borrower and the other Loan Parties to Wynn Resorts of Allocable
Overhead to the extent incurred by Wynn Resorts; provided, that the amount of
Allocable Overhead reimbursable by the Loan Parties pursuant to this Section
7.10(c) during any 12-month period shall not exceed, in the aggregate, 2.00%
of Net Revenues for the period of four full consecutive fiscal quarters of the
Borrower most recently ended prior to the commencement of such 12-month
period;
(d) expressly contemplated by the Affiliate Agreements (but,
with respect to the Management Agreement, only to the extent (i) not related
to the use of any aircraft (including the Aircraft) (such use being governed
pursuant to Section 7.10(f)) or (ii) payments thereunder do not constitute
Management Fees (payments of such amounts being governed pursuant to Section
7.22)) and payment of Management Fees as permitted by Section 7.22; provided,
however, that any amendments, modifications or supplements thereto after the
Closing Date shall comply with Section 7.10(a);
(e) the payment of Project Costs as permitted pursuant to
the Disbursement Agreement;
(f) associated with the use of any aircraft (including the
Aircraft) for any purpose not reasonably related to the Project or the
Project-related Permitted Businesses of the Loan Parties, in which case either
(i) if such use is by management of Wynn Resorts or any of its Subsidiaries
(other than any Loan Party), the applicable Loan Party shall be reimbursed in
an amount determined pursuant to the Standard Industry Fare Level formula, as
described in Treasury Regulation Section 1.61-21(g) or (ii) the applicable
Loan Party shall be reimbursed promptly for all variable costs and expenses
(including, without limitation, fuel costs, personnel costs, overhead and
similar operating costs and expenses but in no event costs or expenses related
to the acquisition, maintenance or repair of any such aircraft or any fixed
assets related thereto) incurred by such Loan Party in connection with such
use;
(g) associated with an employment agreement entered into by
any Loan Party with a Person in the ordinary course of business;
(h) the lease of space at the Project for the development
and operation of a Ferrari and Maserati automobile dealership to an Affiliate
of the Borrower pursuant to the Dealership Lease Agreement;
(i) to the extent not constituting Allocable Overhead or
Management Fees, the payment of reasonable directors'/managers' fees to
directors and managers of any Loan Party or the Completion Guarantor, and
customary indemnification and insurance arrangements in favor of such
directors and managers, in each case in the ordinary course of business;
(j) the issuance by the Borrower and/or Capital Corp. of the
exchange notes contemplated by the 2014 Notes Indenture as of the Closing
Date; or
(k) the Disposition or issuance by any Loan Party of its
Capital Stock permitted pursuant to Section 7.5.
7.11 Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by any Loan Party of
Property which has been or is to be sold or transferred by any Loan Party to
such Person or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such Property or rental obligations
of any Loan Party.
7.12 Limitation on Changes in Fiscal Periods. Permit the
fiscal year of any Loan Party to end on a day other than December 31 or change
any Loan Party's method of determining fiscal quarters.
7.13 Limitation on Negative Pledge Clauses. Enter into or
suffer to exist or become effective any agreement that prohibits or limits the
ability of a Loan Party to create, incur, assume or suffer to exist any Lien
upon any of its Property or revenues, whether now owned or hereafter acquired,
to secure the Obligations other than (a) this Agreement and the other
Financing Agreements, (b) any agreements governing any Liens permitted
pursuant to Sections 7.3(d), 7.3(f), 7.3(s), 7.3(u), 7.3(v) and 7.3(x) or
Capital Lease Obligations otherwise permitted hereby (in which case, any
prohibition or limitation shall only be effective against the Property
financed thereby or subject to such Lien and proceeds thereof); provided,
that, with respect to agreements governing Liens permitted pursuant to Section
7.3(s), the principal amount of Indebtedness thereunder shall exceed 75% of
the original purchase price of the assets financed thereby, (c) any agreements
governing Indebtedness described in Section 7.2(c) secured by a Lien on the
Aircraft permitted pursuant to Section 7.3(j) (in which case any such
prohibition or limitation shall only be effective against the Aircraft and
proceeds thereof), (d) to the extent any Macau Loans are made directly by a
Loan Party to Wynn Macau in accordance with Section 7.8(l), any agreements
governing such Macau Loan (in which case, any such prohibition or limitation
shall only be effective against such Macau Loan and proceeds thereof), (e)
customary nonassignment provisions contained in leases, licenses and similar
agreements and other contracts (in each case other than those with respect to
Real Estate (other than Real Estate excluded from the Collateral pursuant to
Section 6.10(c)) and so long as such restrictions are limited to such leases,
licenses and similar agreements or other contracts, or, in the case of leases,
licenses and similar agreements, the Property subject thereto) which, taken as
a whole, are not material to the business and operations of the Loan Parties,
(f) any agreements governing the 2010 Notes Satisfaction Proceeds, (g) any
agreements governing any Excluded Assets or Released Assets (in which case any
prohibition or limitation shall only be effective against such Excluded Assets
or Released Assets applicable thereto and proceeds thereof) and (h) as
required by applicable law or any applicable rule or order, including those of
any Nevada Gaming Authority.
7.14 Limitation on Restrictions on Subsidiary Distributions,
etc. Enter into or suffer to exist or become effective any consensual
encumbrance or restriction on the ability of any Loan Party to (a) make
Restricted Payments in respect of any Capital Stock of such Loan Party held
by, or pay or subordinate any Indebtedness owed to, any other Loan Party, (b)
make Investments in any other Loan Party or (c) transfer any of its assets to
any other Loan Party, except for such encumbrances or restrictions existing
under or by reason of (i) any restrictions existing under the Loan Documents,
(ii) any restrictions under the Financing Agreements, (iii) as required by
applicable law or any applicable rule or order, including those of any Nevada
Gaming Authority, (iv) any restrictions imposed pursuant to an agreement that
has been entered into in connection with the Disposition of all or
substantially all of the Capital Stock or Property of a Loan Party or the
Disposition of Property covered by such restriction, (v) any restrictions
imposed with respect to any Property subject to a Lien permitted in accordance
with Section 7.3 pursuant to an agreement that has been entered into in
connection with the incurrence of such Liens so long as such restrictions
relate solely to the Property subject to such Liens and (vi) customary
nonassignment provisions in leases, licenses and similar agreements and other
contracts which, taken as a whole, are not material to the business and
operations of the Loan Parties.
7.15 Limitation on Lines of Business. Enter into any
business or investment activities, whether directly or indirectly, other than
Permitted Businesses; provided, however, that (a) Capital Corp. shall not hold
any material Property, incur any Indebtedness or become liable for any
material obligations or engage in any business activities (other than as
co-obligor or guarantor with respect to the Financing Agreements) or have any
Subsidiaries and (b) Wynn Golf shall not hold any material Property other than
the Golf Course Land or engage in any business activities other than those
pursuant to the Golf Course Lease. 7.16 Restrictions on Changes. (a) Agree to
any amendment to, assignment or termination of, or waive any of its rights
under, any Permit or Material Contract without in each case obtaining the
prior written consent of the Required Lenders if in any such case such
amendment, assignment, termination or waiver could reasonably be expected to
have a Material Adverse Effect (taking into consideration any viable
replacements or substitutions therefor at the time such determination is
made).
(b) Except in connection with a full redemption or other
repayment under any Financing Agreements (other than the Loan Documents) with
Permitted Refinancing Indebtedness, amend or otherwise change the terms of any
Financing Agreements (other than the Loan Documents) or make any payment
consistent with an amendment thereof or change thereto (i) if the effect of
such amendment or change is to increase the interest rate or fees on the
Indebtedness evidenced thereby, change to earlier or more frequent dates any
dates upon which payments of principal or interest are due thereon (including,
without limitation, changes to, or new additions of, mandatory prepayment
provisions) or (ii) if the effect of such amendment or change, together with
all other amendments and changes previously made, is to materially increase
the obligations of the obligors thereunder or to confer any additional rights
on the holders of the Indebtedness or obligations evidenced thereby (or a
trustee or other representative on their behalf) which could reasonably be
expected to be materially adverse to the Loan Parties (taken as a whole) or
the Lenders; provided, that the Borrower may amend the terms of any other
Financing Agreement to increase the principal amount thereof if such increase
is otherwise permitted by this Agreement.
7.17 Limitation on Formation and Acquisition of Subsidiaries
and Purchase of Capital Stock. Form, create or acquire any Subsidiary, except
the Borrower and its Subsidiaries may form, create or acquire new Domestic
Subsidiaries; provided, that (a) any such new Subsidiary shall be a Wholly
Owned Subsidiary of the Borrower and (b) any such new Subsidiary shall become
a Loan Party hereunder and otherwise comply with the requirements of Section
6.10.
7.18 Limitation on Hedge Agreements. Enter into any Hedge
Agreement other than Hedge Agreements entered into in the ordinary course of
business, and not for speculative purposes, and to protect against changes in
interest rates or foreign exchange rates.
7.19 Limitation on Sale or Discount of Receivables. Except
as permitted pursuant to Section 7.5(b), sell with recourse, or discount or
otherwise sell for less than the face value thereof, any of its notes or
accounts receivable other than an assignment for purposes of collection in the
ordinary course of business.
7.20 Limitation on Zoning and Contract Changes and
Compliance. Initiate, consent to or acquiesce to (a) any zoning downgrade of
the Mortgaged Properties or seek any material variance under any existing
zoning ordinance except, in each case, to the extent such downgrade or
variance could not reasonably be expected to materially and adversely affect
the occupancy, use or operation of all or any material portion of the Site,
(b) use or permit the use of the Mortgaged Properties in any manner that could
result in such use becoming a non-conforming use (other than a non-conforming
use otherwise in compliance with applicable land use laws, rules and
regulations by virtue of a variance or otherwise) under any zoning ordinance
or any other applicable land use law, rule or regulation or (c) any change in
any laws, requirements of Governmental Authorities or obligations created by
private contracts which now or hereafter could reasonably be expected to
materially and adversely affect the occupancy, use or operation of all or any
material portion of the Site.
7.21 No Joint Assessment; Separate Lots. Suffer, permit or
initiate the joint assessment of any Mortgaged Property with any other real
property constituting a separate tax lot.
7.22 Restrictions on Payments of Management Fees. Pay to
Wynn Resorts any Management Fees unless:
(a) no Default or Event of Default shall have occurred and
be continuing or would result from such payment and no Material Adverse Effect
shall have occurred and be continuing or would result from such payment;
(b) the Consolidated Leverage Ratio (calculated in
accordance with Section 1.3(b)) for the period of four full consecutive fiscal
quarters ending on the Quarterly Date immediately preceding the date on which
such Management Fee is proposed to be paid is no greater than 3.5 to 1.0
(calculated on a pro forma basis, giving effect to the payment of the
Management Fees proposed to be paid and any Indebtedness proposed to be
incurred to finance the payment of such Management Fees as if the same was
paid and/or incurred during such prior period); and
(c) such Management Fees in the aggregate do not exceed,
during any 12-month period, 1.5% of the Net Revenues for the period of four
full consecutive fiscal quarters of the Borrower most recently ended prior to
the commencement of such 12-month period.
Any Management Fees not permitted to be paid during a particular 12-month
period pursuant to this Section 7.22 shall be deferred and shall accrue. Such
accrued and unpaid Management Fees may be paid in any subsequent 12-month
period to the extent such payment would be permitted under subsections (a),
(b) and (c) of this Section 7.22 and not prohibited by the Management Fee
Subordination Agreement.
7.23 Project Costs for the Phase II Project. Permit
expenditures with respect to Project Costs for the Phase II Project in excess
of the sum of (a) $950,000,000 and (b) any cash equity contributions made by
Mr. Wynn, Wynn Resorts or any of their Affiliates (other than the Borrowers or
any other Loan Party) to the Borrower and deposited into the Company's Funds
Account and subsequently applied to Project Costs for the Phase II Project.
For purposes of this Section 7.23, any proceeds of the 2014 Notes applied on
the Closing Date in order to consummate the Refinancing Transaction shall not
be deemed expended in furtherance of Project Costs with respect to the Phase
II Project.
7.24 Permitted Activities of Wynn Resorts Holdings. Permit
Wynn Resorts Holdings to (a) engage in any business or activity or own any
assets other than (i) holding 100% of the Capital Stock of the Borrower and
performing activities incidental thereto (including making dividends to Wynn
Resorts with the proceeds of Restricted Payments received by it from the
Borrower in accordance with the Loan Documents) and (ii) activities associated
with or incidental to any Intellectual Property it may hold from time to time,
including pursuant to the Wynn IP Agreement, (b) sell or otherwise Dispose of
any Capital Stock of the Borrower or (c) fail to hold itself out to the public
as a legal entity separate and distinct from all other Persons; provided that
nothing in this Section 7.24 shall restrict or prohibit Wynn Resorts Holdings
from Disposing of any of its Property other than the Capital Stock of the
Borrower.
7.25 Limitation on Golf Course Land and Golf Course
Development. At any time prior to the Disposition of any of the Golf Course
Collateral in accordance with Section 7.5(k) or release of the Golf Course
Collateral in accordance with Section 10.22 (i) construct upon, develop or
improve, or permit to be constructed upon, developed or improved, the Golf
Course Land in any material respect, including any excavation or site work on
the Golf Course Land, (ii) enter into, or permit to be entered into, any
contract or agreement for such construction, development or improvement, or
for any materials, supplies or labor necessary in connection with such
construction, development or improvement (other than a contract or agreement
that is conditional upon the Disposition of the Golf Course Land in accordance
with Section 7.5(k)) or (iii) incur any Indebtedness, the proceeds of which
are expected to be used, or are used, for the construction, development or
improvement of the Golf Course Land, except:
(a) construction upon, development of or improvement to the
Golf Course Land and improvements thereon substantially in accordance with the
Plans and Specifications or the Disbursement Agreement;
(b) maintenance and repairs in the ordinary course of
business necessary to keep all associated Property and systems reasonably
related to the operation of the Golf Course Land and the Golf Course in good
and working order and condition;
(c) modifications and/or reconfigurations of the Golf Course
either (x) in connection with and in furtherance of the Disposition of the
Wynn Home Site Land or the Home Site Land in accordance with Sections 7.5(j)
and 7.5(l) or (y) desirable, in the reasonable opinion of the Borrower, in
order to enhance or improve the Golf Course;
(d) use and operation of the Golf Course on the Golf Course
Land consistent with the Golf Course Lease; and
(e) in the event of loss or damage to the Golf Course Land
or improvements thereon or any Event of Eminent Domain, the repair and
restoration of such Property in accordance with Section 2.24.
7.26 Acquisition of Real Property. Acquire a fee, easement
or other interest in any real property (including, without limitation, any
lease of real property, but excluding (x) the acquisition (but not the
exercise) of any options to acquire any such interests in real property and
(y) the transactions contemplated by the Golf Course Lease and any other
leasehold interests acquired by a Loan Party over real property already
subject to the Lien of the Mortgages) unless (a) the Borrower or an applicable
other Loan Party shall have delivered to the Administrative Agent a Phase I
Report with respect to such real property along with a corresponding reliance
letter from an environmental consultant reasonably satisfactory to the
Administrative Agent confirming that no Hazardous Substances were found in, on
or under such real property in a manner that could reasonably be expected to
result in a material liability to such Loan Party and that a Phase II Report
is not warranted by the findings of such Phase I Report and (b) if Hazardous
Substances were found in, on or under such real property pursuant to such
Phase I Report in a manner that could reasonably be expected to result in a
material liability to such Loan Party or a Phase II Report is warranted by the
findings of such Phase I Report, the Borrower or an applicable other Loan
Party shall have either (i) delivered to the Administrative Agent on behalf of
the Lenders a Phase II Report with respect to such real property along with a
corresponding reliance letter from an environmental consultant reasonably
satisfactory to the Administrative Agent, confirming, in form and substance
reasonably satisfactory to the Administrative Agent, either (A) that no
Hazardous Substances were found in, on or under such real property in a manner
that could reasonably be expected to result in a material liability to such
Loan Party or (B) matters otherwise reasonably satisfactory to the
Administrative Agent or (ii) delivered to the Administrative Agent an
environmental indemnity agreement in form and substance reasonably
satisfactory to the Administrative Agent pursuant to which an indemnitor
reasonably satisfactory to the Administrative Agent indemnifies the Borrower,
the relevant other Loan Parties and the Lenders from any and all damages or
other liabilities relating to or arising from Hazardous Substances then in, on
or under such real property or otherwise caused by or attributable to such
indemnitor.
7.27 Project Liquidity Reserve Account. (a) Prior to the
Phase I Substantial Completion Date, utilize, apply or otherwise withdraw any
amounts on deposit in the Project Liquidity Reserve Account except in
accordance with the Disbursement Agreement.
(b) On or after the Phase I Substantial Completion Date,
subject to Section 2.12(f), utilize, apply or otherwise withdraw any amounts
on deposit in the Project Liquidity Reserve Account; provided, that to the
extent cash and cash equivalents or other funds (including proceeds of
Revolving Loans or other Indebtedness permitted pursuant to Section 7.2) are
not available to the Borrower or otherwise sufficient to pay Bank Debt Service
or 2014 Notes Debt Service as the same become due and payable (such
circumstance to be certified in writing to the Administrative Agent by a
Responsible Officer of the Borrower), the Borrower may apply amounts on
deposit in the Project Liquidity Reserve Account to pay Bank Debt Service
and/or 2014 Notes Debt Service (pro rata according to such amounts then due
and owing).
7.28 Golf Course Lease Termination. Terminate or permit the
termination of, or reduce or permit the reduction of the Real Estate or other
Property covered by, the Golf Course Lease until such time as the Golf Course
Land is Disposed of in accordance with Section 7.5(k) or the Golf Course
Collateral is otherwise released in accordance with Section 10.22 (provided,
that the Real Estate or other Property subject to the Golf Course Lease may be
reduced in connection with (a) the Disposition of the Wynn Home Site Land
pursuant to Section 7.5(j) or the Disposition of the Home Site Land in
accordance with Section 7.5(l), in either case so long as such reduction is
only with respect to such Real Estate or other Property being Disposed of
pursuant to such Disposition, (b) any event of loss or damage or Event of
Eminent Domain so long as there is no breach or default of the provisions of
Section 2.24 applicable thereto and (c) any Liens permitted pursuant to
Section 7.3(e)).
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be
continuing:
(a) (i) The Borrower shall fail to pay any principal of any
Loan when due in accordance with the terms hereof; or (ii) the Borrower shall
fail to pay any principal of any Reimbursement Obligation within two Business
Days after such Reimbursement Obligation becomes due in accordance with the
terms hereof; or (iii) the Borrower shall fail to pay any interest on any Loan
or Reimbursement Obligation or any Loan Party shall fail to pay any other
Obligation payable hereunder or under any other Loan Document within five days
after any such interest or other amount under this clause (iii) becomes due in
accordance with the terms hereof; provided, that the failure to pay any amount
due under the Disbursement Agreement (and not otherwise due hereunder) shall
constitute an Event of Default hereunder only to the extent such failure to
pay constitutes a Disbursement Agreement Event of Default; or
(b) Any representation or warranty made or deemed made by
Wynn Resorts Holdings, the Completion Guarantor or any Loan Party herein or in
any other Loan Document or that is contained in any certificate, document or
financial or other statement furnished by it at any time under or in
connection with this Agreement or any such other Loan Document shall prove to
have been inaccurate in any material respect on or as of the date made or
deemed made; provided, that the inaccuracy of any representation or warranty
contained only in the Disbursement Agreement shall constitute an Event of
Default hereunder only to the extent such inaccuracy constitutes a
Disbursement Agreement Event of Default; or
(c) (i) Any Loan Party shall default in the observance or
performance of any covenant or agreement contained in Section 6.2(m), Section
6.4(a) or Section 7 hereof, (ii) the Completion Guarantor shall default in the
observance or performance of any covenant or agreement contained in the
Completion Guaranty, (iii) an "Event of Default" under and as defined in any
Mortgage shall have occurred and be continuing, (iv) a Disbursement Agreement
Event of Default shall have occurred and be continuing or (v) any Loan Party
shall fail to at all times maintain in full force and effect the insurance
policies and programs required by Section 6.5(d) (except for automobile,
workers compensation, pollution liability and design errors and omissions
insurance); or
(d) Wynn Resorts Holdings or any Loan Party shall default in
the observance or performance of any other covenant or agreement contained in
this Agreement or any other Loan Document to which it is a party (other than
as provided in subsections (a) through (c) of this Section), and such default
shall continue unremedied for a period of 30 days after the earlier of (i) the
Borrower or any other Loan Party becoming aware of such default or (ii)
receipt by the Borrower or any other Loan Party of written notice from the
Administrative Agent or any Lender of such default; provided, that the failure
to perform or comply with any such provision of the Disbursement Agreement
shall constitute an Event of Default hereunder only to the extent such failure
to perform or to comply constitutes a Disbursement Agreement Event of Default;
or
(e) The Borrower or any other Loan Party shall (i) default
in making any payment of any principal of or interest on any Indebtedness
(other than Indebtedness referred in Section 8(a)) beyond the period of grace,
if any, provided in the instrument or agreement under which such Indebtedness
was created; or (ii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or beneficiary)
to cause with the giving of notice and after the expiration of all grace and
cure periods related thereto immediately such Indebtedness to become due prior
to its stated maturity or (in the case of any such Indebtedness constituting a
Guarantee Obligation) to become payable; provided, that a default, event or
condition described in subsection (i) or (ii) of this subsection (e) shall not
at any time constitute an Event of Default unless, at such time, one or more
defaults, events or conditions of the type described in subsections (i) and
(ii) of this subsection (e) shall have occurred and be continuing with respect
to Indebtedness the outstanding principal amount of which exceeds in the
aggregate $10,000,000; provided, further, that clause (ii) above shall not
apply to (A) Indebtedness that becomes due solely as a result of the voluntary
sale or transfer of property or assets or as a result of a mandatory
prepayment or a regularly scheduled repayment or (B) prepayments that become
due as a result of any incurrence of Indebtedness (in each case to the extent
such sale, transfer or incurrence is permitted by the terms of such
Indebtedness); or
(f) (i) Wynn Resorts Holdings, the Completion Guarantor, the
Borrower or any other Loan Party shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for it or
for all or any substantial part of its assets, or Wynn Resorts Holdings, the
Completion Guarantor, the Borrower or any other Loan Party shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against Wynn Resorts Holdings, the Completion Guarantor, the
Borrower or any other Loan Party any case, proceeding or other action of a
nature referred to in subsection (i) above that (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii) there
shall be commenced against Wynn Resorts Holdings, the Completion Guarantor,
the Borrower or any other Loan Party any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets that results in the
entry of an order for any such relief that shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the entry
thereof; or (iv) Wynn Resorts Holdings, the Completion Guarantor, the Borrower
or any other Loan Party shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set forth in
subsection (i), (ii), or (iii) above; or (v) Wynn Resorts Holdings, the
Completion Guarantor, the Borrower or any other Loan Party shall generally
not, or shall admit in writing its inability to, pay its debts as they become
due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of
any Loan Party or any Commonly Controlled Entity, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate, any
Single Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is likely to result in the termination of such Plan
for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA other than in a standard
termination under Section 4041(b) of ERISA, (v) any Loan Party or any Commonly
Controlled Entity shall, or is reasonably likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any Loan Party, or any of their Subsidiaries or any
Commonly Controlled Entity shall be required to make during any Fiscal Year
payments pursuant to any employee welfare benefit plan (as defined in Section
3(1) of ERISA) that provides benefits to retired employees (or their
dependents), other than as required by Sections 601 et. seq. of ERISA, Section
4980B of the Code, or the corresponding provisions of applicable state law;
and in each case in subsections (i) through (vi) above, such event or
condition, together with all other such events or conditions, if any, could
reasonably be expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered
against any Loan Party involving for the Loan Parties, taken as a whole, a
liability (to the extent not paid or adequately covered by insurance as to
which the relevant insurance company has acknowledged coverage) of $10,000,000
or more, and enough of such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the entry
thereof to reduce the aggregate liability therefor below $10,000,000; or
(i) Any of the Security Documents or the guarantee contained
in Section 2 of the Guarantee shall cease, for any reason (other than pursuant
to the terms thereof), to be in full force and effect, or any Loan Party shall
so assert or shall assert that any provision of any Loan Document is not in
full force and effect, or any Lien created by any of the Security Documents
shall cease to be enforceable and of the same effect and priority purported to
be created thereby; provided, that no default, event or condition described in
this paragraph (i) with respect to any Security Document existing solely as a
result of any action or failure to act on the part of a party to any such
Security Document other than a Loan Party shall constitute a Default or Event
of Default; or
(j) Any of the Operative Documents shall terminate or be
terminated or canceled, become invalid or illegal or otherwise cease to be in
full force and effect prior to its stated expiration date or the Borrower, any
other Loan Party or any other Person shall breach or default under any term,
condition, provision, covenant, representation or warranty contained in any
Project Document (after the giving of any applicable notice and the expiration
of any applicable grace period); provided, that the occurrence of any of the
foregoing events with respect to any Project Document shall constitute an
Event of Default hereunder only if the same could reasonably be expected to
result in a Material Adverse Effect and the same shall continue unremedied for
thirty (30) days after the earlier of (i) the Borrower or any other Loan Party
becoming aware of such occurrence or (ii) receipt by the Borrower or any other
Loan Party of written notice from the Administrative Agent or any Lender of
such occurrence; provided, however, that in the case of any such Project
Document, if the occurrence is the result of actions or inactions by a party
other than a Loan Party, then no Event of Default shall be deemed to have
occurred as a result thereof if the Borrower provides written notice to the
Administrative Agent immediately upon (but in no event more than five (5)
Business Days after) the Borrower or any Loan Party becoming aware of, or
receiving notice of, such occurrence that the relevant Loan Party intends to
replace such Project Document and (x) such Loan Party obtains a replacement
obligor or obligors for the affected party, (y) such Loan Party enters into a
replacement Project Document on terms no less beneficial to such Loan Party
and the Secured Parties in any material respect than the Project Document
being replaced within sixty (60) days of such occurrence; provided, however,
that the replacement Project Document may require the applicable Loan Party to
pay amounts under the replacement Project Document in excess of those that
would have been payable under the replaced Project Document and (z) such
occurrence, after considering any replacement obligor and replacement Project
Document and the time required to implement such replacement, has not had and
could not reasonably be expected to have a Material Adverse Effect; provided,
further, that a breach, default or termination under any Construction
Agreement shall constitute an Event of Default hereunder only to the extent
such breach, default or termination constitutes a Disbursement Agreement Event
of Default; or
(k) The obligor on any Macau Loan fails to pay any principal
or interest when due in accordance with the terms of such Macau Loan (after
the expiration of any related notice, grace or cure periods except where such
failure to pay arises as a result of any payment blockage, subordination or
similar restriction on such payment under any documents or other agreements to
which the Macau Loans are effectively subordinated); or
(l) A Change of Control shall occur; or
(m) Any Subordinated Debt or the Management Fees payable
under the Management Agreement shall cease, for any reason, to be validly
subordinated to the Obligations of the Loan Parties as provided in the
Management Agreement, the Management Fee Subordination Agreement and the
documentation, instruments or other agreements related to the Subordinated
Debt, as the case may be; or
(n) A License Revocation that continues for three
consecutive Business Days affecting gaming operations accounting for five
percent or more of the consolidated gross revenues (calculated in accordance
with GAAP) of the Borrower related to gaming operations; or
(o) The Borrower or any other Loan Party shall fail to
observe, satisfy or perform, or there shall be a violation or breach of, any
of the terms, provisions, agreements, covenants or conditions attaching to or
under the issuance to such Person of any Permit or any such Permit or any
provision thereof shall be suspended, revoked, cancelled, terminated or
materially and adversely modified or fail to be in full force and effect or
any Governmental Authority shall challenge or seek to revoke any such Permit
if such failure to perform, violation, breach, suspension, revocation,
cancellation, termination or modification could reasonably be expected to have
a Material Adverse Effect; or
(p) Wynn Resorts Holdings takes any actions in violation of
Section 7.24.
then, and in any such event, (A) if such event is an Event of Default
specified in subsection (i) or (ii) of paragraph (f) above with respect to
Wynn Resorts Holdings or any Loan Party, automatically the Commitments shall
immediately terminate and the Loans hereunder (with accrued interest thereon)
and all other Obligations (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder) shall
immediately become due and payable and (B) if such event is any other Event of
Default, either or both of the following actions may be taken: (i) with the
consent of the Required Facility Lenders for the respective Facility, the
Administrative Agent may, or upon the request of the Required Facility Lenders
for the respective Facility, the Administrative Agent shall, by notice to the
Borrower, declare the Revolving Credit Commitments and/or the Term Loan
Commitments, as the case may be, to be terminated forthwith, whereupon the
applicable Commitments shall immediately terminate; and (ii) with the consent
of the Required Lenders, the Administrative Agent may, or upon the request of
the Required Lenders, the Administrative Agent shall, by notice to the
Borrower, declare the Loans hereunder (with accrued interest thereon) and all
other Obligations (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder) to be due
and payable forthwith, whereupon the same shall immediately become due and
payable. Upon the occurrence and during the continuation of an Event of
Default, the Administrative Agent and the Lenders shall be entitled to
exercise any and all remedies available under the Security Documents (subject
to applicable Nevada Gaming Laws and the UCC and securing any required Nevada
Gaming Approvals), including, without limitation, the Security Agreement and
the Mortgages, or otherwise available under applicable law, in equity or
otherwise, including, without limitation, the right to (I) enter into
possession of the Project and perform any and all work and labor necessary to
complete the Project or to operate and maintain the Project and (II) set off
and apply all monies on deposit in any Account or any amounts paid under the
Completion Guaranty or any other monies of a Loan Party on deposit with the
Administrative Agent or any Lender to the satisfaction of the Obligations.
With respect to all Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to this
paragraph, the Borrower shall at such time deposit in a cash collateral
account opened by the Administrative Agent an amount in immediately available
funds equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit (and the Borrower hereby grants to the Administrative Agent, for the
ratable benefit of the Secured Parties, a continuing security interest in all
amounts at any time on deposit in such cash collateral account to secure the
undrawn and unexpired amount of such Letters of Credit and all other
Obligations). If at any time the Administrative Agent determines that any
funds held in such cash collateral account are subject to any right or claim
of any Person other than the Administrative Agent and the Secured Parties or
that the total amount of such funds is less than the aggregate undrawn and
unexpired amount of outstanding Letters of Credit, the Borrower shall,
forthwith upon demand by the Administrative Agent, pay to the Administrative
Agent, as additional funds to be deposited and held in such cash collateral
account, an amount equal to the excess of (a) such aggregate undrawn and
unexpired amount over (b) the total amount of funds, if any, then held in such
cash collateral account that the Administrative Agent determines to be free
and clear of any such right and claim. Amounts held in such cash collateral
account shall be applied by the Administrative Agent to the payment of drafts
drawn under such Letters of Credit, and the unused portion thereof after all
such Letters of Credit shall have expired or been fully drawn upon, if any,
shall be applied to repay other Obligations of the Loan Parties. After all
such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other Obligations
of the Loan Parties shall have been paid in full, the balance, if any, in such
cash collateral account shall be returned to the Loan Parties (or such other
Person as may be lawfully entitled thereto). Notwithstanding anything to the
contrary contained in this Agreement, in the event the consent of the Lenders
(whether the Required Lenders, the Required Facility Lenders for a particular
Facility or otherwise) is required in connection with the exercise of remedies
pursuant to this Section 8, for purposes of determining the required lender
consent pursuant to the applicable definitions thereto (whether the "Required
Lenders", the "Required Facility Lenders" or otherwise), the Commitments of
the Lenders shall be deemed terminated. Anything in this Section 8 to the
contrary notwithstanding, the Administrative Agent shall, at the request of
the Required Lenders, rescind and annul any acceleration of the Loans and the
termination of the Commitments by written instrument filed with the Borrower.
Upon any such rescission and annulment, the Administrative Agent shall
promptly return to the Borrower any cash collateral delivered pursuant to this
paragraph.
SECTION 9. THE AGENTS; THE ARRANGERs; THE MANAGERS
9.1 Appointment. Each Lender hereby irrevocably designates
and appoints the Agents as the agents of such Lender under this Agreement and
the other Loan Documents, and each such Lender irrevocably authorizes each
Agent, in such capacity, to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and to exercise such
powers and perform such duties as are expressly delegated to such Agent by the
terms of this Agreement and the other Loan Documents, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere in this Agreement, no Agent shall have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against any Agent.
9.2 Delegation of Duties. Each Agent, with respect to the
Initial Lending Institution Provisions, each Initial Lending Institution or,
with respect to Section 7.23 or the Disbursement Agreement, each Arranger, may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. Each Lender hereby
acknowledges and consents to the Administrative Agent's appointment of the
Collateral Agent pursuant to and in accordance with the terms of the
Intercreditor Agreement. No Agent, Initial Lending Institution (with respect
to the Initial Lending Institution Provisions) or Arranger (with respect to
Section 7.23 and the Disbursement Agreement) shall be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it
with reasonable care.
9.3 Exculpatory Provisions. No Arranger, Manager, Agent,
Initial Lending Institution (with respect to the Initial Lending Institution
Provisions) nor any of their respective officers, directors, partners,
employees, agents, attorneys and other advisors, attorneys-in-fact or
affiliates shall be (i) liable to any other Arranger, Manager, Agent or
Initial Lending Institution for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted solely and proximately from its or such Person's own gross
negligence or willful misconduct in breach of a duty owed to the party
asserting liability) or (ii) responsible in any manner to any of the Lenders
for any recitals, statements, representations or warranties made by any Person
or any officer thereof contained in this Agreement or any other Loan Document
or in any certificate, report, statement or other document referred to or
provided for in, or received by the Arrangers, the Managers, the Agents or,
with respect to the Initial Lending Institution Provisions, the Initial
Lending Institutions under or in connection with, this Agreement or any other
Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Person party thereto to perform its obligations
hereunder or thereunder. Neither the Agents, the Managers, the Arrangers nor
the Initial Lending Institutions (with respect to the Initial Lending
Institution Provisions) shall be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Person.
9.4 Reliance. Each Agent, each Initial Lending Institution
(with respect to the Initial Lending Institution Provisions) and each Arranger
(with respect to Section 7.23 and the Disbursement Agreement) shall be
entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Loan Parties), independent accountants and other experts selected by such
Agent. The Agents may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. Each
Agent, each Initial Lending Institution (with respect to the Initial Lending
Institution Provisions) and each Arranger (with respect to Section 7.23 and
the Disbursement Agreement) shall be fully justified in failing or refusing to
take any action under this Agreement or any other Loan Document unless it
shall first receive such advice or concurrence of the Required Lenders or the
requisite Lenders required under Section 10.1 to authorize or require such
action (or, if so specified by this Agreement, all Lenders) as it deems
appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense that may be incurred by it
by reason of taking or continuing to take any such action. Each Agent, each
Initial Lending Institution (with respect to the Initial Lending Institution
Provisions) and each Arranger (with respect to Section 7.23 and the
Disbursement Agreement) shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders or the requisite Lenders
under Section 10.1 to authorize or require such action (or, if so specified by
this Agreement, all Lenders), and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Loans and Letters of Credit.
9.5 Notice of Default. No Agent shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Agent has received notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the requisite Lenders (or, if so specified by this Agreement, all
Lenders); provided, that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
9.6 Non-Reliance on Agents, Managers, Arrangers and Other
Lenders. Each Lender expressly acknowledges that neither the Arrangers, the
Agents, the Managers nor any of their respective officers, directors,
employees, agents, attorneys and other advisors, partners, attorneys-in-fact
or affiliates have made any representations or warranties to it and that no
act by any Arranger, Agent or Manager hereinafter taken, including any review
of the affairs of a Loan Party, the Completion Guarantor, Wynn Resorts, Wynn
Resorts Holdings or any other Person, shall be deemed to constitute any
representation or warranty by any Arranger, Agent or Manager to any Lender.
Each Lender represents to the Arrangers, the Agents and the Managers that it
has, independently and without reliance upon any Arranger, Agent or Manager or
any other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition, prospects and
creditworthiness of the Loan Parties and the Completion Guarantor and their
affiliates and made its own decision to make its Loans (and in the case of the
Issuing Lender, its Letters of Credit) hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon any Arranger, Agent or Manager or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking
or not taking action under this Agreement and the other Loan Documents, and to
make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition, prospects and
creditworthiness of the Loan Parties, Wynn Resorts, Wynn Resorts Holdings and
the Completion Guarantor and their affiliates. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, no Arranger, Agent or Manager shall have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of any Loan Party,
Wynn Resorts, Wynn Resorts Holdings or the Completion Guarantor or any other
Person that may come into the possession of such Arranger, Agent or Manager or
any of its officers, directors, employees, agents, attorneys and other
advisors, partners, attorneys-in-fact or affiliates.
9.7 Indemnification. (a) The Lenders agree to indemnify each
Arranger, Agent and Manager in its capacity as such (to the extent not
reimbursed by the Borrower as may be required hereunder and without limiting
any obligation of the Borrower to do so), ratably according to their
respective Aggregate Exposure Percentages in effect on the date on which
indemnification is sought under this Section 9.7(a) (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with such Aggregate
Exposure Percentages immediately prior to such date), from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever that may at any
time (including, without limitation, at any time following the payment of the
Loans) be imposed on, incurred by or asserted against such Arranger, Agent or
Manager in any way relating to or arising out of, the Commitments, this
Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by such Arranger, Agent or Manager
under or in connection with any of the foregoing (including, without
limitation, pursuant to the Disbursement Agreement); provided, that no Lender
shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted solely and proximately
from such Arranger's, Agent's or Manager's gross negligence or willful
misconduct in breach of a duty owed to such Lender. The agreements in this
Section 9.7(a) shall survive the payment of the Loans and Letters of Credit
and all other amounts payable hereunder.
(b) The Lenders agree to indemnify each Initial Lending
Institution in its capacity as such (to the extent not reimbursed by the
Borrower as may be required hereunder and without limiting any obligation of
the Borrower to do so), ratably according to their respective Aggregate
Exposure Percentages in effect on the date on which indemnification is sought
under this Section 9.7(b) (or, if indemnification is sought after the date
upon which the Commitments shall have terminated and the Loans shall have been
paid in full, ratably in accordance with such Aggregate Exposure Percentages
immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time
(including, without limitation, at any time following the payment of the
Loans) be imposed on, incurred by or asserted against such Initial Lending
Institution in any way relating to or arising out of any action taken or
omitted by such Initial Lending Institution under or in connection with any
Initial Lending Institution Provisions; provided, that no Lender shall be
liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court
of competent jurisdiction to have resulted solely and proximately from such
Initial Lending Institution's gross negligence or willful misconduct. The
agreements in this Section 9.7(b) shall survive the payment of the Loans and
Letters of Credit and all other amounts payable hereunder.
9.8 Arrangers, Agents and Managers in Their Individual
Capacities. Each Arranger, Agent and Manager and their respective affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with the Completion Guarantor, any Loan Party, Wynn Resorts or Wynn
Resorts Holdings as though such Arranger was not an Arranger, such Agent was
not an Agent and such Manager was not a Manager. With respect to any Loans
made or renewed by it and with respect to any Letter of Credit issued or
participated in by it, each Arranger, Agent and Manager shall have the same
rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not an Arranger, an Agent
or a Manager, as the case may be, and the terms "Lender" and "Lenders" shall
include each Arranger, Agent and Manager in their respective individual
capacities.
9.9 Successor Agents. The Administrative Agent may resign as
Administrative Agent upon 30 days' notice to the Lenders and the Borrower. If
the Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 8(a) or
Section 8(f) with respect to the Borrower shall have occurred and be
continuing) be subject to approval by the Borrower (which approval shall not
be unreasonably withheld, conditioned or delayed), whereupon such successor
agent shall succeed to the rights, powers and duties of the Administrative
Agent, and the term "Administrative Agent" shall mean such successor agent
effective upon such appointment and approval, and the former Administrative
Agent's rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or any holders of
the Loans or Letters of Credit. If a successor Administrative Agent shall not
have been so appointed within said 30 day period, the Administrative Agent
shall appoint a successor agent for the Lenders, which successor agent shall
(unless an Event of Default under Section 8(a) or Section 8(f) with respect to
the Borrower shall have occurred and be continuing) be subject to approval by
the Borrower (which approval shall not be unreasonably withheld, conditioned
or delayed), whereupon such successor agent shall succeed to the rights,
powers and duties of the Administrative Agent, and the term "Administrative
Agent" shall mean such successor agent effective upon such appointment and
approval, and the former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans or Letters of Credit. If no
successor agent has accepted appointment as Administrative Agent by the date
that is 40 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective, and the Lenders shall assume and
perform all of the duties of the Administrative Agent hereunder until such
time, if any, as the Required Lenders appoint a successor agent as provided
for above. After any retiring Administrative Agent's resignation as the
Administrative Agent, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Administrative Agent under this Agreement and the other Loan Documents.
9.10 Authorization. The Administrative Agent is hereby
irrevocably authorized by each of the Lenders to release any Lien (or to
direct the Collateral Agent or any other Person to release any Lien) covering
any Property of the Completion Guarantor, Wynn Resorts Holdings, the Borrower
or any of the other Loan Parties or any other Person that is the subject of a
Disposition which is permitted by this Agreement or any other Loan Document or
which has been consented to in accordance with Section 10.1. The
Administrative Agent is further authorized by the Lenders to enter into
agreements supplemental hereto with any Loan Party for the purpose of curing
any formal defect, inconsistency, omission or ambiguity in this Agreement or
any Loan Document to which it is a party (without any consent or approval by
the Lenders).
9.11 The Arrangers, Managers, Syndication Agent and
Documentation Agents. The Arrangers (except with respect to Section 7.23 and
the Disbursement Agreement), Managers, the Syndication Agent and the
Documentation Agent, each in their capacity as such, shall have no duties or
responsibilities, and shall incur no liability, under this Agreement and the
other Loan Documents.
9.12 Withholdings. (a) To the extent required by any
applicable law, the Administrative Agent may withhold from any interest
payment to any Lender an amount equivalent to any applicable withholding tax.
If the forms or other documentation required by Section 2.20(f) are not
delivered to the Administrative Agent, then the Administrative Agent may
withhold from any interest payment to any Lender not providing such forms or
other documentation, an amount equivalent to the applicable withholding tax.
(b) If the Internal Revenue Service or any authority of the
United States or other jurisdiction asserts a claim that the Administrative
Agent did not properly withhold tax from amounts paid to or for the account of
any Lender (because the appropriate form was not delivered, was not properly
executed, or because such Lender failed to notify the Administrative Agent of
a change in circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason), such Lender shall
indemnify the Administrative Agent fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax or otherwise, including
penalties and interest, together with all expenses incurred, including legal
expenses, allocated staff costs and any out of pocket expenses.
(c) If any Lender sells, assigns, grants a participation in,
or otherwise transfers its rights under this Agreement, the purchaser,
assignee, participant or transferee, as applicable, shall comply and be bound
by the terms of Sections 2.20(f) and 2.20(g) and this Section 9.12.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. (a) No amendment, supplement,
modification or waiver of any provision of this Agreement or any other Loan
Document shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders (or, with the written consent of the
Required Lenders, the Administrative Agent) and each Loan Party party thereto.
Notwithstanding the foregoing but subject to the Borrower's rights under
Section 2.25, no such waiver and no such amendment, supplement or modification
shall (i) forgive the principal amount or extend the final scheduled date of
maturity of any Loan or Reimbursement Obligation, extend the scheduled date of
any amortization payment in respect of any Term Loan, reduce the stated rate
of any interest or fee payable hereunder or forgive the payment of any
interest or fee payable hereunder or extend the scheduled date of any payment
of any interest or fee payable hereunder, in each case without the consent of
each Lender (other than a Defaulting Lender) directly affected thereby (such
consent being in lieu of the consent of the Required Lenders) or increase the
amount or extend the expiration date of any Commitment of any Lender without
the consent of such Lender (such consent being in lieu of the consent of the
Required Lenders); (ii) amend, modify or waive any provision of this Section
10.1(a) or reduce any percentage or number specified in the definition of
Required Lenders, Required Facility Lenders, Applicable Facility Lenders,
Majority of the Arrangers or Majority Initial Lending Institutions, consent to
the assignment or transfer by any Loan Party, the Completion Guarantor or Wynn
Resorts Holdings of any of its rights and obligations under this Agreement and
the other Loan Documents, amend, supplement, modify or waive Section 2.12(e),
release all or substantially all of the Collateral or release a significant
Guarantor from its guarantee obligations under the Guarantee, in each case
without the consent of all Lenders (other than Defaulting Lenders); (iii)
amend, modify or waive any provision of Section 9 without the consent of any
Arranger, Agent, Manager or Initial Lending Institution directly affected
thereby (in addition to the consent of the Required Lenders); (iv) amend,
modify or waive any provision of Section 2.6 or 2.7 without the written
consent of the Swing Line Lender (in addition to the consent of the Required
Lenders); (v) amend, modify or waive any provision of Section 2.12(g) or
Section 2.18 without the consent of the Required Facility Lenders with respect
to the Facility directly affected thereby (such consent being in lieu of the
consent of the Required Lenders); (vi) amend, modify or waive any provision of
Section 3 without the consent of the Issuing Lender (in addition to the
consent of the Required Lenders), (vii) amend, modify or waive any condition,
provision or requirement to the funding of Loans (or the release of the
proceeds thereof pursuant to the Disbursement Agreement) or the issuance or
amendment of Letters of Credit without, in each case, the consent of (I) in
the case of Term Loans, the Required Facility Lenders with respect to the Term
Loan Facility and (II) in the case of Revolving Credit Loans or the issuance
or amendment of Letters of Credit, the Required Facility Lenders with respect
to the Revolving Credit Facility (in each case such consent being in lieu of
the consent of the Required Lenders), (viii) amend, modify or waive any
provision of Section 2.4.1 of the Disbursement Agreement without the written
consent of all Lenders (other than Defaulting Lenders), (ix) amend, modify or
waive Section 2.1(b) without the consent of each Term Loan Lender (such
consent being in lieu of the consent of the Required Lenders) or (x) amend,
modify or waive Section 7.23 without the consent of the Majority of the
Arrangers in consultation with the Construction Consultant (such consent being
in lieu of the consent of the Required Lenders); provided, however, that to
the extent that (A) determinations, waivers or amendments pursuant to the
Initial Lending Institution Provisions are to be made by the Initial Lending
Institutions or (B) determinations, waivers or amendments pursuant to the
Disbursement Agreement are to be made by the Majority of the Arrangers, such
determinations shall be made at the sole discretion of the Majority Initial
Lending Institutions and the Majority of the Arrangers, respectively, and
shall not require the consent of any other Lender pursuant to this Section
10.1 or otherwise; provided that if any such determinations, waivers or
amendments are not made by the Initial Lending Institutions or the Majority of
the Arrangers, respectively, then any such determinations, waivers or
amendments may be made with the approval of the Required Lenders. Any such
waiver and any such amendment, supplement, modification or determination shall
apply equally to each of the Lenders and shall be binding upon the Loan
Parties, the Lenders, the Agents, the Arrangers, the Managers and all future
holders of the Loans and Letters of Credit. In the case of any waiver, the
Loan Parties, the Lenders, the Arrangers, the Managers and the Agents shall be
restored to their former position hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
waived and not continuing; but no such waiver shall extend to any subsequent
or other Default or Event of Default, or impair any right consequent thereon.
Any such waiver, amendment, supplement or modification shall be effected by a
written instrument signed by the parties required to sign pursuant to the
foregoing provisions of this Section 10.1; provided, that delivery of an
executed signature page of any such instrument by facsimile transmission shall
be effective as delivery of a manually executed counterpart thereof.
Notwithstanding the foregoing but subject to determinations to be made
pursuant to Sections 3.2.10, 5.1.4(b), 8.1 and 9.6 of the Disbursement
Agreement, the definition of "Consent" set forth in the Disbursement Agreement
and Exhibit L to the Disbursement Agreement, which in each case shall be made
in the sole discretion of the Administrative Agent, to the extent the
Administrative Agent is entitled or required to make any determinations
(whether a consent, waiver or otherwise) under the Intercreditor Agreement or
the Disbursement Agreement, the Administrative Agent shall make such
determinations upon the advice of the Required Lenders
(b) Notwithstanding anything to the contrary in this Section
10.1, (i) the parties to the Administrative Agent Fee Letter and the Facility
Fee Letter may, (A) enter into written amendments, supplements or
modifications to the Administrative Agent Fee Letter or the Facility Fee
Letter, as the case may be (including amendments and restatements thereof),
for the purpose of adding any provisions thereto or changing in any manner the
rights thereunder of the parties thereto or (B) waive, on such terms and
conditions as may be specified in the instrument of waiver, (1) any of the
requirements of the Administrative Agent Fee Letter or the Facility Fee
Letter, as the case may be, or (2) any Default or Event of Default to the
extent (and only to the extent) relating to the Administrative Agent Fee
Letter or the Facility Fee Letter, it being understood that the waiver of any
Default or Event of Default (or portion thereof) relating to any of the other
Loan Documents may be accomplished only as set forth in the immediately
preceding paragraph, (ii) this Agreement and any other Loan Document may be
amended, amended and restated, modified or supplemented with the written
consent of the applicable Loan Parties and the Required Lenders (A) to
increase the aggregate Commitments of the Lenders, (B) to add one or more
additional credit facilities of Loans to this Agreement and to permit the
extensions of credit from time to time outstanding thereunder and the accrued
interest and fees in respect thereof to share ratably in the benefits of this
Agreement and other Loan Documents with the other then outstanding Obligations
and (C) to include appropriately the lenders holding such additional credit
facilities in any determination of the Required Lenders, Required Facility
Lenders and Applicable Facility Lenders and (iii) any Permitted C-Corp.
Conversion shall require the consent of the Required Lenders only.
(c) The Borrower and the other Loan Parties may, in whole or
in part, design, develop and construct the Phase II Project as any one or more
of the following: (i) a condominium development, (ii) a timeshare development
or (iii) such other development pursuant to which the Borrower and the other
Loan Parties would Dispose of units and/or other ownership interests in the
Phase II Project to the public for residential and/or vacation/resort living.
The parties agree that any such Dispositions shall not be considered
Disposition of inventory in the ordinary course of business. In order to
accommodate the Disposition of units in the Phase II Project as described
above, certain amendments to this Agreement and the other Loan Documents may
be necessary. The parties agree that any Disposition of units and/or other
ownership interests in the Phase II Project as described above would not
constitute a release of all or substantially all of the Collateral in
accordance with Section 10.1(a)(ii) and any such Disposition shall require the
consent of the Required Lenders only.
10.2 Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including
by telecopy), and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made when delivered, or three Business Days after
being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed (a) in the case of the Borrower, the
Arrangers, the Managers and the Agents, as follows and (b) in the case of the
Lenders, as set forth on Schedule I to the Lender Addendum to which such
Lender is a party or, in the case of a Lender which becomes a party to this
Agreement pursuant to an Assignment and Acceptance, in such Assignment and
Acceptance or (c) in the case of any party, to such other address as such
party may hereafter notify to the other parties hereto:
The Borrower: Wynn Las Vegas, LLC
3131 Las Vegas Boulevard, South
Las Vegas, Nevada 89109
Attention: President
Telecopy: (702) 770-1100
Telephone: (702) 770-7700
with a copy to: Wynn Las Vegas, LLC
3131 Las Vegas Boulevard, South
Las Vegas, Nevada 89109
Attention: General Counsel
Telecopy: (702) 770-1520
Telephone: (702) 770-2111
with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071
Attention: Jerome L. Coben, Esq.
Telecopy: (213) 621-5010
Telephone: (213) 687-5000
The Administrative Agent Deutsche Bank Trust Company Americas
or Swing Line Lender: 200 Crescent Court
Suite 550
Dallas, Texas 75201
Attention: Gerald K. Dupont
Telecopy: (214) 740-7910
Telephone: (214) 740-7913
Deutsche Bank Securities Inc., 200 Crescent Court
as lead arranger and joint Suite 550
book running manager: Dallas, Texas 75201
Attention: Gerald K. Dupont
Telecopy: (214) 740-7910
Telephone: (214) 740-7913
Banc of America Securities 9 West 57th Street, 32nd Floor
LLC, lead arranger and joint New York, New York 10019
book running manager: Attention: Bruce Thompson
Telecopy: (212) 847-6441
Telephone: (212) 847-6456
Bank of America, N.A., as 1850 Gateway Boulevard
Syndication Agent CA 4-706-05-09
Concord, California 94520-3282
Attention: Nina Lemmer
Telecopy: (888) 969-9281
Telephone: (925) 675-7478
Bear, Stearns & Co. Inc., as 383 Madison Avenue, 8th Floor
arranger and joint book New York, New York 10179
running manager: Attention: Stephen O'Keefe
Telecopy: (212) 272-9184
Telephone: (212) 272-9430
Bear Stearns Corporate Lending 383 Madison Avenue, 8th Floor
Inc., as joint documentation agent: New York, New York 10179
Attention: Stephen O'Keefe
Telecopy: (212) 272-9184
Telephone: (212) 272-9430
J.P. Morgan Securities Inc., 277 Park Avenue and
as arranger joint book running New York, New York 10172
manager: Attention: Don Shokrian
Telecopy: (212) 534-0574
Telephone: (212) 622-2166
JPMorgan Chase Bank, N.A., as joint 277 Park Avenue
documentation agent: New York, New York 10172
Attention: Don Shokrian
Telecopy: (646) 534-0574
Telephone: (212) 622-2166
SG Americas Securities, LLC, as arranger 1221 Avenue of the Americas
and joint book running manager: New York, New York 10020
Attention: Michael Kim
Telecopy: (646) 534-0574
Telephone: (212) 278-5368
Societe Generale, as joint documentation 2001 Ross Avenue, Suite 4900
agent: Dallas, Texas 75201
Attention: Thomas Day
Telecopy: (214) 979-2727
Telephone: (214) 979-2774
in the case of any Agent, Manager or Latham & Watkins LLP
Arranger, with a copy to: 600 West Broadway, Suite 1800
San Diego, CA 92101
Attention: Brett Rosenblatt, Esq.
Telecopy: (619) 696-7419
Telephone: (619) 236-1234
Issuing Lender: As notified by the Issuing Lender to the
Administrative Agent and the Borrower
Notwithstanding the foregoing, each Lender agrees and acknowledges that any
notice, request, demand or other information to be delivered by the
Administrative Agent to such Lender pursuant to this Agreement or any of the
other Loan Documents (whether pursuant to Section 6.1, 6.2 or otherwise) shall
be effectively delivered to such Lender by the Administrative Agent posting
such notice, request, demand or other information to IntraLinks.
10.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of any Arranger, any Agent, any
Manager or any Lender, any right, remedy, power or privilege hereunder or
under the other Loan Documents shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder until
repayment of the Loans in full, no Letters of Credit remain outstanding
(unless otherwise cash collateralized pursuant to the terms of this Agreement)
and the termination of the Commitments.
10.5 Payment of Expenses; Indemnification. The Borrower
agrees (a) to pay or reimburse the Arrangers, the Agents, the Managers, the
Securities Intermediary and, with respect to the Initial Lending Institution
Provisions, the Initial Lending Institutions for all their reasonable and
itemized out-of-pocket costs and expenses incurred in connection with the
syndication of the Facilities (other than fees payable to syndicate members)
and the preparation, negotiation and execution of, and any amendment,
supplement or modification to, this Agreement and the other Loan Documents and
any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby (including, without limitation, the Arrangers' and Initial Lending
Institutions' administration and other actions in furtherance of Section 7.23,
the Disbursement Agreement and the Initial Lending Institution Provisions, as
the case may be) including, without limitation, the reasonable fees and
disbursements and other charges of the Collateral Agent, the Nevada Collateral
Agent and Latham & Watkins LLP, special counsel to the Administrative Agent
and the Disbursement Agent, and any local counsel in the State of Nevada
retained by the Administrative Agent and the charges of IntraLinks and the
fees, expenses and disbursements of the Construction Consultant and the
Insurance Advisor, (b) to pay or reimburse each Lender, Arranger, Manager and
Agent (after the occurrence of an Event of Default) for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the fees and disbursements of
counsel (including the allocated fees and disbursements and other charges of
in-house counsel) to each Lender and of counsel to each Arranger, Manager and
Agent and the charges of IntraLinks, (c) to pay, indemnify, and hold each
Lender, Arranger, Manager and Agent harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
Loan Party's delay in paying, stamp, excise and other taxes, if any, which may
be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any
waiver or consent under or in respect of, this Agreement, the other Loan
Documents and any such other documents and (d) to pay, indemnify, and hold
each Lender, Arranger, Agent, Manager, Securities Intermediary, their
respective affiliates, and their respective officers, directors, partners,
trustees, employees, affiliates, advisors, agents, attorneys-in-fact and
controlling persons (each, an "Indemnitee") harmless from and against any and
all other liabilities, obligations, losses, damages, penalties, actions,
judgments or suits, of any kind or nature whatsoever with respect to or
arising out of the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other
documents, including, without limitation, any of the foregoing relating to the
use of proceeds of the Loans or Letters of Credit, the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of any Loan Party or any of their Properties or the use by
unauthorized persons of information or other materials sent through
electronic, telecommunications or other information transmission systems that
are intercepted by such persons and the reasonable fees, costs and expenses
and disbursements and other charges of legal counsel in connection with
claims, actions or proceedings by any Indemnitee against the Borrower
hereunder (all the foregoing in this subsection (d), collectively, the
"Indemnified Liabilities"), provided, that the Borrower shall have no
obligation hereunder to any Indemnitee with respect to Indemnified Liabilities
to the extent such Indemnified Liabilities are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
solely from the gross negligence or willful misconduct of such Indemnitee in
breach of a duty owed to the Borrower. All amounts due under this Section
shall be payable not later than five Business Days after written demand
therefor. Statements payable by the Borrower pursuant to this Section shall be
submitted to the Borrower in accordance with Section 10.2, or to such other
Person or address as may be hereafter designated by the Borrower in a written
notice to the Administrative Agent. The agreements in this Section shall
survive repayment of the Loans and Letters of Credit and all other amounts
payable hereunder.
10.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Arrangers, the Agents, the Managers, all future
holders of the Loans and Letters of Credit and their respective successors and
assigns, except that the Borrower may not assign or transfer any of its rights
or obligations under this Agreement without the prior written consent of the
Administrative Agent and each Lender. No Lender may assign its rights and
obligations under this Agreement, except as provided in this Section 10.6. Any
purported sale, assignment, participation or other transfer by any Lender of
any of its rights or obligations hereunder, other than as expressly permitted
under this Section 10.6, shall be null and void and of no force and effect.
(b) Any Lender may, without the consent of the Borrower or
any other Person, in accordance with applicable law, at any time sell to one
or more banks, financial institutions or other entities (each, a
"Participant") participating interests in any Loan owing to such Lender, any
Commitment of such Lender or any other interest of such Lender hereunder and
under the other Loan Documents. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such
Lender shall remain the holder of any such Loan for all purposes under this
Agreement and the other Loan Documents, and the Borrower, the Arrangers, the
Agents and the Managers shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. In no event shall any Participant
under any such participation have any right to approve any amendment or waiver
of any provision of any Loan Document, or any consent to any departure by any
Loan Party therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Loans or any fees
payable hereunder, or postpone the date of the final maturity of the Loans, in
each case to the extent subject to such participation. The Borrower agrees
that if amounts outstanding under this Agreement and the Loans are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, provided that, in purchasing
such participating interest, such Participant shall be deemed to have agreed
to share with the Lenders the proceeds thereof as provided in Section 10.7(a)
as fully as if it were a Lender hereunder. The Borrower also agrees that each
Participant shall be entitled to the benefits of Sections 2.19, 2.20 and 2.21
with respect to its participation in the Commitments and the Loans outstanding
from time to time as if it was a Lender; provided, that, in the case of
Section 2.20, such Participant shall have fully complied with the requirements
of Section 2.20 and provided, further, that no Participant shall be entitled
to receive any greater amount pursuant to Section 2.19, 2.20 or 2.21 than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance with
applicable law and upon written notice to the Administrative Agent, at any
time and from time to time assign to any Lender, any Affiliate of the
assigning Lender or of another Lender or any Affiliated Fund of the assigning
Lender or of another Lender (provided, that if any funding obligations are
assigned to such an Affiliate or such an Affiliated Fund, such Affiliate or
Affiliated Fund, as applicable, shall have demonstrable resources to comply
with such obligations) or, with the consent of the Borrower and the
Administrative Agent and, in the case of any assignment of Revolving Credit
Commitments, the written consent of the Issuing Lender and the Swing Line
Lender (which, in the case of the Borrower, the Administrative Agent, the
Issuing Lender and the Swing Line Lender, shall not be unreasonably withheld,
conditioned or delayed), to an additional bank, financial institution or other
entity that is an Eligible Assignee (an "Assignee") all or any part of its
rights and obligations under this Agreement pursuant to an assignment and
acceptance agreement, in the form of Exhibit E hereto (an "Assignment and
Acceptance"), executed by such Assignee and such Assignor (and, where the
consent of the Borrower, the Administrative Agent or the Issuing Lender or the
Swing Line Lender is required pursuant to the foregoing provisions, by the
Borrower and such other Persons) and delivered to the Administrative Agent for
its acceptance and recording in the Register; provided, that no such
assignment to an Assignee (other than any Lender or any Affiliate of the
assigning Lender or of another Lender or Affiliated Fund of the assigning
Lender or of another Lender) shall be in an aggregate principal amount of less
than $5,000,000 with respect to Revolving Credit Commitments or $1,000,000
with respect to Term Loan Commitments, unless otherwise agreed by the Borrower
and the Administrative Agent (provided, that for purposes of the foregoing
limitations only, any two or more funds that concurrently invest in Loans and
are managed by the same investment advisor, or investment advisors that are
Affiliates of one another, shall be treated as a single Assignee). Any such
assignment need not be ratable as among the Facilities. Upon such execution,
delivery, acceptance and recording, from and after the effective date
determined pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment and/or Loans as set forth therein and (y) the
Assignor thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of an Assignor's rights and
obligations under this Agreement, such Assignor shall cease to be a party
hereto). Notwithstanding any provision of this Section, the consent of the
Borrower shall not be required for any assignment that occurs at any time when
any Event of Default shall have occurred and be continuing.
(d) The Administrative Agent shall, on behalf of the
Borrower, maintain at its address referred to in Section 10.2 a copy of each
Assignment and Acceptance delivered to it and a register (the "Register") for
the recordation of the names and addresses of the Lenders and the Commitment
of, and principal amount of the Loans owing to, each Lender from time to time.
The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, the Administrative Agent and the Lenders shall treat
each Person whose name is recorded in the Register as the owner of the Loans
and any Notes evidencing such Loans recorded therein for all purposes of this
Agreement. Any assignment of any Loan, whether or not evidenced by a Note,
shall be effective only upon appropriate entries with respect thereto being
made in the Register (and each Note shall expressly so provide). Any
assignment or transfer of all or part of a Loan evidenced by a Note shall be
registered on the Register only upon surrender for registration of assignment
or transfer of the Note evidencing such Loan, accompanied by a duly executed
Assignment and Acceptance; thereupon one or more new Notes in the same
aggregate principal amount shall be issued to the designated Assignee, and the
old Notes shall be returned by the Administrative Agent to the Borrower marked
"canceled". The Register shall be available for inspection by the Borrower or
any Lender (with respect to any entry relating to such Lender's Loans) at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance
executed by an Assignor and an Assignee (and, in any case where the consent of
any other Person is required by Section 10.6(c), by each such other Person)
together with payment by the Assignee or the Assignor to the Administrative
Agent of a registration and processing fee of $3,500 (except that no such
registration and processing fee shall be payable in the case of an Assignee
which is already a Lender or is an Affiliate of the assigning Lender or of
another Lender or an Affiliated Fund of the assigning Lender or of another
Lender or with respect to the initial syndication of the Commitments), the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such
acceptance and recordation to the Borrower. On or prior to such effective
date, the Borrower, at its own expense, upon request, shall execute and
deliver to the Administrative Agent (in exchange for the Revolving Credit Note
and/or Term Note, as the case may be, of the assigning Lender) a new Revolving
Credit Note and/or Term Note, as the case may be, to such Assignee or its
registered assigns in an amount equal to the Revolving Credit Commitment
and/or Term Loan Commitment, as the case may be, assumed or acquired by it
pursuant to such Assignment and Acceptance and, if the Assignor has retained a
Revolving Credit Commitment and/or Term Loan Commitment, as the case may be,
upon request, a new Revolving Credit Note and/or Term Notes, as the case may
be, to the Assignor or its registered assigns in an amount equal to the
Revolving Credit Commitment and/or Term Loans or Term Loan Commitment, as the
case may be, retained by it hereunder. Such new Note or Notes shall be in the
form of the Note or Notes replaced thereby.
(f) For the avoidance of doubt, the parties to this
Agreement acknowledge that the provisions of this Section concerning
assignments of Loans and Notes relate only to absolute assignments and that
such provisions do not prohibit assignments creating security interests,
including, without limitation, any pledge or assignment by a Lender of any
Loan or Note to any Federal Reserve Bank in accordance with applicable law.
10.7 Adjustments; Set-off. (a) Except to the extent that
this Agreement provides for payments to be allocated to a particular Lender or
to the Lenders under a particular Facility, if any Lender (a "Benefited
Lender") shall at any time receive any payment of all or part of the
Obligations owing to it, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 8(f), or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any,
in respect of such other Lender's Obligations, such Benefited Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Obligations, or shall provide such other
Lenders with the benefits of any such collateral, as shall be necessary to
cause such Benefited Lender to share the excess payment or benefits of such
collateral ratably with each of the Lenders; provided, however, that if all or
any portion of such excess payment or benefits is thereafter recovered from
such Benefited Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of an Event of
Default each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise), to set off and appropriate and apply against such amount any and
all deposits (general or special, time or demand, provisional or final), in
any currency, and any other credits, indebtedness or claims, in any currency,
in each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender
agrees to notify promptly the Borrower and the Administrative Agent after any
such setoff and application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such setoff and application.
10.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. Delivery of an executed signature page of this
Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
10.9 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
10.10 Integration. Other than the promises, undertakings,
representations or warranties set forth in the Administrative Agent Fee Letter
and the Facility Fee Letter, this Agreement and the other Loan Documents
represent the agreement of the Borrower, the Agents, the Arrangers, the
Managers and the Lenders with respect to the subject matter hereof, and there
are no promises, undertakings, representations or warranties by any Arranger,
any Manager, any Agent or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF OTHER THAN SECTIONS 5-1401
AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
10.12 Submission To Jurisdiction; Waivers. The Borrower
hereby irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action
or proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State
of New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(b) to the extent permitted by applicable law, consents that
any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in
an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid,
to the Borrower at its address set forth in Section 10.2 or at such other
address of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section 10.12 any special, punitive or consequential
damages.
10.13 Certain Matters Affecting Lenders. (a) If (i) the
Nevada Gaming Authorities shall determine that any Lender does not meet
suitability standards prescribed under the Nevada Gaming Laws or (ii) any
other gaming authority with jurisdiction over the gaming business of the
Borrower shall determine that any Lender does not meet its suitability
standards (in any such case, a "Former Lender"), the Administrative Agent
shall have the right (but not the duty) to designate bank(s) or other
financial institution(s) (in each case, a "Substitute Lender") that agree to
become a Substitute Lender and to assume the rights and obligations of the
Former Lender, subject to receipt by the Administrative Agent of evidence that
such Substitute Lender (if not a Lender or Lenders or Affiliated Fund of a
Lender) is an Eligible Assignee. The Substitute Lender shall assume the rights
and obligations of the Former Lender under this Agreement. The Borrower shall
bear the reasonable costs and expenses of any Lender required by the Nevada
Gaming Authorities, or any other gaming authority with jurisdiction over the
gaming business of the Borrower, to file an application for a finding of
suitability in connection with the investigation of an application by the
Borrower for a license to operate a gaming establishment. In the event a
Former Lender is replaced by a Substitute Lender in accordance with this
Section 10.13(a), the Borrower and the Substitute Lender shall pay to the
Former Lender (or the Administrative Agent pursuant to Section 10.6) all
amounts that would have been required to be paid pursuant to Section 2.25 had
such Former Lender been replaced in accordance with such provisions.
(b) Notwithstanding the provisions of subsection (a) of this
Section 10.13, if any Lender becomes a Former Lender, and if the
Administrative Agent fails to find a Substitute Lender pursuant to subsection
(a) of this Section 10.13 within any time period specified by the appropriate
gaming authority for the withdrawal of a Former Lender (the "Withdrawal
Period"), the Borrower shall immediately prepay in full the outstanding amount
of all Revolving Extensions of Credit and Term Loans Extensions of Credit of
such Former Lender, together with accrued interest thereon to the earlier of
(x) the date of payment or (y) the last day of the applicable Withdrawal
Period and any other amounts that would have been required to be paid to such
Former Lender pursuant to Section 2.25 had such Former Lender been replaced in
accordance with such provisions.
(c) Upon the prepayment of all amounts owing to any Lender
in accordance with this Section 10.13, such replaced Lender shall no longer
constitute a "Lender" for purposes hereof; provided, any rights of such Lender
to indemnification hereunder shall survive as to such Lender.
10.14 Acknowledgments. The Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither any Arranger, any Agent, any Manager nor any
Lender has any fiduciary relationship with or duty to the Borrower, the
Completion Guarantor or any other Loan Party arising out of or in connection
with this Agreement or any of the other Loan Documents, and the relationship
between the Arrangers, the Agents, the Managers and the Lenders, on one hand,
and the Borrower, the Completion Guarantor any other Loan Party, on the other
hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Arrangers, the Agents, the Managers and the Lenders or among
the Borrower, the Completion Guarantor, the other Loan Parties and the
Lenders.
10.15 Confidentiality. Subject to Section 10.21, each of the
Arrangers, the Agents, the Managers and the Lenders agrees to keep
confidential all non-public information provided to it by any Loan Party
pursuant to this Agreement; provided, that nothing herein shall prevent any
Arranger, any Agent, any Manager or any Lender from disclosing any such
information (a) to any Arranger, any Agent, any Manager, any other Lender or
any affiliate of any thereof, (b) to any Participant or Assignee (each, a
"Transferee") or prospective Transferee that agrees to comply with the
provisions of this Section 10.15, (c) to any of its or its Affiliates'
employees, directors, agents, auditors, regulators, attorneys, accountants and
other professional advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
information and instructed to keep such information confidential in accordance
with this Section 10.15), (d) to any financial institution that is a direct or
indirect contractual counterparty in swap agreements or such contractual
counterparty's professional advisor (so long as such contractual counterparty
or professional advisor to such contractual counterparty agrees to be bound by
the provisions of this Section 10.15), (e) upon the request or demand of any
Governmental Authority having jurisdiction over it, (f) in response to any
order of any court or other Governmental Authority or as may otherwise be
required pursuant to any Requirement of Law, (g) if required to do so in
connection with any litigation or similar proceeding, (h) that has been
publicly disclosed other than in breach of this Section 10.15, (i) to the
National Association of Insurance Commissioners or any similar organization or
any nationally recognized rating agency that requires access to information
about a Lender's investment portfolio in connection with ratings issued with
respect to such Lender or (j) in connection with the exercise of any remedy
hereunder or under any other Loan Document. In the event any confidential or
non-public information is disclosed pursuant to clauses (e), (f) or (g) above,
the applicable Arranger, Agent, Manager or Lender, as the case may be, shall
give the Borrower notice thereof.
10.16 Release of Collateral and Guarantee Obligations.
Notwithstanding anything to the contrary contained herein or in any other Loan
Document, upon request of the Borrower in connection with any Disposition of
Property permitted by the Loan Documents, the Administrative Agent shall (or
shall direct the Collateral Agent or other applicable Person to, in either
case, without notice to or vote or consent of any Lender, or any affiliate of
any Lender that is a party to any Specified Hedge Agreement) take such actions
as shall be required to release its security interest in any Collateral being
Disposed of in such Disposition, and to release any guarantee obligations of
any Person being Disposed of in such Disposition, to the extent necessary to
permit consummation of such Disposition in accordance with the Loan Documents
provided that the Borrower and, if applicable, the appropriate Loan Party
shall have delivered to the Administrative Agent, at least five Business Days
prior to the date of the proposed release (or such shorter period as agreed to
by the Administrative Agent), a written request for release identifying the
relevant Collateral being Disposed of in such Disposition and the terms of
such Disposition in reasonable detail, including the date thereof, the price
thereof and any expenses in connection therewith, together with a
certification by the Borrower and, if applicable, the appropriate Loan Party
stating that such transaction is in compliance with this Agreement and the
other Loan Documents and that the proceeds of such Disposition will be applied
in accordance with this Agreement and the other Loan Documents. At such time
as the Loans, the Reimbursement Obligations and the other Obligations (other
than obligations under or in respect of Hedging Agreements) shall have been
paid in full in cash, the Commitments have terminated and no Letters of Credit
shall be outstanding which have not been cash collateralized to the
satisfaction of the Issuing Lender, the Collateral shall be automatically
released from the Liens created by the Security Documents for the benefit of
the Secured Parties and the obligations (other than those expressly stated to
survive such termination) of the Administrative Agent, the Collateral Agent
and each Loan Party under the Security Documents, in each case incurred in
connection with the Obligations hereunder, shall automatically terminate, all
without delivery of any instrument or performance of any act by any Person.
10.17 Accounting Terms and Changes. Financial statements and
other information required to be delivered by the Borrower pursuant to Section
6.1 shall be prepared in accordance with GAAP as in effect at the time of such
preparation; provided that calculations in connection with the definitions,
covenants and other provisions of this Agreement shall continue to be
calculated and determined on the basis of such principles in effect on the
date hereof and consistent with those used in the preparation of the most
recent audited financial statements delivered pursuant to Section 4.1, unless
otherwise modified pursuant to this Section 10.17 In the event that any
"Accounting Change" (as defined below) shall occur and such change results in
a change in the method of calculation of definitions, covenants and other
provisions of this Agreement, then the Borrower and the Administrative Agent
agree to enter into negotiations in order to amend such provisions of this
Agreement so as to equitably reflect such Accounting Changes with the desired
result that the criteria for evaluating the Borrower's and the other Loan
Parties' financial condition (including the requirements and restrictions
associated with the provisions of this Agreement applicable thereto) shall be
the same after such Accounting Changes as if such Accounting Changes had not
been made. Until such time as such an amendment shall have been executed and
delivered by the Borrower, the Administrative Agent and the Required Lenders,
all definitions, covenants and other provisions of this Agreement shall
continue to be calculated or construed as if such Accounting Changes had not
occurred. "Accounting Changes" refers to changes in accounting principles
required or permitted by the promulgation of any rule, regulation,
pronouncement or opinion by the Financial Accounting Standards Board of the
American Institute of Certified Public Accountants or, if applicable, the SEC.
10.18 Delivery of Lender Addenda. Each initial Lender shall
become a party to this Agreement by delivering to the Administrative Agent a
Lender Addendum duly executed by such Lender, the Borrower and the
Administrative Agent.
10.19 Construction. Each covenant contained herein shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to
action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
10.20 WAIVERS OF JURY TRIAL. THE BORROWER, THE ARRANGERS,
THE AGENTS, THE MANAGERS AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.21 Gaming Authorities. The Arrangers, the Agents, the
Managers and each Lender agree to cooperate with the Nevada Gaming Authorities
in connection with the administration of their regulatory jurisdiction over
Wynn Resorts, the Borrower and the other Loan Parties, including, without
limitation, to the extent not inconsistent with the internal policies of such
Lender, Arranger, Agent or Manager and any applicable legal or regulatory
restrictions, the provision of such documents or other information as may be
requested by any such Nevada Gaming Authorities relating to the Arrangers, the
Agents, the Managers, any of the Lenders, Wynn Resorts or the Borrower or any
other Loan Party, or the Loan Documents. Notwithstanding any other provision
of this Agreement, the Borrower expressly authorizes, and will cause each
other Loan Party to authorize, each Agent, Manager, Arranger and Lender to
cooperate with the Nevada Gaming Authorities as described above.
10.22 Release of Golf Course Collateral. Upon the request of
the Borrower made at such time as the conditions set forth in clauses (i)
through (iv) of the proviso contained in clause (k) of Section 7.5 are
satisfied and so long as not prohibited by the Financing Agreements, the
Administrative Agent shall (or shall direct the Collateral Agent or other
applicable Person to, in either case, without notice to or vote or consent of
any Lender, or any affiliate of any Lender that is a party to any Specified
Hedge Agreement) take such actions as shall be required to release its
security interest in any Golf Course Collateral, and to release any guarantee
obligations of Wynn Golf. In connection therewith, the Administrative Agent
shall (or shall direct the Collateral Agent or other applicable Person to)
execute and deliver to the applicable Loan Parties such documents and
instruments, including UCC-3 termination statements, deeds of reconveyance and
certificates of Capital Stock, all as may be reasonably requested by the Loan
Parties to release the Liens granted for the benefit of the Secured Parties in
the Golf Course Collateral and to effectuate the release of Wynn Golf's
guarantee of the Obligations. After the consummation of the actions set forth
in this Section 10.22, Wynn Golf shall no longer be deemed a "Loan Party" for
purposes of this Agreement or the other Loan Documents. As soon as is
reasonably practicable after the release of the Golf Course Collateral in
accordance with this Section 10.22, the Borrower shall (or shall cause the
applicable Loan Parties to) Dispose of the Golf Course Collateral and/or
distribute the Capital Stock of Wynn Golf to any Person other than Wynn
Resorts Holdings or any other Loan Party (unless, in the case of Wynn Resorts
Holdings or another Loan Party, such Person is acting as an intermediary for
purposes of distributing the Capital Stock of Wynn Golf as otherwise so
required).
10.23 Release of Aircraft Related Security. In the event any
agreement, document or other instrument related to Indebtedness permitted by
Section 7.2(c) requires that any Lien attach to the Capital Stock of the Loan
Party that either directly owns the Aircraft or owns the beneficial interest
in any trust that owns the Aircraft, in either case to the extent permitted
pursuant to Section 7.3(j), upon the request of the Borrower and so long as
not prohibited by the Financing Agreements, the Administrative Agent shall (or
shall direct the Collateral Agent or other applicable Person to, in either
case, without notice to or vote or consent of any Lender, or any affiliate of
any Lender that is a party to any Specified Hedge Agreement) take such actions
as shall be required to release its security interest in the Capital Stock of
such Loan Party and all other Property of the Loan Party and to release any
guarantee obligations of such Loan Party. In connection therewith, the
Administrative Agent shall (or shall direct the Collateral Agent or other
applicable Person to) execute and deliver to the applicable Loan Party such
documents and instruments, including UCC-3 termination statements and
certificates of Capital Stock, all as may be reasonably requested by such Loan
Party to release the Liens granted for the benefit of the Secured Parties in
the in the Capital Stock of such Loan Party and all other Property of such
Loan Party and to effectuate the release of such Loan Party's guarantee of the
Obligations.
10.24 Third Party Beneficiaries. Subject to the following
sentence, this Agreement is entered into for the benefit of the parties hereto
only and no other party shall be entitled to enforce any provision hereof or
otherwise be a third party beneficiary hereunder. Notwithstanding the
foregoing, the Collateral Agent, the Disbursement Agent and the Securities
Intermediary shall be deemed third party beneficiaries under Section 9 and
10.5 only and shall be entitled to enforce such provisions to the extent
applicable to such Persons.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
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: Wynn Resorts Limited,
a Nevada corporation,
its sole member
By: /s/ Ronald J. Kramer
-----------------------
Name: Ronald J. Kramer
Title: President
DEUTSCHE BANK SECURITIES, INC.,
as Lead Arranger and Joint Book Running
Manager
By: /s/ Alexander B.V. Johnson
-----------------------------------
Name: Alexander B.V. Johnson
Title: Managing Director
By: /s/ Brenda Casey
-----------------------------------
Name: Brenda Casey
Title: Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent, Issuing Lender
and Swing Line Lender
By: /s/ Alexander B.V. Johnson
-----------------------------------
Name: Alexander B.V. Johnson
Title: Managing Director
By: /s/ Brenda Casey
-----------------------------------
Name: Brenda Casey
Title: Vice President
BANC OF AMERICA SECURITIES LLC,
as Lead Arranger and Joint Book Running
Manager
By: /s/ Scott L. Faber
-----------------------------------
Name: Scott L. Faber
Title: Managing Director
BANK OF AMERICA, N.A.,
as Syndication Agent
By: /s/ Jeff Susman
-----------------------------------
Name: Jeff Susman
Title: Senior Vice President
BEAR, STEARNS & Co. Inc.,
as Arranger and Joint Book Running Manager
By: /s/ Keith Barnish
-----------------------------------
Name: Keith Barnish
Title: Senior Managing Director
BEAR STEARNS CORPORATE LENDING INC.,
as Joint Documentation Agent
By: /s/ Keith Barnish
-----------------------------------
Name: Keith Barnish
Title: Senior Managing Director
J.P. MORGAN SECURITIES INC.,
as Arranger and Joint Book Running Manager
By: /s/ Eric Tanjeloff
-----------------------------------
Name: Eric Tanjeloff
Title: Vice President
JPMORGAN CHASE BANK, N.A.,
as Joint Documentation Agent
By: /s/ Donald S. Shokrian
-----------------------------------
Name: Donald S. Shokrian
Title: Managing Director
SG AMERICAS SECURITIES, LLC
as Arranger and Joint Book Running Manager
By: /s/ Michael S. Kim
-----------------------------------
Name: Michael S. Kim
Title: Managing Director
SOCIETE GENERALE,
as Joint Documentation Agent
By: /s/ Thomas K. Day
-----------------------------------
Name: Thomas K. Day
Title: Managing Director
S-7.3(f)
SD\460828.17
Exhibit 10.3
=======================================================
MASTER DISBURSEMENT AGREEMENT
among
WYNN LAS VEGAS, LLC,
as the Company,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as the Bank Agent,
U.S. BANK NATIONAL ASSOCIATION,
as the 2014 Notes Indenture Trustee,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as the Disbursement Agent
=======================================================
TABLE OF CONTENTS
PAGE
ARTICLE 1. - definitions; rules of interpretation.................................................................6
1.1 Definitions.....................................................................................6
1.2 Rules of Interpretation.........................................................................6
ARTICLE 2. - ACCOUNTS, ADVANCES AND DISBURSEMENTS.................................................................6
2.1 Availability of Advances........................................................................6
2.2 Company Accounts................................................................................6
2.3 Mechanics for Obtaining Advances................................................................6
2.4 Order of Sources of Funding.....................................................................6
2.5 Disbursements...................................................................................6
2.6 Phase I Substantial Completion Date Procedures..................................................6
2.7 Completion Date Procedures......................................................................6
2.8 Completion Guaranty Release Procedures..........................................................6
2.9 Final Completion Procedures.....................................................................6
2.10 No Approval of Work.............................................................................6
2.11 Security........................................................................................6
ARTICLE 3. - CONDITIONS PRECEDENT TO THE CLOSING DATE, Phase II Approval Date AND ADVANCES.......................6
3.1 Conditions Precedent to the Closing Date........................................................6
3.2 Conditions Precedent to Advances to the Phase I Project and, After Phase II Approval
Date, the Phase II Project......................................................................6
3.3 Conditions Precedent to Advances for Phase II Project Prior to Phase II Approval Date...........6
3.4 Conditions Precedent to Phase II Approval Date..................................................6
3.5 No Waiver or Estoppel...........................................................................6
3.6 Waiver of Conditions............................................................................6
3.7 Special Procedures Regarding Reimbursements to Company and its Affiliates.......................6
ARTICLE 4. - REPRESENTATIONS AND WARRANTIES.......................................................................6
4.1 Permits.........................................................................................6
4.2 In Balance Requirement..........................................................................6
4.3 Sufficiency of Interests and Project Documents..................................................6
4.4 Project Budget; Summary Anticipated Cost Report.................................................6
4.5 Project Schedule................................................................................6
4.6 Plans and Specifications........................................................................6
ARTICLE 5. - AFFIRMATIVE COVENANTS................................................................................6
5.1 Use of Proceeds.................................................................................6
5.2 Diligent Construction of the Projects...........................................................6
5.3 Reports; Cooperation............................................................................6
5.4 Notices.........................................................................................6
5.5 Certain Transfers from Company Accounts.........................................................6
5.6 Material Project Documents and Permits..........................................................6
5.7 Storage Requirements for Off-Site Materials and Deposits........................................6
5.8 Plans and Specifications........................................................................6
5.9 Payment and Performance Bonds...................................................................6
5.10 Retainage Amounts...............................................................................6
5.11 Construction Consultant.........................................................................6
5.12 Governmental and Environmental Reports..........................................................6
5.13 Insurance.......................................................................................6
5.14 Application of Insurance and Condemnation Proceeds..............................................6
5.15 Compliance with Material Project Documents......................................................6
5.16 Utility Easement Modifications..................................................................6
5.17 Construction on Site............................................................................6
ARTICLE 6. - NEGATIVE COVENANTS...................................................................................6
6.1 Waiver, Modification, Termination and Amendment of Permits and Contracts........................6
6.2 Scope Changes; Completion; Drawings.............................................................6
6.3 Project Budget and Project Schedule Amendment...................................................6
6.4 Opening.........................................................................................6
6.5 Additional Construction Agreements..............................................................6
6.6 Unincorporated Materials........................................................................6
ARTICLE 7. - EVENTS OF DEFAULT....................................................................................6
7.1 Events of Default...............................................................................6
7.2 Remedies........................................................................................6
ARTICLE 8. - CONSULTANTS AND REPORTS..............................................................................6
8.1 Removal and Fees................................................................................6
8.2 Duties..........................................................................................6
8.3 Acts of Disbursement Agent......................................................................6
ARTICLE 9. - THE DISBURSEMENT AGENT...............................................................................6
9.1 Appointment and Acceptance......................................................................6
9.2 Duties and Liabilities of the Disbursement Agent Generally......................................6
9.3 Particular Duties and Liabilities of the Disbursement Agent.....................................6
9.4 Segregation of Funds and Property Interest......................................................6
9.5 Compensation and Reimbursement of the Disbursement Agent........................................6
9.6 Qualification of the Disbursement Agent.........................................................6
9.7 Resignation and Removal of the Disbursement Agent...............................................6
9.8 Merger or Consolidation of the Disbursement Agent...............................................6
9.9 Statements; Information.........................................................................6
9.10 Limitation of Liability.........................................................................6
ARTICLE 10. - SAFEKEEPING OF ACCOUNTS.............................................................................6
10.1 Application of Funds in Company Accounts........................................................6
10.2 Event of Default................................................................................6
10.3 Liens...........................................................................................6
10.4 Perfection......................................................................................6
ARTICLE 11. - MISCELLANEOUS.......................................................................................6
11.1 Addresses.......................................................................................6
11.2 Delay and Waiver................................................................................6
11.3 Entire Agreement................................................................................6
11.4 Governing Law...................................................................................6
11.5 Severability....................................................................................6
11.6 Headings........................................................................................6
11.7 Limitation on Liability.........................................................................6
11.8 Waiver of Jury Trial............................................................................6
11.9 Consent to Jurisdiction.........................................................................6
11.10 Successors and Assigns..........................................................................6
11.11 Reinstatement...................................................................................6
11.12 No Partnership; Etc.............................................................................6
11.13 Costs and Expenses..............................................................................6
11.14 Counterparts....................................................................................6
11.15 Termination; Removal of 2014 Notes Indenture Trustee and 2014 Noteholders as
Beneficiaries...................................................................................6
11.16 Amendments......................................................................................6
EXHIBITS
Exhibit A Definitions
Exhibit B-1 The Company's Closing Certificate
Exhibit B-2 Construction Consultant's Closing Certificate
Exhibit B-3 Insurance Advisor's Closing Certificate
Exhibit B-4 Company's Insurance Broker's Closing Certificate (Willis)
Exhibit C-1 Form of Advance Request and Certificate
Exhibit C-2 Form of Construction Consultant's Advance Certificate
Exhibit C-3 Form of Phase I Architect's Advance Certificate
Exhibit C-4 Form of Phase I Primary Contractor's Advance Certificate
Exhibit C-5 Form of Phase I Golf Course Designer's Advance Certificate
Exhibit C-6 Form of Phase I Golf Course Contractor's Advance Certificate
Exhibit C-7 Form of Phase I Aqua Theater and Showroom Designer's Advance Certificate
Exhibit C-8 Form of Phase II Major Architect's Advance Certificate
Exhibit C-9 Form of Phase II Major Contractor's Advance Certificate
Exhibit D Notice of Advance Request
Exhibit E Project Budget/Schedule Amendment Certificate
Exhibit F-1 Phase I Project Budget
Exhibit F-2 Phase I Summary Anticipated Cost Report
Exhibit F-3 Phase I Anticipated Cost Report
Exhibit F-4 Phase II Project Budget
Exhibit F-5 Phase II Summary Anticipated Cost Report
Exhibit F-6 Phase II Anticipated Cost Report
Exhibit F-7 Phase I Projected Excess Cash Flow Schedule
Exhibit G-1 Phase I Project Schedule
Exhibit G-2 Phase II Project Schedule
Exhibit H-1 Form of Unconditional Release of Lien Upon Progress Payment
Exhibit H-2 Form of Conditional Release of Lien Upon Progress Payment
Exhibit H-3 Form of Unconditional Release of Lien Upon Final Payment
Exhibit H-4 Form of Conditional Release of Lien Upon Final Payment
Exhibit I Form of Local Company Collateral Account Agreement
Exhibit J-1 Schedule of Permits Phase I Project
Exhibit J-2 Schedule of Permits Phase II Project
Exhibit K-1 Wynn Las Vegas Permitted Encumbrances
Exhibit K-2 Wynn Golf Permitted Encumbrances
Exhibit K-3 Wynn Sunrise Permitted Encumbrances
Exhibit L Insurance Requirements
Exhibit M [Intentionally Omitted]
Exhibit N Opinion List
Exhibit O Form of Payment and Performance Bond
Exhibit P Form of Consent to Assignment
Exhibit Q-1 Description of the Phase I Project
Exhibit Q-2 Description of the Phase II Project
Exhibit Q-3 Description of the Site
Part A Description of the Golf Course Land
Part B Description of the Wynn Sunrise Land
Part C Description of the Phase II Land
Exhibit Q-4 List of Plans and Specifications
Exhibit Q-5 List of Contracts and all other Material Project Documents
Exhibit R-1 Form of Company's Phase II Approval Date Certificate
Exhibit R-2 Form of Company's Phase II Twenty-Five Percent Completion Date Certificate
Exhibit R-3 Form of Construction Consultant's Phase II Twenty-Five Percent Completion Date Certificate
Exhibit R-4 Form of Company's Phase II Fifty Percent Completion Date Certificate
Exhibit R-5 Form of Construction Consultant's Phase II Fifty Percent Completion Date Certificate
Exhibit R-6 Form of Company's Completion Guaranty Release Certificate
Exhibit R-7 Form of Construction Consultant's Completion Guaranty Release Certificate
Exhibit S-1 Form of Company's Opening Date Certificate
Exhibit S-2 Form of Construction Consultant's Opening Date Certificate
Exhibit S-3 Form of Phase I Primary Contractor's Opening Date Certificate
Exhibit S-4 Form of Phase I Architect's Opening Date Certificate
Exhibit S-5 Form of Phase II Primary Contractor's Opening Date Certificate
Exhibit S-6 Form of Phase II Architect's Opening Date Certificate
Exhibit T-1 Form of Company's Completion Certificate
Exhibit T-2 Form of Construction Consultant's Completion Certificate
Exhibit T-3 Form of Phase I Architect's Completion Certificate
Exhibit T-4 Form of Phase I Primary Contractor's Completion Certificate
Exhibit T-5 Form of Phase I Golf Course Designer's Completion Certificate
Exhibit T-6 Form of Phase I Aqua Theater and Showroom Designer's Completion Certificate
Exhibit T-7 Form of Phase I Golf Course Contractor's Completion Certificate
Exhibit T-8 Form of Phase I Parking Structure Contractor's Completion Certificate
Exhibit T-9 Form of Phase II Major Architect's Completion Certificate
Exhibit T-10 Form of Phase II Major Contractor's Completion Certificate
Exhibit U-1 Form of Company's Final Completion Certificate
Exhibit U-2 Form of Construction Consultant's Final Completion Certificate
Exhibit U-3 Form of Phase I Architect's Final Completion Certificate
Exhibit U-4 Form of Phase I Primary Contractor's Final Completion Certificate
Exhibit U-5 Form of Phase II Primary Architect's Final Completion Certificate
Exhibit U-6 Form of Phase II Primary Contractor's Final Completion Certificate
Exhibit V-1 Minimum Phase I Project Requirements
Exhibit V-2 Minimum Phase II Project Requirements
THIS MASTER DISBURSEMENT AGREEMENT (this "Agreement"), dated as of
December 14, 2004, is entered into by and among WYNN LAS VEGAS, LLC, a Nevada
limited liability company (the "Company"), DEUTSCHE BANK TRUST COMPANY
AMERICAS, as the initial Bank Agent, U.S. BANK NATIONAL ASSOCIATION, as the
initial 2014 Notes Indenture Trustee, and DEUTSCHE BANK TRUST COMPANY AMERICAS,
as the initial Disbursement Agent.
RECITALS
--------
A. The Projects. The Company is in the process of developing and
constructing and proposes to operate the Phase I Project and, at the Company's
option and subject to certain conditions, may develop, construct and operate
the Phase II Project. Prior to the date hereof, the Company has entered into
certain Contracts in respect of the Phase I Project and has incurred and paid
for certain Project Costs.
B. Bank Credit Agreement. Concurrently herewith, the Company, the Bank
Agent, Deutsche Bank Securities Inc., as lead arranger and joint book-running
manager, Bank of America, N.A., as syndication agent, Banc of America
Securities LLC, as lead arranger and joint book-running manager, Bear Stearns
Corporate Lending, Inc., as joint documentation agent, Bear, Stearns & Co.
Inc., as arranger and joint book-running manager, JPMorgan Chase Bank, N.A., as
joint documentation agent, J.P. Morgan Securities Inc., as arranger and joint
book-running manager, Societe Generale, as joint documentation agent, SG
Americas Securities, LLC, as arranger and joint book-running manager, and the
Bank Lenders have entered into the Bank Credit Agreement pursuant to which the
Bank Lenders have agreed, subject to the terms thereof and hereof, to provide
certain revolving loans to the Company in an aggregate principal amount not to
exceed $600,000,000 and certain term loans to the Company in an aggregate
principal amount not to exceed $400,000,000, as more particularly described
therein.
C. 2014 Notes Indenture. Concurrently herewith, the Company, Wynn Las
Vegas Capital Corp. ("Capital Corp."), certain guarantors signatory thereto and
the 2014 Notes Indenture Trustee have entered into the 2014 Notes Indenture
pursuant to which the Company and Capital Corp. will issue the 2014 Notes, as
more particularly described therein. The Bank Lenders and the 2014 Noteholders
will share first priority Liens on the Project Security (subject to certain
exceptions).
D. Purpose. The parties are entering into this Agreement in order to
set forth, among other things, (a) the mechanics for and allocation of the
Company's requests 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.
AGREEMENT
---------
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1.
- DEFINITIONS; RULES OF INTERPRETATION
--------------------------------------
1.1 DEFINITIONS. Except as otherwise expressly provided herein,
capitalized terms used in this Agreement and its exhibits shall have the
meanings given in Exhibit A hereto.
1.2 RULES OF INTERPRETATION. Except as otherwise expressly provided
herein, the rules of interpretation set forth in Exhibit A hereto shall apply
to this Agreement.
ARTICLE 2.
- ACCOUNTS, ADVANCES AND DISBURSEMENTS
--------------------------------------
2.1 AVAILABILITY OF ADVANCES. Subject to the satisfaction of all
conditions precedent listed in Article 3 and the other terms and provisions of
this Agreement, Advances under the Facilities and from the Company's Funds
Account shall be made during the Availability Period. Advances shall be made no
more frequently than once in any calendar month (unless approved by the
Disbursement Agent, such approval not to be given more than once per calendar
quarter); provided that the advances and transfers of funds contemplated in
Sections 2.5.3, 2.8 and 2.9 shall be disregarded for purposes of this sentence.
2.2 COMPANY ACCOUNTS.
2.2.1 Company's Funds Account. On or prior to the Closing Date, the
Company's Funds Account shall be established at Deutsche Bank Trust Company
Americas, as the Securities Intermediary. There shall be deposited into the
Company's Funds Account (a) the amounts required pursuant to Sections 5.5.1 and
5.5.2, (b) all funds received by the Company relating to the Phase I Project
prior to the Phase I Final Completion Date (i) consisting of liquidated or
other damages under the Construction Agreements, (ii) under the Construction
Guaranty, (iii) under any Payment and Performance Bond, or (iv) consisting of
any amounts related to construction of the Phase I Project or to any other
Construction Agreement, (c) all funds received by the Company relating to the
Phase II Project prior to the Phase II Final Completion Date (i) consisting of
liquidated or other damages under the Construction Agreements, (ii) under any
Construction Guaranty, (iii) under any Payment and Performance Bond, or (iv)
consisting of any amounts related to construction of the Phase II Project or to
any other Construction Agreement, (d) prior to the Phase I Substantial
Completion Date, all Loss Proceeds in respect of the Phase I Project required
to be deposited into the Company's Funds Account pursuant to Section 5.14, (e)
prior to the Phase II Completion Date, all Loss Proceeds in respect of the
Phase II Project required to be deposited into the Company's Funds Account
pursuant to Section 5.14, (f) investment income from Permitted Investments on
amounts on deposit in the Disbursement Account pursuant to the last sentence of
Section 2.2.3, (g) at the Company's option, any additional equity contributions
made to the Company prior to the Last Project Final Completion Date and (h)
investment income from Permitted Investments in the Company's Payment Account,
the Completion Guaranty Deposit Account and the Project Liquidity Reserve
Account required to be transferred to the Company's Funds Account as provided
in this Agreement. From and after the Phase II Approval Date, amounts may be
transferred from the "Funding Accounts" as defined in the Bank Credit
Agreement) to the Company's Funds Account pursuant to Section 5.1.4. Subject to
the provisions of Section 10.2 and the Company Collateral Account Agreements,
amounts on deposit in the Company's Funds Account shall from time to time, be
transferred by the Disbursement Agent to the Disbursement Account for
application in accordance with the provisions of this Agreement or applied to
prepay the Obligations in accordance with Section 5.14. The Disbursement Agent
shall cause investment income from Permitted Investments on amounts on deposit
in the Company's Funds Account to be deposited at all times therein until
applied as provided in this Agreement.
2.2.2 2014 Notes Proceeds Account. On or prior to the Closing
Date, the 2014 Notes Proceeds Account shall be established at Deutsche Bank
Trust Company Americas, as the Securities Intermediary. There shall be
deposited into the 2014 Notes Proceeds Account (a) the 2014 Notes Proceeds and
(b) investment income from Permitted Investments on amounts on deposit in the
Disbursement Account pursuant to the last sentence of Section 2.2.3. Subject to
the provisions of Section 10.2 and the Company Collateral Account Agreements,
amounts on deposit in the 2014 Notes Proceeds Account shall, from time to time,
be transferred by the Disbursement Agent to the Disbursement Account for
application in accordance with the provisions of this Agreement. The
Disbursement Agent shall cause investment income from Permitted Investments on
amounts on deposit in the 2014 Notes Proceeds Account to be deposited at all
times therein until applied as provided in this Agreement.
2.2.3 Disbursement Account. On or prior to the Closing Date, the
Disbursement Account shall be established at Deutsche Bank Trust Company
Americas, as the Securities Intermediary. There shall be deposited in the
Disbursement Account (a) all funds from time to time advanced by the Bank
Lenders under the Bank Credit Facility pursuant to Section 2.5(a) of the Bank
Credit Agreement, (b) all funds transferred from the Bank Proceeds Account
(other than amounts withdrawn from the Bank Proceeds Account pursuant to
Section 2.5.3), the Company's Funds Account and the 2014 Notes Proceeds Account
pursuant to the provisions of this Agreement, and (c) all funds transferred
from the Completion Guaranty Deposit Account or Project Liquidity Reserve
Account pursuant to Section 5.5.3. Subject to the provisions of Section 10.2
and the Company Collateral Account Agreements, amounts on deposit in the
Disbursement Account shall, from time to time, be transferred by the
Disbursement Agent to the Cash Management Account, the Bank Proceeds Account,
the 2014 Notes Proceeds Account, the Company's Payment Account and/or applied
by the Disbursement Agent to pay Project Costs, in each case, in accordance
with Section 2.5. The deposit of funds into the Disbursement Account shall not
create, vest in, or give the Company any rights to such funds, and the Company
shall have no right to draw, obtain the release or otherwise use such funds
until (x) the requirements of Section 2.3 have been satisfied and (y) the
conditions set forth in Sections 3.1, 3.2 or 3.3, as applicable, have been
satisfied or waived in accordance with the terms hereof. If any funds deposited
in the Disbursement Account are, for any reason, not withdrawn therefrom on or
before the next Banking Day after the day on which they were deposited, such
funds shall, on the Second Banking Day after the day on which they were
deposited, be transferred by the Disbursement Agent (A) in the case of funds
advanced by the Bank Lenders or transferred from the Bank Proceeds Account, to
the Bank Proceeds Account, (B) in the case of funds transferred from the
Company's Funds Account, to the Company's Funds Account, and (C) in the case of
funds transferred from the 2014 Notes Proceeds Account, to the 2014 Notes
Proceeds Account. The Disbursement Agent shall cause investment income from
Permitted Investments on amounts on deposit in the Disbursement Account to be
transferred to (1) the Bank Proceeds Account, to the extent attributable to
funds advanced by the Bank Lenders or transferred from the Bank Proceeds
Account, (2) the Company's Funds Account, to the extent attributable to funds
transferred from the Company's Funds Account, and (3) the 2014 Notes Proceeds
Account, to the extent attributable to funds transferred from the 2014 Notes
Proceeds Account, in each case at the same time as the corresponding funds
giving rise to the investment income are transferred to the respective
accounts.
2.2.4 Cash Management Account. On or prior to the Closing Date,
the Company shall establish a local deposit account (the "Cash Management
Account") in Las Vegas, Nevada with a bank (i) that is reasonably acceptable to
the Disbursement Agent and (ii) that enters into a control agreement
substantially in the form of Exhibit I hereto or otherwise satisfactory to the
Disbursement Agent. On or prior to the Closing Date, the Company shall deposit
or cause to be deposited not less than $6,900,000 in the Cash Management
Account. Subject to the provisions of Section 10.2 and the Company Collateral
Account Agreements, the Company shall be permitted from time to time to draw
checks on and otherwise withdraw amounts on deposit in the Cash Management
Account to pay Project Costs then due and payable. The Company shall be
permitted from time to time to replace amounts drawn from, and/or to increase
the funds on deposit in, the Cash Management Account (i) from Advances, by
including a request to such effect in Advance Requests and satisfying the
conditions precedent set forth in Sections 3.2 or 3.3, as applicable (unless
such conditions precedent are waived in accordance with the terms hereof) or
(ii) by requesting a transfer of funds previously deposited in the Bank
Proceeds Account and satisfying the conditions precedent set forth in Section
2.5.3 (unless such conditions precedent are waived in accordance with the terms
hereof). Any deposit of funds into the Cash Management Account which would
cause the balance thereof to exceed $20,000,000 shall be subject to the
Disbursement Agent's approval, which approval shall be given if the
Disbursement Agent, in consultation with the Construction Consultant, is
reasonably satisfied that such amounts are necessary to pay Project Costs
anticipated to become due and payable through the end of the ensuing calendar
month; provided, however, that amounts intended to cover Company payroll that
have been transferred from the Bank Proceeds Account to the Cash Management
Account pursuant to Section 2.5.3 shall be excluded for purposes of determining
whether the foregoing thresholds have been exceeded. The Company shall cause
investment income from Permitted Investments on amounts on deposit in the Cash
Management Account to be deposited therein until applied to the payment of
Project Costs as described above.
2.2.5 Bank Proceeds Account. On or prior to the Closing Date, the
Bank Proceeds Account shall be established at Deutsche Bank Trust Company
Americas, as the Securities Intermediary. There shall be deposited in the Bank
Proceeds Account (a) all amounts deposited by the Bank Lenders in the
Disbursement Account (or transferred to the Disbursement Account from the Bank
Proceeds Account) which are not withdrawn therefrom on or before the next
Banking Day after the day on which they were deposited, (b) amounts intended to
cover Company payroll in accordance with Section 2.5.3, (c) "Term Loans" funded
from time to time by the Bank Lenders pursuant to Section 2.5(c) of the Bank
Credit Agreement; and (d) investment income from Permitted Investments on
amounts on deposit in the Disbursement Account pursuant to the last sentence of
Section 2.2.3. Subject to the provisions of Section 10.2 and the Company
Collateral Account Agreements, amounts on deposit in the Bank Proceeds Account
shall from time to time be transferred by the Disbursement Agent for
application in accordance with the provisions of this Agreement. Upon receipt
of a written request from the Company on or within one (1) Banking Day after
the Phase II Revolving Commitment Sunset Date (if the Phase II Approval Date
shall have not occurred), the Disbursement Agent shall release any proceeds of
"Term Loans" funded under Section 2.5(c) of the Bank Credit Agreement then on
deposit in the Bank Proceeds Account to the Bank Agent for application to the
repayment of "Term Loans" pursuant to Section 2.12(e) of the Bank Credit
Agreement. The Disbursement Agent shall cause investment income from Permitted
Investments in amounts on deposit in the Bank Proceeds Account to be deposited
at all times therein until applied as provided in this Agreement.
2.2.6 Company's Payment Account. On or prior to the Closing Date,
the Company shall establish a local deposit account (the "Company's Payment
Account") in Las Vegas, Nevada with a bank (i) that is reasonably acceptable to
the Disbursement Agent and (ii) that enters into a control agreement
substantially in the form of Exhibit I hereto or otherwise satisfactory to the
Disbursement Agent. Subject to the provisions of Section 10.2 and the Company
Collateral Account Agreements, on each Advance Date, the Disbursement Agent
shall transfer from the Disbursement Account to the Company's Payment Account
the amounts provided in clause (c) of Section 2.5.1. Subject to the provisions
of Section 10.2 and the Company Collateral Account Agreements, the Company
shall be permitted from time to time to draw checks on and otherwise withdraw
amounts on deposit in the Company's Payment Account to pay Project Costs in the
amounts and to the Contractors and/or Subcontractors listed in the most recent
Advance Request (other than the Primary Contractors and any other Contractor or
Subcontractor to whom the Disbursement Agent wired funds pursuant to Section
2.5.1(b)); provided, that the amount paid during any calendar month to any one
Contractor or Subcontractor from funds in the Company Payment Account shall not
exceed $7,000,000. The Company shall cause investment income from Permitted
Investments on amounts on deposit in the Company's Payment Account to be
transferred to and deposited in the Company's Funds Account within two (2)
Banking Days following the end of each calendar month.
2.2.7 Completion Guaranty Deposit Account. On or prior to the
Closing Date, the Completion Guaranty Deposit Account shall be established at
Deutsche Bank Trust Company Americas, as the Securities Intermediary. On the
Closing Date, the Company shall cause $50,000,000 to be on deposit in the
Completion Guaranty Deposit Account. There shall also be deposited into the
Completion Guaranty Deposit Account all amounts described in Section 5.1.3.
Subject to the provisions of Section 10.2 and the Completion Guaranty
Collateral Account Agreement, amounts on deposit in the Completion Guaranty
Deposit Account shall, from time to time, be (a) transferred or applied by the
Disbursement Agent to the Company's Funds Account or the Disbursement Account,
as the case may be, for application as provided in accordance with Sections
5.5.1 or 5.5.3, as applicable or (b) applied to prepayment of the Obligations
in accordance with Section 5.14. The Disbursement Agent shall cause investment
income from Permitted Investments on amounts on deposit in the Completion
Guaranty Deposit Account to be transferred to and deposited in the Company's
Funds Account within two (2) Banking Days after realization of such investment
income and deposit of such income into the Completion Guaranty Deposit Account,
which transfer shall be deemed to be a dividend by the Completion Guarantor to
the Company. The Disbursement Agent shall release all amounts remaining on
deposit in the Completion Guaranty Deposit Account, other than the Reserved
Amounts, to the Company on the Completion Guaranty Release Date, which released
amounts shall be deemed to be a dividend by the Completion Guarantor to the
Company. The Disbursement Agent shall release all amounts remaining on deposit
in the Completion Guaranty Deposit Account to the Company on the Last Project
Final Completion Date. 2.2.8 Project Liquidity Reserve Account. On or prior to
the Closing Date, the Project Liquidity Reserve Account shall be established at
Deutsche Bank Trust Company Americas, as the Securities Intermediary. On or
prior to the Closing Date, the Company shall cause $30,000,000 to be on deposit
in the Project Liquidity Reserve Account. Subject to the provisions of Section
10.2 and the Company Collateral Account Agreements, amounts on deposit in the
Project Liquidity Reserve Account shall, from time to time, be (a) transferred
by the Disbursement Agent to the Disbursement Account for application in
accordance with Section 5.5.3 or (b) applied by the Disbursement Agent to
prepayment of the Obligations in accordance with Section 5.14. Upon receipt of
a written request from the Company pursuant to Section 7.27(b) of the Bank
Credit Agreement, the Disbursement Agent shall withdraw the amounts requested
by the Company from the Project Liquidity Reserve Account and apply such
amounts to pay Debt Service relating to the Bank Credit Facility or the 2014
Notes (pro rata according to such amounts then due and owing) in accordance
with the Company's written request. After the Phase I Final Completion Date,
upon receipt of a written request from the Company pursuant to Section 2.12(f)
of the Bank Credit Agreement, the Disbursement Agent shall release all amounts
remaining on deposit in the Project Liquidity Reserve Account to the Bank Agent
for application to the repayment of "Revolving Credit Loans" under the Bank
Credit Agreement (such amounts to be applied in accordance with Section 2.12(f)
of the Bank Credit Agreement and without reduction of any commitments
thereunder). Prior to the Phase I Substantial Completion Date, the Disbursement
Agent shall cause investment income from Permitted Investments on amounts on
deposit in the Project Liquidity Reserve Account to be transferred to and
deposited in the Company's Funds Account within two (2) Banking Days after
realization of such investment income and deposit of such income into the
Project Liquidity Reserve Account. From and after the Phase I Substantial
Completion Date, the Disbursement Agent shall cause investment income from
Permitted Investments on amounts on deposit in the Project Liquidity Reserve
Account to be deposited at all times therein until applied by the Bank Agent as
described above.
2.3 MECHANICS FOR OBTAINING ADVANCES.
2.3.1 Advance Requests.
(a) Other than as provided in Section 3.7, the Company shall
have the right, from time to time, to deliver to the Disbursement Agent and the
Construction Consultant an Advance Request containing all exhibits, attachments
and certificates (other than the Construction Consultant's Advance
Certificate), all appropriately completed and duly executed, requesting that an
Advance be made on or after the tenth (10th) Banking Day after delivery of such
Advance Request (or, solely with respect to the December 2004 Advance Request,
on or after the fifth (5th) Banking Day after delivery of such Advance
Request). Except with respect to Advances under Section 3.3, Advance Requests
with respect to the Phase II Project may only be submitted after the Phase II
Approval Date.
(b) For each Advance with respect to Project Costs allocated
to the Phase I Project in the Phase I Project Budget, the Company's Advance
Request shall include the Phase I Required Contractor and Architect Advance
Certificates (in each case, to the extent that such Advance Request requests
that payment be made to such Person or to any Contractor or Subcontractor
implementing the work designed by such Person).
(c) For each Advance with respect to Project Costs allocated
to the Phase II Project in the Phase II Project Budget from and after the Phase
II Approval Date, the Company's Advance Request shall include the Phase II
Major Contractors' Advance Certificate(s) and the Phase II Major Architects'
Advance Certificate(s) (in each case, to the extent that such Advance Request
requests that payment be made to such Person or to any Contractor or
Subcontractor implementing the work designed by such Person).
(d) Each Advance Request shall request Advances in order to
(i) until the Phase I Opening Date, pay interest and fees under the Bank Credit
Agreement and the 2014 Notes which are scheduled to become due and payable on
or after the requested Advance Date and prior to the next succeeding Advance
Date, (ii) pay other Project Costs specifically allocated to either the Phase I
Project or (subject to Section 3.3) the Phase II Project in the applicable
Project Budget and estimated to become due and payable on or prior to the
requested Advance Date, (iii) issue a Letter of Credit under the Bank Credit
Facility and/or (iv) replenish funds, or increase funds on deposit, in the Cash
Management Account. If the Company fails to set forth the information described
in clause (i) above in any Advance Request or fails to timely deliver any
Advance Request, then the Bank Agent and/or the 2014 Notes Indenture Trustee
may deliver such information and a request for payment of interest and fees to
the Disbursement Agent, upon which request the Disbursement Agent shall, if
applicable, revise the Advance Request and related Notice of Advance Request to
provide for such payment. From and after the Phase I Opening Date, the Company
shall only be permitted to obtain Advances hereunder for the purpose of paying
Debt Service accruing with respect to Advances made under the Bank Credit
Agreement or from the 2014 Notes Proceeds Account to pay Project Costs
allocated to the Phase II Project under the Phase II Project Budget. Each such
Advance Request shall request Advances from the various Funding Sources
consistent with the requirements of Section 2.4 and shall include an estimated
use of proceeds for the requested Advance broken down for each Project by
Contractor and Line Item and shall certify as to the matters set forth therein.
Promptly after delivery of each Advance Request, the Disbursement Agent shall,
and shall instruct the Construction Consultant to, review such Advance Request
and attachments thereto to determine whether all required documentation has
been provided, and shall use commercially reasonable efforts to notify the
Company of any deficiency within three (3) Banking Days after delivery thereof
by the Company, it being acknowledged that any failure to notify the Company of
any deficiency in the Advance Request so delivered within the aforesaid time
period shall in no event be deemed an approval thereof. The Disbursement Agent
shall also instruct the Construction Consultant to promptly review the work
referenced in such Advance Request, including work estimated to be completed
through the applicable Advance Date, as such work is being performed.
(e) Concurrently with the delivery by the Company of each
Advance Request, the Company shall deliver to the Funding Agents and the
Disbursement Agent a Notice of Advance Request substantially in the form of
Exhibit D, appropriately completed and duly executed by a Responsible Officer
of the Company. Each Funding Agent shall, as soon as practicable (but no later
than two (2) Banking Days) after receiving each Notice of Advance Request,
deliver a notice confirming such receipt to the Disbursement Agent and, in the
case of the Bank Agent, confirming that the Company's calculation of interest
and fees scheduled to become due and payable under its Facility on and after
the requested Advance Date and through the scheduled next succeeding Advance
Date is accurate (or, if not accurate, shall provide the appropriate revisions
to the Disbursement Agent).
(f) Within three (3) Banking Days prior to the requested
Advance Date, the Construction Consultant shall deliver directly to the
Disbursement Agent (with a copy to the Company) its certificate with respect to
such Advance Request, in the form of Exhibit C-2 either approving or
disapproving the Advance Request (the "Construction Consultant's Advance
Certificate"); provided that if the Construction Consultant disapproves one or
more particular payments or disbursements to any Contractor or Subcontractor
requested by the Advance Request, but the Advance Request otherwise complies
with the requirements hereof, then the Advance Request shall be deemed approved
with respect to all payments and disbursements requested therein other than the
particular payments or disbursements so disapproved. If the Construction
Consultant disapproves the Advance Request or any one or more particular
payments requested therein, the Disbursement Agent shall instruct the
Construction Consultant to provide the Company, in reasonable detail, its
reason(s) for such disapproval.
(g) Promptly after receipt of a request therefor, the
Disbursement Agent shall deliver copies of any Advance Request to the Funding
Agents.
2.3.2 Funding Notices from Disbursement Agent.
(a) (i) Promptly after delivery of each Advance Request and
related Notice of Advance Request by the Company pursuant to Section 2.3.1, the
Disbursement Agent shall review the same in order to reconcile the information
set forth in the Advance Request with the information set forth in the related
Notice of Advance Request and determine whether all required documentation has
been provided and whether all applicable conditions precedent pursuant to this
Agreement have been satisfied. In particular, and without limiting the
generality of the foregoing, the Disbursement Agent shall verify, to the extent
set forth herein, based on information provided to it by the Funding Agents,
the Company and the Construction Consultant, (A) the Company's calculation of
Available Funds, including Anticipated Earnings, set forth in the Advance
Request, (B) that the Projects are In Balance, (C) that the allocation of the
requested Advance among the various funding sources complies with the
provisions of Section 2.4 and (D) that the Company's calculation of interest
and fees scheduled to become due and payable under the Bank Credit Agreement
and the 2014 Notes, in each case, from and after the requested Advance Date and
prior to the immediately succeeding Advance Date, is accurate. Subject to the
other subsections of this Section 2.3, at such time as the Disbursement Agent
has received the Construction Consultant's Advance Certificate and otherwise
determines that the applicable conditions precedent set forth in Article 3 with
respect to a requested Advance have been satisfied, but no less than three (3)
Banking Days prior to the requested Advance Date, the Disbursement Agent shall
countersign the Notice of Advance Request and deliver the same to the Company
and each Funding Agent (or otherwise electronically notify the Company and each
Funding Agent that the applicable conditions precedent set forth in Article 3
with respect to a requested Advance have been satisfied) (such delivery or
notification, an "Advance Confirmation Notice").
(ii) In the event that the Construction Consultant
approves only a portion of the payments or disbursements requested by the
Advance Request (as contemplated by Section 2.3.1(f)) or, if based on the
Disbursement Agent's review of the Advance Request and accompanying Notice of
Advance Request, the Disbursement Agent finds any errors or inaccuracies in the
Advance Request or the Notice of Advance Request (including any inaccuracy in
the allocations made pursuant to Section 2.4 hereof), but the Advance Request
and Notice of Advance Request otherwise conform to the requirements of this
Agreement, the Disbursement Agent shall (A) notify the Company thereof, (B)
revise (to the extent it is able to do so and with the Company's consent, which
may be provided electronically) or request that the Company revise such
certificates to remove the request for the disapproved payment and/or rectify
any errors or inaccuracies, (C) deliver or request that the Company execute and
deliver to the Funding Agents the revised Notice of Advance Request and (D)
approve the requested Advance and issue the Advance Confirmation Notice after
making the required revisions (or receiving from the Company the revised
certificates) on the basis of the certificates as so revised. In the event that
the Disbursement Agent revises the Advance Request and Notice of Advance
Request so as to increase the amount to be advanced under the Bank Credit
Facility, the amount of such increase shall constitute the same type of Loans
as requested in such Advance Request (unless otherwise prohibited under the
Bank Credit Agreement). In the event that the Disbursement Agent revises the
Advance Request and Notice of Advance Request so as to decrease the amount to
be advanced under the Bank Credit Facility, the amount of such decrease shall
(unless otherwise requested by the Company and permitted under the Bank Credit
Agreement) first reduce the amount of "Base Rate Loans" requested under such
Facility and then reduce the amount of "Eurodollar Loans" requested under such
Facility. All references to a particular requested Advance, Advance Request or
Notice of Advance Request in the ensuing provisions of this Article 2 shall, to
the extent the context so requires, refer to the same as revised or modified
pursuant to this clause (ii).
(b) In the event that the Disbursement Agent (i) on or prior
to the requested Advance Date determines that the conditions precedent to an
Advance have not been satisfied or (ii) prior to the requested Advance Date
receives notice from any Funding Agent that a Potential Event of Default or an
Event of Default has occurred and is continuing, then the Disbursement Agent
shall notify the Company and each Funding Agent thereof as soon as reasonably
possible but in no event later than one (1) Banking Day after such
determination or receipt, as the case may be (a "Stop Funding Notice"). The
Stop Funding Notice shall specify, in reasonable detail, the conditions
precedent which the Disbursement Agent has determined have not been satisfied
and/or shall attach a copy of any notice of default received by the
Disbursement Agent. Upon such written notice from the Disbursement Agent, and
subject to the provisions of Section 3.5, (i) no Bank Lender shall have any
obligation to advance its portion of the requested Advance, if any, (ii) the
Disbursement Agent shall not withdraw any funds from the 2014 Notes Proceeds
Account for the purpose of transferring such funds to the Disbursement Account
(provided that the Disbursement Agent shall withdraw funds from the 2014 Notes
Proceeds Account for the purpose of paying scheduled Debt Service on the 2014
Notes), (iii) the Disbursement Agent shall not withdraw any funds from the
Company's Funds Account to satisfy such requested Advance, (iv) the
Disbursement Agent shall not withdraw, transfer or release to the Company any
funds then on deposit in the Bank Proceeds Account (provided that the
Disbursement Agent shall withdraw funds from the Bank Proceeds Account for the
purpose of paying scheduled Debt Service on the Bank Credit Facility), (v) the
Disbursement Agent shall not withdraw, transfer or release to the Company any
funds then on deposit in the Disbursement Account (other than in respect of
wires previously issued under Section 2.5.1(b)) and (vi) any Advance
Confirmation Notice issued prior to the issuance of a Stop Funding Notice (if
the Advance to which such Advance Confirmation Notice relates has not been
made) shall become null and void and of no force or effect; provided that such
nullification of any such Advance Confirmation Notice shall not affect the
obligations of the Company for break funding costs under the Bank Credit
Facility.
(c) Prior to the earliest of (i) termination of the "Term
Loan Commitments" (as defined in the Bank Credit Agreement) other than due to
the funding in full thereof, (ii) termination of the "Revolving Credit
Commitments" (as defined in the Bank Credit Agreement) and (iii) acceleration
by any Funding Agent of amounts owed under its Facility, unless any such action
has been rescinded, at such time, if ever, as the Disbursement Agent (x)
determines that the condition precedent to the requested Advance which had not
been satisfied has become satisfied or (y) receives notice from the Funding
Agent who issued the notice of default described in the preceding paragraph
that the Potential Event of Default or Event of Default has been cured or
waived, as the case may be, the Disbursement Agent shall deliver another
Advance Confirmation Notice with respect to the applicable Advance Request to
the Company and each of the Funding Agents.
(d) In the event that a Funding Agent entitled to waive
conditions precedent to funding pursuant to Section 3.5 or the Bank Agent
pursuant to Section 3.6 informs the Disbursement Agent in writing that it has
waived the event or events giving rise to the Stop Funding Notice, the
Disbursement Agent shall deliver an Advance Confirmation Notice (modified, if
applicable, to apply only to amounts to be advanced under such Funding Agent's
Facility unless all Funding Agents entitled to waive conditions with respect to
such Advance Request have waived the conditions or the Bank Agent has waived
such conditions pursuant to Section 3.6, in which case the Disbursement Agent
shall deliver an Advance Confirmation Notice with respect to all Advances
requested by the Company) to the Company and each of the Funding Agents.
2.3.3 Provision of Funds by the Bank Lenders.
(a) (i) (A) In the case of an Advance Confirmation Notice
issued pursuant to Section 2.3.2(a) above, on the requested Advance Date and
(B) in the case of an Advance Confirmation Notice issued pursuant to Section
2.3.2(c) or (d) above, on the third (3rd) Banking Day after such issuance,
before 12:00 p.m. New York, New York time, (x) the Bank Agent (subject to
Section 2.4.3) shall deposit or cause to be deposited in the Disbursement
Account, in immediately available funds, the Bank Credit Facility's portion of
the requested Advance, if any, as determined pursuant to Sections 2.4.1 and
2.4.2 and set forth in the related Advance Confirmation Notice and (y) if the
related Notice of Advance Request includes a request for the issuance of one or
more Letters of Credit under the Bank Credit Agreement, the Bank Agent shall
also send written notice to the Disbursement Agent that the "Issuing Lenders"
(as defined in the Bank Credit Agreement) have advised the Bank Agent that they
are committed to issue each such Letter of Credit.
(ii) Upon confirming that all funds required to be
deposited in the Disbursement Account pursuant to clause (i) above have been
deposited and, if applicable, upon receipt of the Bank Agent's confirmation
that the "Issuing Lenders" (as defined in the Bank Credit Agreement) have
advised the Bank Agent that they are committed to issue each requested Letter
of Credit, the Disbursement Agent shall (subject to Section 2.3.2(b)) promptly
withdraw from the Company's Funds Account, the 2014 Notes Proceeds Account and
the Bank Proceeds Account the portion of the Advance to be funded from each
such account as determined pursuant to Section 2.4 and set forth in the related
Advance Confirmation Notice, deposit such funds in the Disbursement Account and
shall notify the Bank Agent that such transfer to the Disbursement Account has
been made. Upon receipt of such notice, if applicable, the Bank Agent shall
instruct the "Issuing Lenders" (as defined in the Bank Credit Agreement) under
the Bank Revolving Facility to issue the requested Letters of Credit. All funds
so deposited in the Disbursement Account shall thereafter be applied by the
Disbursement Agent as provided in Section 2.5.
(b) Neither the Disbursement Agent nor the Bank Agent shall
be responsible for any Bank Lender's failure to make any required Advance or,
if applicable, the failure of any "Issuing Lender" under the Bank Credit
Agreement to issue any Letter of Credit. The Disbursement Agent shall not
release to the Company any amounts properly advanced until all Advances
requested by the relevant Advance Request have been deposited in the
Disbursement Account and, if applicable, the Bank Agent has confirmed that the
"Issuing Lenders" (as defined in the Bank Credit Agreement) under the Bank
Revolving Facility have advised the Bank Agent that they are committed to issue
each requested Letter of Credit, unless one or more of the Lenders who have
made the Advances request the release of any funds Advanced by each such Lender
(the Disbursement Agent shall promptly notify all Funding Agents upon receiving
any such request). However, the withholding of such Advances by the
Disbursement Agent shall not release the Lender who failed to make the Advance
under its Facility or any "Issuing Lender" who failed to issue a Letter of
Credit from liability. The Disbursement Agent shall have no liability to the
Company arising from any Stop Funding Notice issued pursuant to Section
2.3.2(b) at the request of any Funding Agent (a "Stop Funding Request"),
whether or not such Funding Agent was entitled to issue such Stop Funding
Request. A Funding Agent shall not have any liability to the Company, the
Disbursement Agent, any other Funding Agent or any Lender arising from any Stop
Funding Notice issued by the Disbursement Agent in response to a Stop Funding
Request by such Funding Agent; provided, however, that nothing herein shall
release from liability the Funding Agent who issued the Stop Funding Request if
such issuance resulted from, or constituted an act of gross negligence or
willful misconduct on the part of such Funding Agent, as finally judicially
determined by a court of competent jurisdiction.
2.3.4 Change in Facts Certified. The Company shall promptly
notify the Disbursement Agent prior to the making of any Advances in the event
that the Company obtains knowledge that any of the matters to which the Company
certified in the corresponding Advance Request are no longer true and correct
in all material respects. The acceptance by the Company of the proceeds of any
Advance shall constitute a re-certification by the Company, as of the
applicable Advance Date, of all matters certified to in the related Advance
Request, except to the extent that any matter so certified to relates to a
specific earlier date in which case such certification shall be true and
correct in all material respects as of such earlier date.
2.3.5 References to Dates. In the event that any day or date
referred to in the foregoing provisions of this Section 2.3 occurs on a day
that is not a Banking Day, the reference shall be deemed to be to the next
succeeding Banking Day.
2.4 ORDER OF SOURCES OF FUNDING.
2.4.1 Order of Withdrawals From Funding Sources. The full amount
of all Advances to be made on any given date shall be made from the following
sources and in the following order of priority:
(a) first, from funds from time to time on deposit in the
Company's Funds Account, until Exhausted;
(b) second, until the funds on deposit in the 2014 Notes
Proceeds Account have been Exhausted and subject to Section 2.4.2, from funds
from time to time on deposit in the 2014 Notes Proceeds Account and from funds
available to be drawn under the Bank Credit Facility, in such amounts so that
the aggregate amount of Advances on any given date pursuant to this Section
2.4.1(b) shall have been made in the following percentages: (A) sixty-six and
two-thirds percent (66 2/3%) shall have been Advanced from the 2014 Notes
Proceeds Account and (B) thirty-three and 1/3 percent (33 1/3%) shall have been
Advanced from the Bank Credit Facility;
(c) third, from funds available to be drawn under the Bank
Credit Facility, until Exhausted;
(d) fourth, from funds available to be transferred from the
Completion Guaranty Deposit Account under Section 5.5.3, until Exhausted; and
(e) fifth, from funds available to be transferred from the
Project Liquidity Reserve Account under Section 5.5.3, until Exhausted.
2.4.2 Advances for Letters of Credit. All Advances consisting of
Letters of Credit shall be counted as an Advance made from the Bank Credit
Facility in an amount equal to the stated amount of such Letters of Credit
outstanding from time to time for purposes of determining the funding ratio of
the Bank Credit Facility under Section 2.4.1 (second clause) above.
2.4.3 Advances Under the Bank Credit Facility. All issuances of
Letters of Credit under the Bank Credit Facility shall be satisfied through the
Bank Revolving Facility pursuant to the procedures set forth in Article 3 of
the Bank Credit Agreement. All other amounts required to be obtained from the
Bank Credit Facility for deposit in the Disbursement Account shall be satisfied
as follows:
(a) first, from amounts on deposit in the Bank Proceeds
Account on the relevant date, to the extent thereof (excluding amounts
previously advanced to the Bank Proceeds Account pursuant to Section 2.5.1(a)
which are intended to be used for Company payroll); and
(b) second, from funds available to be drawn under the Bank
Credit Facility.
2.4.4 Post-Funding Reallocations. In the event that at any time
the Disbursement Agent determines that the allocations made in any previous
Advance Request pursuant to the foregoing provisions of this Section 2.4 were
erroneous or inaccurate, the parties shall cooperate to rectify such
misallocations by allocating future Advances in a manner that accounts for the
previous misallocation or by using such other methods reasonably determined by
the Disbursement Agent.
2.5 DISBURSEMENTS.
2.5.1 Disbursement Procedures. No later than 2:00 p.m. New York,
New York time on the requested Advance Date, or such later date as may occur
pursuant to Section 2.3.3(a), after the Disbursement Agent has (i) confirmed
receipt of funds in the Disbursement Account from each Bank Lender required to
make an Advance pursuant to the relevant Advance Request other than any portion
of such Advance for which a Letter of Credit is to be issued under the Bank
Credit Facility, (ii) if applicable, received confirmation from the Bank Agent
that the "Issuing Lenders" (as defined in the Bank Credit Agreement) have
advised the Bank Agent that they are committed to issue each requested Letter
of Credit and (iii) transferred funds from the Company's Funds Account, the
2014 Notes Proceeds Account, the Bank Proceeds Account, the Completion Guaranty
Reserve Account and/or the Project Liquidity Reserve Account to the
Disbursement Account as required pursuant to the terms hereof, the Disbursement
Agent shall:
(a) to the extent set forth in the Advance Request transfer
funds to the Bank Proceeds Account and/or the Cash Management Account;
(b) with respect to amounts requested in the Advance Request
to be paid from the Disbursement Account to (i) the Primary Contractors, (ii)
each other Contractor and Subcontractor owed Project Costs to be paid in excess
of $7,000,000 and (iii) any financial institution that will be issuing a
commercial letter of credit for the account of the Company that will be
cash-collateralized in accordance with clause (g) of the definition of "Project
Costs," by wiring funds from the Disbursement Account directly to the account
of such Person as set forth in the Advance Request; and
(c) by transferring any remaining funds in the Disbursement
Account to the Company's Payment Account for further distribution by the
Company to each Contractor and Subcontractor owed Project Costs less than or
equal to $7,000,000 (excluding the Primary Contractors).
2.5.2 Special Procedures for Unpaid Contractors. Notwithstanding
Section 2.5.1 above, the Company agrees that the Disbursement Agent may make
payments from the Disbursement Account to any Contractor for amounts due and
owing to such Contractor under the relevant Contract, or any other
Subcontractors in payment of amounts due and owing to such party from the
Company without further authorization from the Company, and the Company hereby
constitutes and appoints the Disbursement Agent its true and lawful
attorney-in-fact to make such direct payments and this power of attorney shall
be deemed to be a power coupled with an interest and shall be irrevocable;
provided that, except upon the occurrence and continuation of an Event of
Default, the Disbursement Agent shall not exercise its rights under this power
of attorney except to make payments as directed by the Company pursuant to an
Advance Request. No further direction or authorization from the Company shall
be necessary to warrant or permit the Disbursement Agent to make such payments
in accordance with the foregoing sentence and, to the extent funds in the
Disbursement Account are not sufficient to make such payments, the Disbursement
Agent may withdraw the shortfall from any other Company Account and transfer
sufficient funds from such Company Accounts to the Disbursement Account as
needed to make such payments.
2.5.3 Special Procedures for Payroll. From time to time (but no
more frequently than once every week) upon satisfaction of the following
conditions precedent, the Disbursement Agent shall transfer amounts previously
advanced to the Bank Proceeds Account pursuant to Section 2.5.1(a) to the Cash
Management Account:
(a) the Company shall have certified to the Disbursement
Agent that the amount requested to be transferred is necessary to pay Soft
Costs consisting of Company payroll in accordance with the applicable Project
Budget during the ensuing seven (7) days; and
(b) the Company shall have substantiated to the Disbursement
Agent's reasonable satisfaction that amounts previously transferred by the
Disbursement Agent from the Bank Proceeds Account to the Cash Management
Account pursuant to this Section 2.5.3 have been used to pay Project Costs
associated with Company payroll in accordance with the applicable Project
Budget.
2.5.4 Satisfaction of Funding Obligations. All disbursements made
pursuant to Sections 2.5.1, 2.5.2 and 2.5.3 above shall satisfy, in and of
themselves, the obligations of the Disbursement Agent, the Funding Agents and
each Lender hereunder and under the relevant Facility Agreements with respect
to the Advance so made and the Advances with respect to the Bank Credit
Facility and the 2014 Notes Proceeds Account shall be secured by the
Facilities' respective Security Documents, if any, to the same extent as if
made directly to the Company, regardless of the disposition thereof by the
payees of such disbursements.
2.6 PHASE I SUBSTANTIAL COMPLETION DATE PROCEDURES.
(a) No less than thirty (30) days prior to the anticipated
Phase I Substantial Completion Date, the Company shall deliver notice of the
anticipated Phase I Substantial Completion Date to the Disbursement Agent, the
Construction Consultant, the Phase I Architect and the Funding Agents.
Thereafter, in order to cause the Phase I Substantial Completion to occur, the
Company shall deliver to the Construction Consultant, the Disbursement Agent
and each Funding Agent the Company's Phase I Substantial Completion Certificate
relating thereto, appropriately completed and duly executed by a Responsible
Officer of the Company with all attachments thereto.
(b) The Disbursement Agent shall, and shall instruct the
Construction Consultant to, review the Company's Phase I Substantial Completion
Certificate delivered pursuant to Section 2.6(a). In the event that the
Disbursement Agent or the Construction Consultant discovers any errors in the
Company's Phase I Substantial Completion Certificate, they shall request that
the Company revise and resubmit the certificate. The Disbursement Agent shall
promptly instruct the Construction Consultant to, within ten (10) Banking Days
after its receipt of the Company's Phase I Substantial Completion Certificate,
deliver to the Disbursement Agent, the Bank Agent, and the 2014 Notes Indenture
Trustee and the Company the Construction Consultant's Phase I Substantial
Completion Certificate approving or disapproving the Company's Phase I
Substantial Completion Certificate. If the Construction Consultant disapproves
the Company's Phase I Substantial Completion Certificate, the Disbursement
Agent shall instruct the Construction Consultant to provide the Company, in
reasonable detail, its reason(s) for such disapproval.
(c) Within five (5) Banking Days after receipt by the
Disbursement Agent of the Construction Consultant's Phase I Substantial
Completion Certificate approving the Company's Phase I Substantial Completion
Certificate the Disbursement Agent shall, subject to its reasonable
determination that each of the conditions to the Phase I Substantial Completion
has been satisfied, countersign the Company's Phase I Substantial Completion
Certificate and forward the same to the Bank Agent, the 2014 Notes Indenture
Trustee and the Company. The Phase I Substantial Completion Date shall be
deemed to occur on the date the Disbursement Agent countersigns the Company's
Phase I Substantial Completion Certificate relating thereto.
2.7 COMPLETION DATE PROCEDURES.
(a) No less than thirty (30) days prior to the anticipated
Completion Date for a Project, the Company shall deliver notice of the
anticipated Completion Date for such Project to the Disbursement Agent, the
Construction Consultant, the Project Architects and the Funding Agents.
Thereafter, in order to cause Completion for such Project to occur, the Company
shall deliver to the Construction Consultant, the Disbursement Agent and each
Funding Agent the Company's Completion Certificate relating to such Project,
appropriately completed and duly executed by a Responsible Officer of the
Company together with all attachments thereto.
(b) The Disbursement Agent shall, and shall instruct the
Construction Consultant to, review the Company's Completion Certificate for the
applicable Project. In the event that the Disbursement Agent or the
Construction Consultant discovers any errors in the Company's Completion
Certificate, they shall request that the Company revise and resubmit the
certificate. The Disbursement Agent shall promptly instruct the Construction
Consultant to, within ten (10) Banking Days after its receipt of the Company's
Completion Certificate for each Project, deliver to the Disbursement Agent, the
Bank Agent, the 2014 Notes Indenture Trustee and the Company the Construction
Consultant's Completion Certificate with respect to such Project approving or
disapproving the Company's Completion Certificate. If the Construction
Consultant disapproves the Company's Completion Certificate, the Disbursement
Agent shall instruct the Construction Consultant to provide the Company, in
reasonable detail, its reason(s) for such disapproval.
(c) Within five (5) Banking Days after receipt by the
Disbursement Agent of the Construction Consultant's Completion Certificate
approving the Company's Completion Certificate for the applicable Project, the
Disbursement Agent shall, subject to its reasonable determination that each of
the conditions to Completion of such Project has been satisfied, countersign
the Company's Completion Certificate for such Project and forward the same to
the Bank Agent, the 2014 Notes Indenture Trustee and the Company. The
Completion Date for the applicable Project shall be deemed to occur on the date
the Disbursement Agent countersigns the Company's Completion Certificate for
such Project.
2.8 COMPLETION GUARANTY RELEASE PROCEDURES.
(a) In order to cause the Completion Guaranty Release Date
to occur, the Company shall deliver to the Construction Consultant, the
Disbursement Agent and the Bank Agent the Company's Completion Guaranty Release
Certificate appropriately completed and duly executed by a Responsible Officer
of the Company, with all attachments thereto. The Company's Completion Guaranty
Release Certificate shall indicate that the Company believes the Completion
Guaranty Release Conditions have been satisfied, and shall contain all other
information required thereby, including the Company's calculation of the
Reserved Amount (if any).
(b) The Disbursement Agent shall, and shall instruct the
Construction Consultant to, promptly review the Company's Completion Guaranty
Release Certificate. In the event that the Disbursement Agent or the
Construction Consultant discovers any errors in the Company's Completion
Guaranty Release Certificate, it shall so inform the Company, stating in
reasonable detail the revisions required, and shall request that the Company
revise and resubmit the certificate. The Disbursement Agent shall promptly
instruct the Construction Consultant to, within ten (10) Banking Days after its
receipt of the Company's Completion Guaranty Release Certificate, deliver to
the Disbursement Agent, the Bank Agent and the Company, the Construction
Consultant's Completion Guaranty Release Certificate approving or disapproving
the Company's Completion Guaranty Release Certificate. If the Construction
Consultant disapproves the Company's Completion Guaranty Release Certificate,
the Disbursement Agent shall instruct the Construction Consultant to provide
the Company, in reasonable detail, its reason(s) for such disapproval.
(c) Within five (5) Banking Days after receipt by the
Disbursement Agent of the Construction Consultant's Completion Guaranty Release
Certificate approving the Company's Completion Guaranty Release Certificate,
the Disbursement Agent shall, subject to its reasonable determination that each
of the Completion Guaranty Release Conditions has been satisfied, countersign
the Company's Completion Guaranty Release Certificate and forward the same to
the Bank Agent and the Company. The Completion Guaranty Release Date shall be
deemed to occur on the date the Disbursement Agent countersigns the Company's
Completion Guaranty Release Certificate.
(d) On the Completion Guaranty Release Date, the
Disbursement Agent shall release to the Company all amounts on deposit in the
Completion Guaranty Deposit Account, excluding the Reserved Amounts, and the
amounts so released shall constitute a dividend from the Completion Guarantor
to the Company.
2.9 FINAL COMPLETION PROCEDURES.
2.9.1 Procedures.
(a) No less than thirty (30) days prior to the anticipated
Final Completion Date for a Project, the Company shall deliver notice of the
anticipated Final Completion Date for such Project to the Disbursement Agent,
the Construction Consultant, the Project Architects and the Funding Agents.
Thereafter, in order to cause Final Completion for such Project to occur, the
Company shall deliver to the Construction Consultant, the Disbursement Agent
and each Funding Agent the Company's Final Completion Certificate relating to
such Project, appropriately completed and duly executed by a Responsible
Officer of the Company together with all attachments thereto.
(b) The Disbursement Agent shall, and shall instruct the
Construction Consultant to, review the Company's Final Completion Certificate
for the applicable Project. In the event that the Disbursement Agent or the
Construction Consultant discovers any errors in the Company's Final Completion
Certificate, they shall request that the Company revise and resubmit the
certificate. The Disbursement Agent shall promptly instruct the Construction
Consultant to, within ten (10) Banking Days after its receipt of the Company's
Final Completion Certificate for each Project, deliver to the Disbursement
Agent, the Bank Agent, the 2014 Notes Indenture Trustee and the Company, the
Construction Consultant's Final Completion Certificate with respect to such
Project approving or disapproving the Company's Final Completion Certificate.
If the Construction Consultant disapproves the Company's Final Completion
Certificate, the Disbursement Agent shall instruct the Construction Consultant
to provide the Company, in reasonable detail, its reason(s) for such
disapproval.
(c) Within five (5) Banking Days after receipt by the
Disbursement Agent of the Construction Consultant's Final Completion
Certificate approving the Company's Final Completion Certificate for the
applicable Project, the Disbursement Agent shall, subject to its reasonable
determination that each of the conditions to Final Completion of such Project
has been satisfied, countersign the Company's Final Completion Certificate for
such Project and forward the same to the Bank Agent, the 2014 Notes Indenture
Trustee and the Company. The Final Completion Date for the applicable Project
shall be deemed to occur on the date the Disbursement Agent countersigns the
Company's Final Completion Certificate for such Project.
2.9.2 Phase I Project. On the Final Completion Date for the Phase
I Project, the Disbursement Agent shall release to the Company any amounts in
excess of $30,000,000 then on deposit in the Completion Guaranty Deposit
Account. Any amounts so released to the Company from the Completion Guaranty
Deposit Amount shall constitute a dividend from the Completion Guarantor to the
Company.
2.9.3 Last Project. On the Last Project Final Completion Date, the
Disbursement Agent shall release to the Company all amounts on deposit in the
Company Accounts, other than the Project Liquidity Reserve Account which shall
be released as provided in Section 2.2.8. Any amounts so released to the
Company from the Completion Guaranty Deposit Account shall constitute a
dividend from the Completion Guarantor to the Company.
2.10 NO APPROVAL OF WORK. The making of any Advance shall not be
deemed an approval or acceptance by the Disbursement Agent, any Funding Agent,
any Lender or the Construction Consultant (except to the extent set forth in
the Construction Consultant Engagement Agreement, and then only for the benefit
of the Lenders) of any work, labor, supplies, materials or equipment furnished
or supplied with respect to the Projects.
2.11 SECURITY. The Obligations shall be secured by the Project
Security in accordance with the Security Documents. Further, all funds advanced
by the Bank Lenders to complete the Projects or to protect the rights and
interests of the Secured Parties under the Financing Agreements are deemed to
be obligatory advances and are to be added to the total indebtedness secured by
each of the Security Documents (including the Deeds of Trust). All sums so
advanced shall be secured by each such Deed of Trust with the same priority of
lien as the security for any other obligations secured thereunder.
ARTICLE 3.
- CONDITIONS PRECEDENT TO
THE CLOSING DATE, PHASE II APPROVAL DATE AND ADVANCES
-----------------------------------------------------
3.1 CONDITIONS PRECEDENT TO THE CLOSING DATE. The occurrence of
the Closing Date is subject to the prior satisfaction of each of the conditions
precedent hereinafter set forth in this Section 3.1 in form and substance
satisfactory to each of the Bank Agent and the Representatives of the Initial
Purchasers in its sole discretion. Subject to Section 3.5, by executing this
Agreement (or, in the case of (a) the Representatives of the Initial
Purchasers, by purchasing the 2014 Notes and (b) the Bank Lenders, by becoming
a party to the Bank Credit Agreement) each of the Bank Agent, the Bank Lenders
and the Representatives of the Initial Purchasers shall be deemed to have
confirmed that it has become satisfied that each of the following conditions
precedent applicable to its Facility in this Section 3.1 has been satisfied.
3.1.1 Financing Agreements and Material Project Documents.
Delivery to each of the Bank Agent, the Representatives of the Initial
Purchasers and the Disbursement Agent (with such number of originally executed
copies as they may reasonably request) of (a) executed originals of each
Financing Agreement (other than those Financing Agreements, including the Phase
II Deliverables, that are not required to be executed and delivered on the
Closing Date) (collectively, the "Closing Financing Agreements"), and true and
correct copies of each Material Project Document then in effect and any
supplements or amendments thereto then in effect (including each Payment and
Performance Bond securing the Phase I Primary Construction Contract and each
Subcontract with a total contract amount or value of more than $25,000,000 with
an endorsement thereto naming the Collateral Agent as additional obligee and
otherwise complying with the requirements of Section 5.9), all of which shall
be in form and substance satisfactory to each of the Bank Agent and the
Representatives of the Initial Purchasers, shall have been duly authorized,
executed and delivered by the parties thereto, and each such Material Project
Document shall be certified by a Responsible Officer of the Company as of the
Closing Date as being true, complete and correct and in full force and effect
and (b) evidence satisfactory to each of the Bank Agent and the Representatives
of the Initial Purchasers that each such Material Project Document and each
such Closing Financing Agreement is in full force and effect and that no party
to any such Material Project Document or Closing Financing Agreement is or, but
for the passage of time or giving of notice or both will be, in breach of any
obligation thereunder.
3.1.2 Corporate and/or LLC Authority of the Loan Parties. Delivery
to each of the Bank Agent, the Representatives of the Initial Purchasers and
the Disbursement Agent of (a) a certified copy of the Articles of
Incorporation, Articles of Organization or other similar formation document(s)
of the each of the Loan Parties, (b) good standing certificates for each of the
Loan Parties issued by the Secretary of State of Nevada or any other state of
incorporation or organization, (c) a certified copy of the bylaws or a copy of
the Operating Agreement of each of the Loan Parties, certified by a Responsible
Officer of each such Loan Party or a member of such Loan Party, as applicable,
and (d) a copy of one or more resolutions or other authorizations of the Loan
Parties certified by a Responsible Officer of each such Loan Party, as being in
full force and effect on the Closing Date, authorizing the Advances herein
provided for and the execution, delivery and performance of this Agreement and
the other Operative Documents and any instruments or agreements required
hereunder or thereunder to which each such entity is a party.
3.1.3 Incumbency of the Loan Parties. Delivery to each of the Bank
Agent, the Representatives of the Initial Purchasers and the Disbursement Agent
of a certificate from each of the Loan Parties satisfactory in form and
substance to each of the Bank Agent and the Representatives of the Initial
Purchasers signed by a Responsible Officer of each such Loan Party, and dated
as of the Closing Date, as to the incumbency of the Person or Persons
authorized to execute and deliver this Agreement and the other Material Project
Documents (not theretofore executed) and Closing Financing Agreements and any
documents, instruments or agreements required hereunder or thereunder to which
each such entity is a party.
3.1.4 Insurance.
(a) Policies. Insurance complying with the requirements of
Exhibit L shall be in place and in full force and effect.
(b) The Company Insurance Broker's Certificate. Delivery to
each of the Bank Agent, the Representatives of the Initial Purchasers and the
Disbursement Agent of (i) a certificate, in the form of Exhibit B-4 attached
hereto or otherwise in form and substance reasonably satisfactory to each of
the Bank Agent and the Representatives of the Initial Purchasers from the
Company's insurance broker(s), dated as of the Closing Date and identifying
underwriters, type of insurance, insurance limits and policy terms, listing the
special provisions required as set forth in Exhibit L, describing the insurance
obtained and stating that such insurance is in full force and effect and that
all premiums then due thereon have been paid and (ii) certified copies of all
policies evidencing such insurance (or a binder, commitment or certificates
signed by the insurer or a broker authorized to bind the insurer along with a
commitment to deliver certified copies of the policies within forty-five (45)
days after the Closing Date) meeting the requirements of Exhibit L and
otherwise in form and substance reasonably satisfactory to each of the Bank
Agent and the Representatives of the Initial Purchasers.
(c) Company's Insurance Certificate. The Company shall have
identified, in the Company's Closing Certificate, the type of insurance,
insurance limits and policy terms of any insurance then required to be obtained
by any Contractor under the Material Project Documents then in effect and shall
have certified that, to the best of Company's knowledge, all insurance required
to be obtained by each Contractor under such Material Project Document or
Exhibit L is in full force and effect if the same is required to be in effect
and that if then required to be in effect, all premiums then due thereon have
been paid, and that such insurance complies with the requirement of such
Material Project Documents and Exhibit L.
(d) Insurance Advisor's Closing Certificate. Delivery to
each of the Bank Agent, the Representatives of the Initial Purchasers and the
Disbursement Agent of the Insurance Advisor's Closing Certificate,
substantially in the form of Exhibit B-3, or otherwise in form and substance
reasonably satisfactory each of to the Bank Agent and the Representatives of
the Initial Purchasers.
3.1.5 Project Security. All of the Security Documents other than
those not required to be delivered as of the Closing Date, in form and
substance satisfactory to (a) the Bank Agent and the Representatives of the
Initial Purchasers, shall have been executed and delivered to the Secured
Parties thereunder and shall be in full force and effect and all actions
necessary or desirable, including all filings, in the opinion of the Funding
Agents party thereto to perfect the security interests granted therein as a
valid security interest over the Project Security having the priority
contemplated therefor by this Agreement, the Intercreditor Agreement and the
Security Documents shall have been taken or made (except for any filings or
recordings to perfect the Secured Parties' lien in any motor vehicles).
3.1.6 Opinions. Each of the Bank Agent, the Representatives of the
Initial Purchasers and the Disbursement Agent shall have received the opinions
identified in Exhibit N.
3.1.7 Company's Closing Certificate. Delivery to each of the Bank
Agent, the Representatives of the Initial Purchasers and the Disbursement Agent
of the Company's Closing Certificate (which shall include, among other things,
a certification as to the solvency of the Company and each of the Loan Parties
on a consolidated basis after giving pro forma effect to the transactions
contemplated hereby) signed by a Responsible Officer of each Loan Party.
3.1.8 Projections. The Bank Lenders and the Representatives of the
Initial Purchasers shall have received Projections for the seven year period
following the Closing Date in form and substance satisfactory to the Bank
Lenders and the Representatives of the Initial Purchasers.
3.1.9 Advance Request. Delivery to the Disbursement Agent, the
Bank Agent and the Construction Consultant of an Advance Request in form and
substance satisfactory to the Bank Agent and the Disbursement Agent. Such
Advance Request shall request an Advance in an amount sufficient to pay all
fees and expenses then due and payable to the Secured Parties and their
respective advisors and consultants. Neither delivery of a Construction
Consultant's Advance Certificate nor delivery of an advance certificate from
the Phase I Architect (in the Form of Exhibit C-3) approving the requested
Advance shall be required for the initial Advance Request on the Closing Date.
3.1.10 Consultant Certificates and Report. Delivery to each of the
Bank Agent, the Representatives of the Initial Purchasers and the Disbursement
Agent of the Construction Consultant's Closing Certificate with the
Construction Consultant's Report in form and substance reasonably satisfactory
to each of the Bank Agent and the Representatives of the Initial Purchasers
attached thereto.
3.1.11 Litigation. No action, suit, proceeding or investigation of
any kind shall have been instituted or, to the Company's knowledge, pending or
threatened, including actions or proceedings of or before any Governmental
Authority, to which any Loan Party, the Phase I Project or, to the knowledge of
the Company, any Major Project Participant, is a party or is subject, or by
which any of them or any of their properties or the Phase I Project are bound
that could reasonably be expected to have a Material Adverse Effect, nor is the
Company aware of any reasonable basis for any such action, suit, proceeding or
investigation and no injunction or other restraining order shall have been
issued and no hearing to cause an injunction or other restraining order to be
issued shall be pending or noticed with respect to any action, suit or
proceeding if the same reasonably could be expected to have a Material Adverse
Effect.
3.1.12 Fees. All amounts required to be paid to or deposited with
the Funding Agents, the Representatives of the Initial Purchasers, the
Disbursement Agent or the Independent Consultants and all taxes, fees and other
costs payable in connection with the execution, delivery, recordation and
filing of the documents and instruments referred to in this Section 3.1, shall
have been paid or deposited, as the case may be, in full. The Company shall
have paid or arranged for payment out of the requested Advance of all fees,
expenses and other charges then due and payable by it under this Agreement or
other Financing Agreements or under any agreements between the Company and any
of the Independent Consultants.
3.1.13 Phase I Project Budget. Delivery to each of the
Disbursement Agent, the Bank Agent, the Representatives of the Initial
Purchasers and the Construction Consultant of a budget substantially in the
form of Exhibit F-1 (as amended from time to time in accordance with the terms
hereof, the "Phase I Project Budget") for all anticipated Project Costs of the
Phase I Project (including, without limitation, Project Costs incurred prior
to, as well as after, the Closing Date including closing costs and Debt Service
expected to be incurred prior to the Phase I Opening Date), which includes a
drawdown schedule for Advances necessary to achieve Final Completion for the
Phase I Project and such other information and supporting data as any of the
Bank Agent, the Representatives of the Initial Purchasers, the Disbursement
Agent or the Construction Consultant may reasonably require, together with a
balanced statement of sources and uses of proceeds (and any other funds
necessary to complete the Phase I Project), broken down by Facility and Line
Item Category, which Phase I Project Budget, drawdown schedule and statement of
sources and uses shall be reasonably satisfactory to the Construction
Consultant, as and to the extent certified to in the Construction Consultant's
Closing Certificate, and to the Bank Lenders and the Representatives of the
Initial Purchasers, it being acknowledged by the Bank Lenders and the
Representatives of the Initial Purchasers, that the level of detail of the
Phase I Project Budget shall be commensurate with the state of completion of
the Plans and Specifications relating to the Phase I Project.
3.1.14 Phase I Project Schedule and Schedule of Key Dates.
Delivery to the Disbursement Agent, the Bank Agent, the Representatives of the
Initial Purchasers and the Construction Consultant of a schedule for
construction and completion of the Phase I Project substantially in the form of
Exhibit G-1 (as amended from time to time in accordance with the terms hereof,
the "Phase I Project Schedule") which demonstrates that the Phase I Opening
Date is expected to occur on or before the Phase I Scheduled Opening Date, the
Phase I Substantial Completion Date is expected to occur on or before the Phase
I Scheduled Substantial Completion Date and the Phase I Completion Date is
expected to occur on or before the Phase I Scheduled Completion Date and which
is otherwise reasonably satisfactory to the Construction Consultant, as
certified to in the Construction Consultant's Closing Certificate.
3.1.15 Financial Statements. Delivery to the Disbursement Agent,
the Bank Agent and the Representatives of the Initial Purchasers of the most
recent annual consolidated financial statements and most recent quarterly
consolidated financial statements from the Company and its consolidated
Subsidiaries, together with certificates from a Responsible Officer of such
Person certifying such financial statements.
3.1.16 Material Adverse Effect. Since December 31, 2003, after
giving effect to the corporate restructuring, there shall not have occurred any
material adverse condition or material adverse change in or affecting the Phase
I Project Budget, the economics or feasibility of developing and/or
constructing and/or operating the Phase I Project, or business, assets,
liabilities, property, condition (financial or otherwise), results of
operations, prospects, or management of the Company and the other Loan Parties
taken as a whole, or any Project Credit Support Provider, or calls into
question in any material respect the Projections or any of the material
assumptions on which the Projections were prepared, or any other event,
development or circumstance that has caused or resulted in or could reasonably
be expected to cause or result in a Material Adverse Effect as certified by a
Responsible Officer of the Company in the Company's Closing Certificate.
3.1.17 Events of Default. No Event of Default or Potential Event
of Default shall have occurred and be continuing, as certified by a Responsible
Officer of the Company in the Company's Closing Certificate.
3.1.18 Permits.
(a) All Permits described in Exhibit J-1 as required to
have been obtained by any Loan Party or any Contractor by the Closing Date
shall have been issued and be in full force and effect and not subject to
current legal proceedings or to any unsatisfied conditions (that are required
to be satisfied by the Closing Date) that could reasonably be expected to
materially adversely modify any Permit, to revoke any Permit, to restrain or
prevent the construction or operation of the Phase I Project or otherwise
impose material adverse conditions on the Phase I Project or the financing
contemplated under the Financing Agreements and all applicable appeal periods
with respect thereto shall have expired.
(b) With respect to any of the Permits described in Exhibit
J-1 as not yet required to be obtained by any Loan Party or any Contractor
(other than Gaming/Liquor Licenses and any massage or second-hand dealer
licenses to be issued by Clark County), (i) each such Permit is of a type that
is routinely granted on application and compliance with the conditions for
issuance and (ii) no facts or circumstances exist which indicate that any such
Permit will not be timely obtainable without undue expense or delay by the
Company or the applicable Person, respectively, prior to the time that it
becomes required.
3.1.19 Buy-Sell. The Buy-Sell Agreement is in full force
and effect.
3.1.20 Third Party Consents. Delivery to the Disbursement Agent
and each of the Bank Agent and the Representatives of the Initial Purchasers of
Consents from (a) the Phase I Primary Contractor, (b) Construction Guarantor,
(c) the Phase I Architect and (d) the Phase I Aqua Theater and Showroom
Designer, each in form of Exhibit P or otherwise in form and substance
reasonably satisfactory to the Bank Agent and the Representatives of the
Initial Purchasers.
3.1.21 Representations and Warranties. Each representation and
warranty of (a) each Loan Party set forth in Article 4 hereof, in the Bank
Credit Agreement or in any of the other Operative Documents shall be true and
correct in all material respects on the date made in the applicable document
and (b) to the Company's knowledge, each Major Project Participant (other than
any Loan Party) set forth in any of the Operative Documents shall be true and
correct in all material respects as of the date made in the applicable
document, unless the failure of any such representation and warranty referred
to in this clause (b) to be true and correct could not reasonably be expected
to have a Material Adverse Effect, in each case, as certified by the Company in
the Company's Closing Certificate.
3.1.22 Service of Process. Delivery to the Funding Agents and the
Disbursement Agent of a letter from CT Corporation System or any other Person
reasonably satisfactory to each of the Bank Agent and the Representatives of
the Initial Purchasers consenting to its appointment by each Loan Party in each
case in form and substance reasonably acceptable to each of the Bank Agent and
the Representatives of the Initial Purchasers, as each such Person's agent to
receive service of process in New York, New York.
3.1.23 Establishing of Company Accounts; 2014 Notes Proceeds. (a)
Each of the Company Accounts shall have been established pursuant hereto and
the Collateral Account Agreements; (b) the 2014 Notes shall have been issued in
an principal amount at maturity of One Billion Three Hundred Million Dollars
($1,300,000,000), and net proceeds of Seven Hundred Thirty Million, Seventy-Two
Thousand, Five Hundred Fifty-Six Dollars and Thirty-Seven Cents
($730,072,556.37) shall have been deposited in the 2014 Notes Proceeds Account;
(c) funds in an amount equal to Fifty Million Dollars ($50,000,000) shall be on
deposit in the Completion Guaranty Deposit Account, and (d) funds in an amount
equal to Thirty Million Dollars ($30,000,000) shall be on deposit in the
Project Liquidity Reserve Account.
3.1.24 Funding of Equity. The Company shall have certified in the
Company's Closing Certificate (as confirmed by the Construction Consultant to
the extent set forth in the Construction Consultant's Closing Certificate) that
(a) the amounts on deposit in the Project Liquidity Reserve Account have been
irrevocably and unconditionally contributed to the Company; and (b) in addition
thereto, cash or property in an amount not less than Four Hundred Million
Dollars ($400,000,000.00) has been irrevocably and unconditionally contributed
to the Company.
3.1.25 A.L.T.A. Surveys. The Disbursement Agent and each of the
Bank Agent and the Representatives of the Initial Purchasers shall have
received A.L.T.A. surveys of the Site and the Site Easements, satisfactory in
form and substance to the Title Insurer and each of the Bank Agent and the
Representatives of the Initial Purchasers, dated no earlier than sixty (60)
days prior to the Closing Date and certified to each such Person by a licensed
surveyor satisfactory to each such Person, showing (a) as to the Site, the
exact location and dimensions thereof, including the location of all means of
access thereto, the perimeters within which all of foundations for the Phase I
Project are located, and all easements relating thereto; (b) as to the Site
Easements, the exact location and dimensions thereof to the extent capable of
being described, including the location of all means of access thereto, and all
improvements or other encroachments in or on the Site Easements; (c) the
existing utility facilities servicing the Phase I Project (including water,
electricity, gas, telephone, sanitary sewer and storm water distribution and
detention facilities); (d) that such existing improvements do not encroach or
interfere (in any manner that could reasonably be expected to have a Material
Adverse Effect) with adjacent property or existing easements or other rights
(whether on, above or below ground), and that there are no gaps, gores,
projections, protrusions or other survey defects other than Permitted
Encumbrances applicable to such real property; (e) whether the Site or any
portion thereof is located in a special earthquake or flood hazard zone; and
(f) that there are no other matters that could reasonably be expected to be
disclosed by a survey constituting a defect in title other than the Permitted
Encumbrances.
3.1.26 Title Policies. The Company shall have delivered to the
Collateral Agent, a lender's A.L.T.A. policy of title insurance, or a
commitment to issue such policy, in the amount of $2,300,000,000. Such policy
or commitment shall (i) include such endorsements as are required by the Bank
Agent and the Representatives of the Initial Purchasers, respectively, (ii)
reasonably be reinsured by such reinsurance as is satisfactory to the Bank
Agent and the Representatives of the Initial Purchasers, respectively, (iii) be
reasonably issued by Title Insurer in form and substance reasonably
satisfactory to the Bank Agent and the Representatives of the Initial
Purchasers, respectively, and (iv) insure (or agree to insure) that:
(a) The Company has fee simple title to the Site and the
Site Easements (other than the Mortgaged Property encumbered or to be
encumbered by Wynn Sunrise and Wynn Golf) and a valid leasehold estate or
easement interest, as the case may be, in the portions of the Site described in
the Affiliate Real Estate Agreements, free and clear of liens, encumbrances and
other exceptions to title except those exceptions specified on Exhibit K-1
("Wynn Las Vegas Permitted Encumbrances");
(b) Wynn Golf has fee simple title to the Golf Course Land
(including the Home Site Land and the Wynn Home Site) and the Golf Course Land
Easements, free and clear of liens, encumbrances and other exceptions to title
except those exceptions specified on Exhibit K-2 ("Wynn Golf Permitted
Encumbrances");
(c) Wynn Sunrise has fee simple title to the Wynn Sunrise
Land and the Wynn Sunrise Land Easements, free and clear of liens, encumbrances
and other exceptions to title except those exceptions specified on Exhibit K-3
("Wynn Sunrise Permitted Encumbrances"); and
(d) each Deed of Trust is (or will be when recorded) a
valid, first priority lien on the "Trust Estate" (as defined in each Deed of
Trust), free and clear of all liens, encumbrances and exceptions to title
whatsoever, other than (i) Wynn Las Vegas Permitted Encumbrances in the case of
the Deeds of Trust executed by the Company, (ii) Wynn Golf Permitted
Encumbrances in the case of the Deeds of Trust executed by Wynn Golf, and (iii)
Wynn Sunrise Permitted Encumbrances in the case of the Deeds of Trust executed
by Wynn Sunrise.
3.1.27 Commitment and Fee Letters. The letters regarding the fees
of the Bank Agent, the Collateral Agent, the Nevada Collateral Agent and the
Disbursement Agent, respectively, shall have been executed and delivered. The
Company shall have complied with all of its obligations under and agreements in
the Commitment Letter and the various fee letters entered into with the
Arrangers, the Bank Agent, the Collateral Agent, the Nevada Collateral Agent or
the Disbursement Agent then required to be complied with.
3.1.28 Phase I Plans and Specifications. The Company shall have
delivered to the Construction Consultant Plans and Specifications for the Phase
I Project in form and substance reasonably satisfactory to the Construction
Consultant, as certified to in the Construction Consultant's Closing
Certificate. Subject to approval of the finalized Plans and Specifications for
the Phase I Project by the proper Governmental Authorities, such Plans and
Specifications for the Phase I Project shall constitute Final Plans and
Specifications.
3.1.29 Corporate and Capital Structure; Management. The corporate
organization structure, capital structure and ownership of the Project Credit
Support Providers, the Company and its Subsidiaries shall be satisfactory to
each of the Bank Agent and the Representatives of the Initial Purchasers. The
management structure of the Company and its Subsidiaries shall be satisfactory
to each of the Bank Agent and the Representatives of the Initial Purchasers.
3.1.30 Real Estate Appraisals. Each of the Bank Agent, the
Representatives of the Initial Purchasers and the Disbursement Agent shall have
received a FIRREA appraisal of the Site from an independent real estate
appraiser reasonably satisfactory to the Bank Agent and the Representatives of
the Initial Purchasers, in form, scope and substance satisfactory to each such
Person, satisfying the requirements of any applicable laws and regulations.
3.1.31 Environmental Reports. Each of the Bank Agent, the
Representatives of the Initial Purchasers and the Disbursement Agent shall have
received (a) the Phase I Environmental Site Assessment for the Site and the
Site Easements (excluding the Wynn Sunrise Land and Wynn Sunrise Easements)
conducted by Terracon and dated November 22, 2004 and the Phase I Environmental
Site Assessment for the Wynn Sunrise Land and Wynn Sunrise Easements conducted
by Terracon and dated November 5, 2004 (collectively, the "Phase I Reports")
and (b) that certain reliance letter from Terracon dated December 7, 2004.
3.1.32 In Balance Requirement. The Phase I Project shall be In
Balance.
3.1.33 No Restrictions. No order, judgment or decree of any court,
arbitrator or governmental authority shall purport to enjoin or restrain any of
the Bank Lenders from making the Advances to be made by them on the Closing
Date.
3.1.34 Violation of Certain Regulations. The making of the
requested Advance shall not violate any law including Regulation T, Regulation
U or Regulation X of the Board of Governors of the Federal Reserve System.
3.1.35 Notices of Pledges of Water Permits. The Company and Wynn
Golf shall have executed duplicate original notices of pledge in form and
substance reasonably satisfactory to the Bank Agent and the Representatives of
the Initial Purchasers describing Nevada Water Permit Nos. 69513 (Certificate
no. 4765), 69514 (Certificate no. 4766), 69515 (Certificate no. 7828), 69516
(Certificate no. 7827), 69517 (Certificate no. 7829) and 69518 (Certificate no.
7830), 69512 (Certificate no. 4731), 60164 (Certificate no. 15447), 60165
(Certificate no. 15448) and such notices of pledge shall have been completed
and delivered to the Disbursement Agent. Upon the occurrence of the Closing
Date, the Company hereby authorizes the Disbursement Agent to complete the
recording information from each Deed of Trust signed by the Company and Wynn
Golf and to file them with the Nevada State Engineer promptly after recordation
of such Deeds of Trust, together with a Report of Conveyance and Abstract of
Title for each permit.
3.1.36 Liens. The Company shall have delivered or caused to be
delivered to the Disbursement Agent a lien release summary chart substantially
in the form of Appendix VI to Exhibit C-1 and the following releases:
(a) Unconditional Releases. Duly executed acknowledgments
of payments and unconditional releases of mechanics' and materialmen's liens
substantially in the form of Exhibit H-1 from the Contractors and
Subcontractors listed in clauses (i) and (ii) below for all work, services and
materials, including equipment and fixtures of all kinds, done, performed or
furnished for the construction of each Project through October 31, 2004, except
for such work, services and materials the payment for which does not exceed, in
the aggregate $10,000,000 and is being disputed in good faith, so long as (1)
such proceedings shall not involve any substantial danger of the sale,
forfeiture or loss of either Project, or any Mortgaged Property, as the case
may be, title thereto or any interest therein and shall not interfere in any
material respect with either Project or any Mortgaged Property and (2) adequate
cash reserves have been provided therefor through an allocation in the Phase I
Anticipated Cost Report. The Persons required to provide such lien releases
are:
(i) The Primary Contractors and each of their first
tier trade subcontractors and materialmen under the Primary Construction
Contracts, in each case performing work with a contract price (or expected
aggregate amount to be paid in the case of "cost-plus" contracts) in excess of
$25,000; and
(ii) (A) Each Contractor party to a "fixed price"
contract and (B) each other Contractor and each of its first tier trade
subcontractors and materialmen, in each case performing work with a contract
price (or expected aggregate amount to be paid in the case of "cost-plus"
contracts) in excess of $100,000 (or with respect to suppliers and vendors who
are located outside the United States and do not provide labor at the Site,
$200,000).
(b) Conditional Releases. Duly executed acknowledgments of
payments and releases of mechanics' and materialmen's liens substantially in
the form of Exhibit H-2 from the Contractors and Subcontractors listed in
clauses (i) and (ii) below for all work, services and materials, including
equipment and fixtures of all kinds, done, performed or furnished for the
construction of each Project from November 30, 2004, except for such work,
services and materials the payment for which does not exceed, in the aggregate
$10,000,000 and is being disputed in good faith, so long as (1) such
proceedings shall not involve any substantial danger of the sale, forfeiture or
loss of either Project or any Mortgaged Property, as the case may be, title
thereto or any interest therein and shall not interfere in any material respect
with either Project or any Mortgaged Property and (2) adequate cash reserves
have been provided therefor through an allocation in the Phase I Anticipated
Cost Report. The Persons required to provide such lien releases are:
(i) The Primary Contractors and each of its first tier
trade subcontractors and materialmen under the Primary Construction Contracts,
in each case performing work with a contract price (or expected aggregate
amount to be paid in the case of "cost-plus" contracts) in excess of $25,000;
(ii) (A) Each Contractor party to a "fixed price"
contract and (B) each other Contractor and each of its first tier trade
subcontractors and materialmen, in each case performing work with a contract
price (or expected aggregate amount to be paid in the case of "cost-plus"
contracts) in excess of $100,000 (or, with respect to suppliers and vendors who
are located outside the United States and do not provide labor at the Site,
$200,000).
Notwithstanding the foregoing, if the Company or any Contractor
does not obtain any of the foregoing waivers and releases of liens required
under clauses (a) or (b) above (collectively, "Closing Date Outstanding
Releases"), then instead of delivering such Closing Date Outstanding Releases,
the Company may obtain and provide to the Disbursement Agent from the Title
Insurer bonds or endorsements to the title insurance policies reasonably
satisfactory to the Disbursement Agent insuring the lien free status of the
work and the Mortgaged Property; provided, however, that at no time shall the
aggregate of all Closing Date Outstanding Releases represent work with an
aggregate value in excess of $2,000,000.
3.1.37 Phase I Excess Cash Flow Schedule. Delivery to each of the
Disbursement Agent, the Bank Agent, the Arrangers, the Representatives of the
Initial Purchasers and the Construction Consultant of the Phase I Projected
Excess Cash Flow Schedule substantially in the form of Exhibit F-7 identifying
the anticipated "Excess Cash Flows" (as such term is defined in the Bank Credit
Agreement) for the Phase I Project designated by the Company to be used to pay
Phase II Project Costs (if the Phase II Approval Date occurs), broken down by
quarter for each quarter from the then anticipated Phase I Opening Date through
the then anticipated Phase II Final Completion Date, which Phase I Projected
Excess Cash Flow Schedule shall be reasonably satisfactory to each of the
Disbursement Agent, the Bank Agent, the Arrangers, the Representatives of the
Initial Purchasers and the Construction Consultant.
3.1.38 Closing Date Transactions. The Closing Transactions shall
have occurred or shall be occurring substantially concurrently herewith.
3.1.39 Other Documents. The Disbursement Agent and each of the
Bank Agent and the Representatives of the Initial Purchasers shall have
received such other documents and evidence as are customary for transactions of
this type as each such Person may reasonably request in connection with the
transactions contemplated hereby.
3.2 CONDITIONS PRECEDENT TO ADVANCES TO THE PHASE I PROJECT AND,
AFTER PHASE II APPROVAL DATE, THE PHASE II PROJECT. Subject to Section 3.3, the
obligation of the Bank Lenders, the 2014 Notes Indenture Trustee and the
Disbursement Agent to make Advances and to pay Project Costs with respect to
the Phase I Project and, from and after the Phase II Approval Date, the Phase
II Project are subject to the prior satisfaction of each of the following
conditions precedent in form and substance reasonably satisfactory to the
Disbursement Agent in its reasonable discretion:
3.2.1 Certain Operative Documents. Each Material Project Document
and each Financing Agreement shall be in full force and effect (unless it has
expired in accordance with its terms), without amendment since the respective
date of its execution and delivery, and in a form which was provided to the
Bank Agent and the Representatives of the Initial Purchasers prior to the
Closing Date except (a) for amendments or terminations to Material Project
Documents not prohibited by Section 6.1, the Bank Credit Agreement or the 2014
Notes Indenture, (b) to the extent the Company has entered into a replacement
Material Project Document to the extent permitted by Section 7.1.6, or if
pursuant to such Section the Company is not required to enter into a
replacement Material Project Document, and each certificate delivered by the
Company with respect to any such document shall be true and correct in all
material respects, as certified by the Company in the relevant Advance Request,
(c) amendments to the Financing Agreements to the extent not prohibited under
the Facility Agreements and (d) prior to the Phase II Approval Date, the Phase
II Deliverables.
3.2.2 Representations and Warranties. Each representation and
warranty of (a) each Loan Party set forth in Article 4 hereof or in any of the
other Financing Agreements shall be true and correct in all material respects
as if made on such date (except that any representation and warranty that
relates expressly to an earlier date shall be deemed made only as of such
earlier date), (b) each Loan Party set forth in each Material Project Document
was true and correct in all material respects on the date made in the
applicable document and (c) to the Company's knowledge, each Major Project
Participant (other than any Loan Party) set forth in any of the Material
Project Documents was true and correct in all material respects on the date
made in the applicable document, unless the failure of any such representation
and warranty referred to in clauses (b) or (c) to be true and correct could not
reasonably be expected to have a Material Adverse Effect, in each case, as
certified by the Company in the relevant Advance Request.
3.2.3 Events of Default. No Event of Default or Potential Event of
Default shall have occurred and be continuing or could reasonably be expected
to result from such Advance, as certified by the Company in the relevant
Advance Request.
3.2.4 Notice of Advance Request. The Disbursement Agent shall have
received and shall have been notified that the Funding Agents have received a
Notice of Advance Request in accordance with Section 2.3.1(e) with respect to
the requested Advance.
3.2.5 Advance Request and Certificate. The Company shall have
delivered to the Disbursement Agent and the Construction Consultant an Advance
Request in each case, with the Required Contractor and Architect Advance
Certificate and all other attachments, exhibits and certificates required by
Sections 2.3.1(a), (b), (c) and (d) as the case may be (and, solely with
respect to any December 2004 Advance Request, with such changes to the form of
Advance Request (and any attachments, exhibits or certificates thereto) as are
reasonably acceptable to the Disbursement Agent). Such Advance Request shall
request an Advance in an amount estimated at the time to be sufficient to pay
all amounts due and payable for work performed on the Projects through the last
day of the period covered by such Advance Request. The Disbursement Agent shall
have reviewed and evaluated the same as provided in Section 2.3.2(a) and,
subject to Section 2.3.2(a)(ii), shall not have become aware of any material
error, inaccuracy, misstatement or omission of fact in an Advance Request or an
attachment, exhibit or certificate attached thereto or information provided by
the Company upon the reasonable request of the Disbursement Agent.
3.2.6 Consultant's Certificates. Delivery to the Disbursement
Agent of the Construction Consultant's Advance Certificate with respect to the
requested Advance as required by Section 2.3.1(f), substantially in the form of
Exhibit C-2, approving (subject to the proviso in Section 2.3.1(f)) the
corresponding Advance Request (and, solely with respect to any December 2004
Advance Request, with such changes to the form of Construction Consultant's
Advance Certificate as are reasonably acceptable to the Disbursement Agent).
3.2.7 Liens. The Company shall have delivered or caused to be
delivered to the Disbursement Agent an updated lien release summary chart
substantially in the form of Appendix VI to the Company's Advance Request and
the following releases:
(a) Unconditional Releases. Duly executed acknowledgments of
payments and unconditional releases of mechanics' and materialmen's liens
substantially in the form of Exhibit H-1 from the Contractors and
Subcontractors listed in clauses (i) and (ii) below for all work, services and
materials, including equipment and fixtures of all kinds, done, performed or
furnished for the construction of the Projects through the last day covered by
the immediately preceding Advance Request, except for such work, services and
materials the payment for which does not exceed, in the aggregate $10,000,000
and is being disputed in good faith, so long as (1) such proceedings shall not
involve any substantial danger of the sale, forfeiture or loss of the Projects,
or any Mortgaged Property, as the case may be, title thereto or any interest
therein and shall not interfere in any material respect with the Projects or
any Mortgaged Property and (2) adequate cash reserves have been provided
therefor through an allocation in the applicable Anticipated Cost Report. The
Persons required to provide such lien releases are:
(i) the Primary Contractors and each of their first tier
trade subcontractors and materialmen under the Primary Construction Contracts,
in each case performing work with a contract price (or expected aggregate
amount to be paid in the case of "cost-plus" contracts) in excess of $25,000;
and
(ii) (A) each Contractor party to a "fixed price" contract
and (B) each other Contractor and each of its first tier trade subcontractors
and materialmen, in each case performing work with a contract price (or
expected aggregate amount to be paid in the case of "cost-plus" contracts) in
excess of $100,000 (or with respect to suppliers and vendors who are located
outside the United States and do not provide labor at the Site, $200,000).
(b) Conditional Releases. Duly executed acknowledgments of
payments and releases of mechanics' and materialmen's liens substantially in
the form of Exhibit H-2 from the Contractors and Subcontractors listed in
clauses (i) and (ii) below for all work, services and materials, including
equipment and fixtures of all kinds, done, performed or furnished for the
construction of the Projects from the last day covered by the immediately
preceding Advance Request through the last day covered by the current Advance
Request except for such work, services and materials the payment for which does
not exceed, in the aggregate $10,000,000 and is being disputed in good faith,
so long as (1) such proceedings shall not involve any substantial danger of the
sale, forfeiture of loss of the Projects or any Mortgaged Property, as the case
may be, title thereto or any interest therein and shall not interfere in any
material respect with the Projects or any Mortgaged Property and (2) adequate
cash reserves have been provided therefor through an allocation in the
applicable Anticipated Cost Report. The Persons required to provide such lien
releases are:
(i) the Primary Contractors and each of its first tier
trade subcontractors and materialmen under the Primary Construction Contracts,
in each case performing work with a contract price (or expected aggregate
amount to be paid in the case of "cost-plus" contracts) in excess of $25,000;
(ii) (A) each Contractor party to a "fixed price" contract
and (B) each other Contractor and each of its first tier trade subcontractors
and materialmen, in each case performing work with a contract price (or
expected aggregate amount to be paid in the case of "cost-plus" contracts) in
excess of $100,000 (or, with respect to suppliers and vendors who are located
outside the United States and do not provide labor at the Site, $200,000).
Notwithstanding the foregoing, if the Company or any Contractor
does not obtain any of the foregoing waivers and releases of liens required
under clauses (a) or (b) above (collectively, "Outstanding Releases"), then
instead of delivering such Outstanding Releases and as a condition to any
progress or other payment from the proceeds of the requested Advance, the
Company may obtain and provide to the Disbursement Agent from the Title Insurer
bonds or endorsements to the title insurance policies insuring the lien free
status of the work and the Mortgaged Property; provided, however, that at no
time shall the aggregate of all Outstanding Releases represent work with an
aggregate value in excess of $2,000,000.
3.2.8 Title Policy Endorsement. The Disbursement Agent shall have
received a commitment from the Title Insurer, attached to the Advance Request,
evidencing the Title Insurer's unconditional commitment to issue an endorsement
to the Title Policies (such endorsement to be dated as of the applicable
Advance Date) in the form of a 122 CLTA Endorsement insuring the continuing
priority of the Lien of each Deed of Trust as security for the requested
Advance and confirming and/or insuring that (i) since the previous disbursement
from the Disbursement Account, there has been no change in the condition of
title unless permitted by the Financing Agreements and (ii) there are no
intervening liens or encumbrances which may then or thereafter take priority
over the respective Liens of the Deeds of Trust other than Permitted
Encumbrances and such intervening liens or encumbrances securing amounts the
payment of which is being disputed in good faith by the Company, so long as the
Disbursement Agent has received confirmation from the applicable Funding Agents
that the Title Insurer has delivered to such Funding Agents any endorsement to
the respective Title Policies required or desirable to assure against loss to
the Secured Parties due to the priority of such lien or encumbrance.
3.2.9 Permits. The Company shall have certified that:
(a) other than exceptions to any of the following that could
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect: (i) each of the Loan Parties and each Contractor has
obtained and holds all Permits described in Exhibit J-1 or Exhibit J-2 required
to be obtained by such Loan Party or Contractor as of the date this
certification is deemed made, (ii) all such Permits are in full force and
effect and each of the Loan Parties and, to the Company's knowledge, each
Contractor, has performed and observed all requirements of such Permits to the
extent required to be performed as of the date this certification is deemed
made, (iii) no event has occurred which allows or results in, or after notice
or lapse of time would allow or result in, revocation, modification, suspension
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 could reasonably be
expected to materially and adversely affect any of the Loan Parties, or the
operation of the business of any such Loan Party or any property owned, leased
or otherwise operated by such Person, (v) the Company has no knowledge that any
Governmental Authority is considering limiting, modifying, suspending, revoking
or renewing any such Permit on terms that could reasonably be expected to
materially and adversely affect any of the Loan Parties or the operation of the
business of any such Loan Party or any property owned, leased or otherwise
operated by such Person and (vi) each of the Loan Parties reasonably believes
that each such Permit will be timely renewed and complied with, without undue
expense or delay;
(b) with respect to any of the Permits described in Exhibit
J-1 or Exhibit J-2 as not yet required to be obtained by any Loan Party or any
Contractor (other than the Gaming/Liquor Licenses and any massage or
second-hand dealer licenses to be issued by Clark County), (i) each such Permit
is of a type that is routinely granted on application and compliance with the
conditions for issuance and (ii) no facts or circumstances exist which indicate
that any such Permit will not be timely obtainable without undue expense or
delay by the Company or the applicable Person, respectively, prior to the time
that it becomes required; and
(c) solely until the Phase I Opening Date, the Buy-Sell
Agreement is in full force and effect.
3.2.10 Additional Documents. With respect to any Material
Construction Agreements entered into or obtained, transferred or required
(whether because of the status of the construction or operation of the Projects
or otherwise) since the date of the most recent Advance, the Bank Agent shall
have confirmed that the Company has complied with the requirements of Section
6.5.
3.2.11 Plans and Specifications. The Disbursement Agent and the
Construction Consultant shall have received copies of all Plans and
Specifications which, as of the date of the requested Advance Date, constitute
Final Plans and Specifications to the extent not theretofore delivered.
3.2.12 As-Built Survey. At the time of the first Advance Request
occurring after completion of the foundation work for each Project, the Company
shall cause an updated as-built survey to be delivered to the Construction
Consultant and the Disbursement Agent satisfactory in form and substance to the
Title Insurer and the Disbursement Agent.
3.2.13 Litigation. No action, suit, proceeding or investigation of
any kind shall have been instituted or, to the Company's knowledge, pending or
threatened, including actions or proceedings of or before any Governmental
Authority, to which any Loan Party, the Projects or, to the knowledge of the
Company, any Major Project Participant (other than any Loan Party), is a party
or is subject, or by which any of them or any of their properties or the
Projects are bound that could reasonably be expected to have a Material Adverse
Effect nor is the Company aware of any reasonable basis for any such action,
suit, proceeding or investigation and no injunction or other restraining order
shall have been issued and no hearing to cause an injunction or other
restraining order to be issued shall be pending or noticed with respect to any
action, suit or proceeding if the same could reasonably be expected to have a
Material Adverse Effect.
3.2.14 In Balance Requirement. The Projects shall be In Balance.
3.2.15 No Restriction. No order, judgment or decree of any court,
arbitrator or governmental authority shall purport to enjoin or restrain any of
the Bank Lenders or the 2014 Notes Indenture Trustee from making the Advances
to be made by it on the requested Advance Date.
3.2.16 Violation of Certain Regulations. The making of the
requested Advance shall not violate any law including Regulation T, Regulation
U or Regulation X of the Board of Governors of the Federal Reserve System.
3.2.17 Material Adverse Effect. Since the Closing Date, there
shall not have occurred any change in the Project Budgets (excluding any
amendment thereto permitted under Section 6.3), in the economics or feasibility
of constructing and/or operating the Projects, or in the financial condition,
business or property of the Loan Parties, any of which could reasonably be
expected to have a Material Adverse Effect.
3.2.18 Subcontracts. The Company shall have delivered a copy of
(i) each Contract entered into between the Company and any Contractor with a
contract price (or expected aggregate amount to be paid in the case of "cost
plus" contracts) in excess of $500,000, (ii) each first tier Subcontract
entered into by any Primary Contractors with a contract price (or expected
aggregate amount to be paid in the case of "cost plus" contracts) in excess of
$500,000, (iii) each first tier Subcontract with a contract price (or expected
aggregate amount to be paid in the case of "cost plus" contracts) in excess of
$500,000 entered into by any other Contractor who is party to a Contract
entered into with the Company that is not subject to a fixed price and (iv) a
copy of any Payment and Performance Bond required pursuant to Section 5.9
hereof to the Disbursement Agent, the Construction Consultant and Bank Agent
promptly after mutual execution and delivery thereof.
3.2.19 Unincorporated Materials. Delivery to the Disbursement
Agent and the Construction Consultant of a written inventory in the form of
Appendix IX to the Company's Advance Request identifying all materials,
machinery, fixtures, furniture, equipment or other items purchased or
manufactured for incorporation into the Project but which, at the time of the
Advance Request, (i) are not located at the Site and for which the Company has
paid or intends to pay with the proceeds of the Advance Request all or a
portion of the purchase price or (ii) are located at the Site but are not
expected to be incorporated into the Projects within thirty (30) days after
such Advance Request (such materials, the "Unincorporated Materials") and
including the value thereof, together with evidence reasonably satisfactory to
the Construction Consultant and the Disbursement Agent that the following
conditions have been satisfied with respect to such Unincorporated Materials:
(a) all Unincorporated Materials for which full payment has
previously been made or is being made with the proceeds of the Advance to be
disbursed are, or will be upon full payment, owned by the Company, as evidenced
by the bills of sale, certificates of title or other evidence reasonably
satisfactory to the Construction Consultant, and all lien rights or claims of
the supplier has been or will be released simultaneously with such full payment
and all amounts, if any, required to be paid to the supplier thereof with
respect to the installation of such Unincorporated Materials (including any
Retainage Amounts);
(b) the Company believes that the Unincorporated Materials
consist of fabricated or unfabricated components that conform to the Final
Plans and Specifications and that will be ready for incorporation into the
Projects upon delivery thereof or within a reasonable period of time
thereafter;
(c) all Unincorporated Materials are properly inventoried,
securely stored, protected against theft and damage at the Site or at such
other location which has been specifically identified by its complete address
to the Construction Consultant and the Disbursement Agent (or if the Company
cannot provide the complete address of the current storage location, the
Company shall list the name and complete address of the applicable contracting
party supplying or manufacturing such Unincorporated Materials);
(d) With respect to any Unincorporated Materials as to which
deposit or other partial payments have been made or will be made out of the
requested Advance (but which have not been and will not be fully paid after
giving effect to the requested Advance), (i) the Secured Parties have, or will
have upon payment with the proceeds of the requested Advance, a perfected
security interest in the Unincorporated Materials and/or Contract therefor,
with the priority therein contemplated by the Security Documents (and with
respect to Unincorporated Materials not stored at the Site from a single or
Affiliated suppliers (of which the Company is aware that such suppliers is an
Affiliate) with a contract price (or expected aggregate amount to be paid in
the case of "cost-plus" contracts) in excess of $5,000,000 (excluding items
located outside of the United States or in transit from jurisdictions outside
of the United States) or any Contracts with a contract price (or expected
aggregate amount to be paid in the case of "cost plus" contracts) in excess of
$5,000,000, the Company shall have executed and delivered to the Disbursement
Agent such additional security documents (including, without limitation,
financing statements, security agreements, collateral access agreements,
consents of manufacturers, vendors, warehousemen and bailees) required by the
laws of any jurisdiction necessary to grant the Secured Parties such security
interest in such Unincorporated Materials or Contracts);
(e) are insured against casualty, loss and theft for an
amount equal to their replacement costs in accordance with Section 5.13;
(f) the value of Unincorporated Materials located at the
Site but not expected to be incorporated into the Projects within the ensuing
calendar month at any time is not more than $10,000,000;
(g) the amounts paid by the Company in respect of
Unincorporated Materials not at the Site at any one time is not more than
$45,000,000;
(h) the amount of contract deposits paid by the Company in
respect of Unincorporated Materials at any one time is not more than
$30,000,000;
(i) the Construction Consultant shall have confirmed the
accuracy of the certification required in clause (c) above, and in connection
therewith the Construction Consultant may, but shall not be required to, visit
the site of and inspect the Unincorporated Materials at the Company's expense;
and
(j) the Disbursement Agent and the Construction Consultant,
at the request of the Company, may from time to time mutually agree to increase
the thresholds set forth in Sections 3.2.19(f), (g) and (h) above.
3.2.20 Cash Management Account. With respect to an Advance Request
which requests that funds be deposited in the Cash Management Account, the
Company shall have substantiated (a) to the Construction Consultant's
satisfaction (as set forth in the Construction Consultant's Advance
Certificate) in the manner contemplated by the Advance Request, that the
amounts previously drawn by the Company from the Cash Management Account to pay
Hard Costs have, in fact, been used to pay Hard Costs in accordance with the
applicable Project Budget and (b) to the Disbursement Agent's satisfaction in
the manner contemplated by the Advance Request, that the amounts previously
drawn by the Company from the Cash Management Account to pay Soft Costs have,
in fact, been used to pay Soft Costs in accordance with the applicable Project
Budget. After giving effect to the requested Advance, the balance in the Cash
Management Account will not exceed the maximum dollar thresholds permitted from
time to time under Section 2.2.4, in each case, unless approved by the
Disbursement Agent in accordance with Section 2.2.4.
3.2.21 Company's Payment Account. With respect to an Advance
Request which requests that funds be deposited in the Company's Payment
Account, the Company shall have substantiated to the Construction Consultant's
satisfaction (as set forth in the Construction Consultant's Advance
Certificate), in the manner contemplated by the Advance Request, that the
amounts previously withdrawn by the Company from each such Account have been
used to pay Project Costs in the amounts specified in the previous Advance
Requests.
3.2.22 Suspension of Performance. Construction of the Projects is
proceeding in accordance with the Project Schedules and the Final Plans and
Specifications and no Contractor party to any Material Construction Agreements
and no first tier Subcontractor under the Primary Construction Contracts party
to a Subcontract with a total contract amount or value in excess of $15,000,000
has suspended performance or otherwise repudiated its obligation to perform any
duty or obligation under its respective Material Construction Agreements or
Subcontract (unless such suspended or repudiated Material Construction
Agreements or Subcontract is permitted to be, and actually has been, replaced,
or a replacement is determined not to be necessary, pursuant to Section 7.1.5.
3.2.23 Advances with respect to Phase II Project. Prior to the
later of: (a) Phase I Opening Date and (b) the Phase II Approval Date, the
aggregate amount of Advances made relating to Project Costs allocable to the
Phase II Project shall not exceed One Hundred Million Dollars
($100,000,000.00).
3.2.24 Other Documents. The Disbursement Agent and the Bank Agent
shall have received such other documents and evidence as are customary for
transactions of this type as the Bank Agent or the Disbursement Agent may
reasonably request in connection with the Phase II Project.
3.3 CONDITIONS PRECEDENT TO ADVANCES FOR PHASE II PROJECT PRIOR TO
PHASE II APPROVAL DATE. Notwithstanding Section 3.2, after the Closing Date and
prior to the Phase II Approval Date the obligation of the Bank Lenders, the
2014 Notes Indenture Trustee and the Disbursement Agent to make Advances to pay
Project Costs with respect to the Phase II Project are subject only to
satisfaction of each of the conditions precedent set forth in Sections 3.2.2,
3.2.3, 3.2.4, 3.2.7, 3.2.8, 3.2.14, 3.2.15, 3.2.16, 3.2.17, 3.2.20 and 3.2.23
(with such changes to the form of Notice of Advance Request as are reasonably
acceptable to or reasonably required by the Disbursement Agent but including,
at a minimum, an allocation of such Advance among the Funding Sources and
representations by the Company that such Advance will be used to pay Project
Costs relating to the Phase II Project and that each of the foregoing
conditions precedent shall have been satisfied) in form and substances
reasonably satisfactory to the Disbursement Agent in its reasonable discretion.
3.4 CONDITIONS PRECEDENT TO PHASE II APPROVAL DATE. In order to
request that the Phase II Approval Date occur (which request shall be made at
the option of the Company), the Company shall deliver to the Construction
Consultant, the Disbursement Agent, the Bank Agent and each Arranger: (a) at
least seventy-five (75) days before the Phase II Revolving Commitment Sunset
Date, the Phase II Primary Construction Contract and (if applicable) the Phase
II Architect's Agreement and the Phase II Deliverables listed in Sections 3.4.2
and 3.4.3, the conceptual plans and specifications for the Phase II Project and
any other Phase II Deliverable then available (as used in this Section, the
"Initial Phase II Deliverables"), (b) at least thirty (30) days before the
Phase II Revolving Commitment Sunset Date, copies of all Phase II Deliverables
reasonably required by the Construction Consultant in order for the
Construction Consultant to prepare its updated report to be delivered under
Section 3.4.8, and (c) at least ten (10) Banking Days before the Phase II
Revolving Commitment Sunset Date, a Company's Phase II Approval Date
Certificate appropriately completed and duly executed by a Responsible Officer
of the Company, with all attachments thereto, including all Phase II
Deliverables. The Disbursement Agent and the Arrangers shall use reasonable
efforts to review the Initial Phase II Deliverables and respond to the Company
within thirty (30) days after their receipt thereof. The Company shall be
entitled to revise and re-submit the Initial Phase II Deliverables from time to
time prior to the delivery deadline set forth in clause (c) above. If the
Majority of the Arrangers, in consultation with the Construction Consultant,
reasonably determine each of the following conditions precedent to the Phase II
Approval Date shall have been satisfied (in form and substance reasonably
satisfactory to the Majority of the Arrangers) on or prior to the Phase II
Revolving Commitment Sunset Date, then the Bank Agent shall countersign the
Company's Phase II Approval Date Certificate and promptly forward the same to
the Disbursement Agent, the Arrangers, the 2014 Notes Indenture Trustee, the
Construction Consultant and the Company. The Phase II Approval Date shall be
deemed to occur on the date the Bank Agent countersigns the Company's Phase II
Approval Date Certificate.
3.4.1 Insurance.
(a) Policies. Insurance with respect to the Phase II Project
complying with the requirements of Exhibit L shall be in place and in full
force and effect.
(b) The Company Insurance Broker's Certificate. Delivery to
each of the Arrangers and the Disbursement Agent of (i) a certificate,
substantially in the form of Exhibit B-4 attached hereto addressing the
insurance coverage for the Phase II Project or otherwise in form and substance
reasonably satisfactory to the Majority of the Arrangers from the Company's
insurance broker(s), identifying underwriters, type of insurance, insurance
limits and policy terms, listing the special provisions required as set forth
in Exhibit L, describing the insurance obtained and stating that such insurance
is in full force and effect and that all premiums then due thereon have been
paid and (ii) certified copies of all policies evidencing such insurance (or a
binder, commitment or certificates signed by the insurer or a broker authorized
to bind the insurer along with a commitment to deliver certified copies of the
policies within forty-five (45) days after the Phase II Approval Date) meeting
the requirements of Exhibit L.
(c) Company's Insurance Certificate. The Company shall have
identified in the Company's Phase II Approval Date Certificate the type of
insurance, insurance limits and policy terms of any insurance then required to
be obtained by any Contractor under the Material Project Documents with respect
to the Phase II Project then in effect and shall have certified, to the best of
the Company's knowledge, that all insurance required to be obtained by each
Contractor under such Material Project Documents or Exhibit L is in full force
and effect if the same is required to be in effect and that if then required to
be in effect, all premiums then due thereon have been paid, and that such
insurance complies with the requirement of such Material Project Documents and
Exhibit L. The Company shall have delivered to each of the Arrangers and the
Disbursement Agent (i) for each Contractor party to a Material Project Document
with respect to the Phase II Project, certified copies of all policies
evidencing such insurance (or a binder, commitment or certificates signed by
the insurer or a broker authorized to bind the insurer) which insurance shall,
to the extent reasonably available, name the Disbursement Agent, the Collateral
Agent, the Funding Agents and the Lenders as additional insureds.
(d) Insurance Advisor's Certificate. Delivery to the
Arrangers and the Disbursement Agent of the Insurance Advisor's Certificate
addressing the insurance coverage for the Phase II Project, substantially in
the form of Exhibit B-3.
3.4.2 Phase II Project Budget. Delivery to each of the
Disbursement Agent, the Arrangers and the Construction Consultant of a budget,
with Line Item Categories substantially similar to the Phase I Project Budget
(as amended from time to time in accordance with the terms hereof, the "Phase
II Project Budget") for all anticipated Project Costs of the Phase II Project
(including, without limitation, Project Costs incurred prior to, as well as
after, the Phase II Approval Date including closing costs and Debt Service
expected to be incurred from and after the Phase I Opening Date and accruing
with respect to Advances made under the Bank Credit Agreement or from the 2014
Notes Proceeds Account to pay Project Costs allocated to the Phase II Project),
which includes a drawdown schedule for Advances necessary to achieve Final
Completion of the Phase II Project and such other information and supporting
data as any of the Arrangers, the Disbursement Agent or the Construction
Consultant may reasonably require, together with a balanced statement of
sources and uses of proceeds (and any other funds necessary to complete the
Phase II Project), broken down by Facility and Line Item Category, which Phase
II Project Budget, drawdown schedule and statement of sources and uses shall be
reasonably satisfactory to the Construction Consultant, as and to the extent
certified to in the Construction Consultant's Report delivered under Section
3.4.8, and to the Majority of the Arrangers (it being acknowledged that the
level of detail of the Phase II Project Budget shall be commensurate with the
state of completion of the Plans and Specifications relating to the Phase II
Project). The Phase II Project Budget shall include a total contingency of at
least $40,000,000 (including the amounts required to be on deposit in the
Completion Guaranty Deposit Account under Section 5.1.3). On the Phase II
Approval Date, the budget delivered under this Section shall be deemed to be
Exhibit F-4.
3.4.3 Phase II Project Schedule and Schedule of Key Dates.
Delivery to the Disbursement Agent, the Arrangers and the Construction
Consultant of a schedule for construction and completion of the Phase II
Project in a format substantially similar to the Phase I Project Schedule (as
amended from time to time in accordance with the terms hereof, the "Phase II
Project Schedule") which demonstrates that the Phase II Opening Date will occur
before the Phase II Scheduled Opening Date and the Phase II Completion Date
will occur on or before the Phase II Scheduled Completion Date and which is
otherwise reasonably satisfactory to the Construction Consultant, as certified
to in the Construction Consultant's report delivered under Section 3.4.8, and
to the Majority of the Arrangers. On the Phase II Approval Date, the schedule
delivered under this Section shall be deemed to be Exhibit G-2.
3.4.4 Third Party Consents. Delivery to the Disbursement Agent and
the Arrangers of Consents from each of the Phase II Major Contractors and the
Phase II Major Architects with respect to the Phase II Project, each
substantially in the form of Exhibit P or otherwise in form and substance
reasonably satisfactory to the Majority of Arrangers.
3.4.5 Utility Availability. The Construction Consultant shall have
become reasonably satisfied, as certified in the updated report delivered
pursuant to Section 3.4.8, that arrangements, which are reflected accurately in
the Phase II Project Budget, shall have been or will be made under the Material
Project Documents or otherwise on commercially reasonable terms for the
provision of all utilities necessary for the construction, operation and
maintenance of the Phase II Project as contemplated by the Operative Documents
and the Final Plans and Specifications.
3.4.6 Phase II Plans and Specifications. The Company shall have
delivered to the Construction Consultant Plans and Specifications for the Phase
II Project consistent with the minimum standards for the Phase II Project set
forth on Exhibit V-2 and otherwise in form and substance reasonably
satisfactory to the Construction Consultant, as certified to in the
Construction Consultant's report delivered pursuant to Section 3.4.8, and to
the Majority of the Arrangers. Subject to approval of the finalized Plans and
Specifications for the Phase II Project by the proper Governmental Authorities,
such Plans and Specifications for the Phase II Project shall constitute Final
Plans and Specifications.
3.4.7 Contracts for Phase II Project. (i) The Company shall have
executed the Phase II Primary Construction Contract and other guaranteed
maximum price Contracts in respect of fifty percent (50%) of the total costs
reflected in the Phase II Project Budget, (ii) if the Phase II Primary
Construction Contract is not a "design/build" agreement, the Company shall have
executed the Phase II Architect's Agreement for the Phase II Project and (iii)
copies of all such Contracts shall have been delivered to the Construction
Consultant. Each such Contract shall provide that the effectiveness of such
Contract shall be contingent upon the occurrence of the Phase II Approval Date
hereunder. The Company shall have certified in the Company's Phase II Approval
Date Certificate that such Contracts are consistent with the Phase II Project
Budget, the Phase II Project Schedule and the Final Plans and Specifications
for the Phase II Project.
3.4.8 Updated Consultant Certificates and Reports. Each of the
Arrangers and the Disbursement Agent shall have received an updated
Construction Consultant's Report in form and substance reasonably satisfactory
to the Majority of the Arrangers which will address (i) construction progress
and Project Costs spent during the period from the Closing Date through the
Phase II Approval Date, (ii) the Final Plans and Specifications that have been
completed through such period to the extent not theretofore delivered and (iii)
the other Phase II Deliverables relating to construction of the Phase II
Project.
3.4.9 Completion Guaranty Deposit Account. If the Phase I
Substantial Completion Date has previously occurred, then the Completion
Guaranty Deposit Account shall on the Phase II Approval Date have a balance in
an amount equal to at least Thirty Million Dollars ($30,000,000).
3.4.10 Project Costs Incurred To Date. The Company shall have
substantiated (a) to the Construction Consultant's reasonable satisfaction (as
certified to in the Construction Consultant's report delivered pursuant to
Section 3.4.8) that the amounts previously drawn by the Company under Section
3.3 to pay Hard Costs relating to the Phase II Project have, in fact, been used
to pay Hard Costs allocated to the Phase II Project in accordance with the
Phase II Project Budget and (b) to the Disbursement Agent's reasonable
satisfaction that the amounts previously drawn by the Company under Section 3.3
to pay Soft Costs relating to the Phase II Project have, in fact, been used to
pay Soft Costs allocated to the Phase II Project in accordance with the Phase
II Project Budget.
3.4.11 Permits. The Company shall have delivered to the
Disbursement Agent, the Arrangers and the Construction Consultant a schedule of
material Permits that are required or will become required under existing Legal
Requirements by any Loan Party or any Contractor for the ownership,
development, construction, financing or operation of the Phase II Project in
form and substance reasonably satisfactory to the Construction Consultant, as
certified to in the Construction Consultant's Report delivered pursuant to
Section 3.4.8. On the Phase II Approval Date, the schedule delivered under this
Section shall be deemed to be Exhibit J-2 without any further consent of any
party hereto.
3.4.12 Projections. The Company shall have delivered to the
Disbursement Agent and the Arrangers updated Projections for the seven year
period following the Closing Date consistent with the Projections delivered
under Section 3.1.8 or otherwise in form and substance satisfactory to the
Majority of the Arrangers.
3.4.13 Real Estate Appraisals. If applicable law or banking
regulations require a FIRREA appraisal in connection with the approval of the
Phase II Project (in addition to the appraisal provided by the Company on the
Closing Date under Section 3.1.30), then the Bank Agent shall have received
such an appraisal from an independent real estate appraiser in form and
substance satisfactory to the Bank Agent.
3.5 NO WAIVER OR ESTOPPEL.
3.5.1 The occurrence of the Closing Date and making of any Advance
hereunder shall not preclude any Funding Agent from later asserting that (and
enforcing any remedies it may have if) any representation, warranty or
certification made or deemed made by the Company in connection with such
Advance was not true and accurate in all material respects when made. No course
of dealing or waiver by any Funding Agent or Secured Party in connection with
any condition precedent to any Advance under this Agreement or any Facility
Agreement shall impair any right, power or remedy of any such Funding Agent or
Secured Party with respect to any other condition precedent, or be construed to
be a waiver thereof; nor shall the action of any Funding Agent or Secured Party
in respect of any Advance affect or impair any right, power or remedy of any
Funding Agent or Secured Party in respect of any other Advance.
3.5.2 Unless the Company is otherwise notified by a Funding Agent
or Secured Party and without prejudice to the generality of Section 3.5.1, the
right of any Funding Agent or Secured Party to require compliance with any
condition under this Agreement or its respective Facility Agreement which may
be waived by such Funding Agent or Secured Party in respect of any Advance is
expressly preserved for the purpose of any subsequent Advance.
3.6 WAIVER OF CONDITIONS. The Bank Agent (acting under the Bank
Credit Agreement) shall be entitled to waive the conditions precedent under
Sections 3.2 and 3.3 with respect to Advances under the Bank Credit Facility
and from the Company's Funds Account or the 2014 Notes Proceeds Account without
the 2014 Notes Indenture Trustee's consent or the consent of any other Person;
provided, however that the Bank Agent shall not be entitled to waive the
funding allocation between the 2014 Notes Proceeds Account and the Bank Credit
Facility set forth in Section 2.4.1 (clause second). Until such time as the
2014 Notes Proceeds Account is exhausted, the 2014 Notes Indenture Trustee
(acting under the 2014 Notes Indenture) shall be entitled to waive the
conditions precedent under Sections 3.2 or 3.3 with respect to Advances from
the 2014 Notes Proceeds Account without the Bank Agent's or the Bank Lenders'
consent.
3.7 SPECIAL PROCEDURES REGARDING REIMBURSEMENTS TO COMPANY AND ITS
AFFILIATES.
3.7.1 Previously Paid Project Costs. If, at any time and from time
to time, the Company shall be unable to satisfy the conditions precedent to the
initial Advance or any subsequent Advance set forth in Sections 3.2 or 3.3 for
any reason other than as a result of the Projects not being In Balance, the
Company shall be entitled to allow Affiliates of the Company (other than any
Loan Party) to pay Project Costs then due and owing with respect to a
particular Project (which payment shall be deemed to be an additional equity
contribution by such Affiliate to the Company) and to later reimburse such
Affiliates for the payments of such Project Costs (which reimbursement may take
the form of a distribution to such Affiliate) from the Funding Sources at the
time (if any) that the Company is able to satisfy the conditions precedent to
Advances set forth in Sections 3.2 or 3.3, as applicable.
3.7.2 Loss Proceeds. If, at any time:
(a) an Event of Loss occurs that causes the Projects to no
longer be In Balance, and
(b) as a result thereof, and in order to cause the Projects
to be In Balance pending receipt of any Loss Proceeds in connection with such
Event of Loss and the deposit of such Loss Proceeds into the Company's Funds
Account, any Affiliate of the Company (other than any Loan Party) deposits or
causes to be deposited additional equity contributions into the Company's Funds
Account,
then, upon deposit of Loss Proceeds in respect of such Event of Loss into the
Company's Funds Account and so long as no Potential Event of Default or Event
of Default has occurred and is continuing or would occur after giving effect
thereto, the Company shall be entitled to submit a request for an Advance (in
form and substance, and with such attachments, certificates and exhibits, as
reasonably requested by the Disbursement Agent) requesting an Advance to be
used to make a reimbursement to such Affiliate (which reimbursement may take
the form of a distribution to such Affiliate) in an amount equal to the lesser
of (i) the amount of the Loss Proceeds received and deposited into the
Company's Funds Account and (ii) the amount of such additional cash equity
contribution deposited into the Company's Funds Account. Such Advance shall be
made for such purpose so long as the Company satisfies the conditions precedent
set forth in Section 3.2 or 3.3, as applicable.
3.8 CLOSING DATE TRANSACTIONS. For purposes of this Agreement, so long
as the Closing Transactions occur prior to, concurrently with, or immediately
after the Closing, the implementation of such Closing Transactions shall be
deemed to have occurred immediately prior to the Closing and shall not
constitute a breach or violation of any representation or covenant set forth in
this Agreement.
ARTICLE 4.
- REPRESENTATIONS AND WARRANTIES
--------------------------------
The Company makes all of the following representations and warranties
to and in favor of each Funding Agent (so long as such Funding Agent is a party
hereto), the Lenders and the Disbursement Agent as of the Closing Date and the
date of each Advance, except as such representations relate to an earlier date
(in which case such representations and warranties shall be true and correct in
all material respects as of such earlier date). All of these representations
and warranties shall survive the Closing Date and the Advances until, with
respect to each Funding Agent and the Lenders, the Obligations under such
Funding Agent's and Lenders' respective Facilities have been repaid in full in
immediately available funds and their respective Facility Agreements and the
other respective Financing Agreements and the commitments thereunder have
terminated. The following representations and warranties are made (i) as to the
Phase I Project prior to the Phase I Final Completion Date only and (ii) as to
the Phase II Project, after the Phase II Approval Date.
4.1 PERMITS. There are no material Permits that are required or will
become required under existing Legal Requirements by any Loan Party or any
Contractor for the ownership, development, construction, financing or operation
of the Projects, other than: (a) with respect to the Phase I Project, the
Permits described in Exhibit J-1 and (b) with respect to the Phase II Project,
from and after the Phase II Approval Date, Exhibit J-2. Exhibit J-1 and, from
and after the Phase II Approval Date, the Permits described in Exhibit J-2
accurately state the stage in construction by which each such Permit is
required to be obtained. Each material Permit described in Exhibit J-1 and,
from and after the Phase II Approval Date, Exhibit J-2, as required to be
obtained by the date that this representation is deemed to be made is in full
force and effect and is not at such time subject to any appeals or further
proceedings or to any unsatisfied condition (that is required to be satisfied
by the date that this representation is deemed to be made) that could
reasonably be expected to materially and adversely modify any material Permit,
to revoke any material Permit, to restrain or prevent the construction or
operation of the Projects or otherwise impose adverse conditions on the
Projects or the financing contemplated under the Financing Agreements. Each
material Permit described in Exhibit J-1 and, from and after the Phase II
Approval Date, Exhibit J-2, as not required to have been obtained by the date
that this representation is deemed to be made (other than Gaming/Liquor
Licenses and any massage or second-hand dealer licenses to be issued by Clark
County) is of a type that is routinely granted on application and compliance
with the conditions for issuance. The Company has no reason to believe that any
material Permit so indicated will not be obtained before it becomes necessary
for the ownership, development, construction, financing or operation of the
Projects or that obtaining such Permit will result in undue expense or delay.
Neither the Company nor any of its Affiliates are in violation of any condition
in any Permit the effect of which could reasonably be expected to have a
Material Adverse Effect. Exhibit J-1 and Exhibit J-2 may be updated from time
to time by the Company in response to changes in Legal Requirements and such
updates shall be effective upon the delivery of such updated exhibits to the
Disbursement Agent and the Construction Consultant.
4.2 IN BALANCE REQUIREMENT. As of each Advance Date the Projects are
In Balance.
4.3 SUFFICIENCY OF INTERESTS AND PROJECT DOCUMENTS.
4.3.1 The Company owns the Site and the Site Easements (other than
the Mortgaged Property encumbered or to be encumbered by Wynn Golf and Wynn
Sunrise) in fee simple. The Company has a valid leasehold estate or easement
interest, as the case may be, in the portions of the Site described in the
Affiliate Real Estate Agreements. Except as permitted by the Bank Credit
Agreement and the 2014 Notes Indenture, Wynn Golf owns the Golf Course Land
(including the Home Site Land and the Wynn Home Site) and the Golf Course Land
Easements in fee simple and Wynn Sunrise owns the Wynn Sunrise Land and Wynn
Sunrise Easements in fee simple.
4.3.2 Each of the Funding Agents has received a true, complete and
correct copy of each of the Material Project Documents in effect or required to
be in effect as of the date this representation is made or deemed made
(including all exhibits, schedules, material side letters and material
disclosure letters referred to therein or delivered pursuant thereto, if any).
A list of (a) all Project Documents that are Contracts and (b) all other
Material Project Documents, in each case, that have been entered into as of the
Closing Date and are necessary to the construction or operation of the Phase I
Project (excluding Contracts entered into in the ordinary course of business
for services or materials that are easily obtained from replacement contractors
or vendors on similar terms and any Project Document with a total contract
amount or value of less than $15,000,000) is attached hereto as Exhibit Q-5.
Each representation and warranty of (a) each Loan Party set forth in Article 4
hereof or in any of the other Financing Agreements shall be true and correct in
all material respects as if made on the Closing Date (except that any
representation and warranty that relates expressly to an earlier date shall be
deemed made only as of such earlier date), (b) each Loan Party set forth in
each Material Project Document was true and correct in all material respects on
the date made in the applicable documents and (c) to the Company's knowledge,
each Major Project Participant (other than any Loan Party) set forth in any of
the Material Project Documents was true and correct in all material respects on
the date made in the applicable document, unless the failure of any such
representation and warranty referred to in clauses (b) or (c) to be true and
correct could not reasonably be expected to have a Material Adverse Effect.
4.3.3 All conditions precedent to the obligations of the
respective parties (other than the Company) under the Material Project
Documents have been satisfied, except for immaterial conditions waived by the
Loan Parties and except for such conditions precedent which by their terms
cannot be met until a later stage in the construction or operation of the
Projects, and the Company has no reason to believe that any such condition
precedent the failure to satisfy which could reasonably be expected to have a
Material Adverse Effect cannot be satisfied on or prior to the appropriate
stage in the development, construction or operation of the Projects.
4.4 PROJECT BUDGET; SUMMARY ANTICIPATED COST REPORT.
4.4.1 The Phase I Project Budget (a) is, to the Company's
knowledge as of the Closing Date, based on assumptions believed by the Company
to be reasonable at the time made as to all legal and factual matters material
to the estimates set forth therein, (b) as of the Closing Date is consistent
with the provisions of the Operative Documents in all material respects, (c)
has been prepared in good faith and with due care, (d) as of the Closing Date
sets forth, for each Line Item Category, the total costs reasonably anticipated
to be incurred to achieve the Phase I Opening Date on or before the Phase I
Scheduled Opening Date, Phase I Substantial Completion on or before the Phase I
Scheduled Substantial Completion Date, Completion of the entire Phase I Project
(including the Entertainment Facility and the Fairway Villas) on or before the
Phase I Scheduled Completion Date and Final Completion of the Phase I Project
thereafter, (e) fairly represents the Company's expectation as to the matters
covered thereby as of its date and (f) as of the Closing Date sets forth a
total amount of Project Costs allocated to the Phase I Project, including
contingencies, which is less than or equal to the Available Funds. On and after
the Phase II Approval Date, the Phase II Project Budget (a) is, to the
Company's knowledge as of the Phase II Approval Date, based on assumptions
believed by the Company to be reasonable at the time made as to all legal and
factual matters material to the estimates set forth therein, (b) as of the
Phase II Approval Date is consistent with the provisions of the Operative
Documents in all material respects, (c) has been and will be prepared in good
faith and with due care, (d) as of the Phase II Approval Date sets forth, for
each Line Item Category allocated to the Phase II Project, the total costs
anticipated to be incurred to achieve the Phase II Opening Date on or before
the Phase II Scheduled Opening Date, Completion of the Phase II Project on or
before the Phase II Scheduled Completion Date and Final Completion of the Phase
II Project thereafter, (e) fairly represents the Company's expectation as to
the matters covered thereby as of its date and (f) as of the Phase II Approval
Date sets forth a total amount of Project Costs for the Phase II Project,
including contingencies, which is less than or equal to the Available Funds for
the Phase II Project.
4.4.2 The Construction Consultant has approved (such approval not
to be unreasonably withheld) any discrepancies between (a) the aggregate
anticipated costs to complete the work under a Primary Construction Contract
set forth in the anticipated cost report to be provided (from time to time) by
the applicable Primary Contractor to the Company and (b) the amount set forth
in column I ("Anticipated Cost") of the "GMP Contract" Line Item Category with
respect to the applicable Project in the Summary Anticipated Cost Report for
such Project.
4.4.3 The Summary Anticipated Cost Reports (as in effect from time
to time) sets forth in column I ("Anticipated Cost") thereof:
(a) until the Phase I Opening Date, for the "Capitalized
Interest and Commitment Fees" Line Item Category in respect of the Phase I
Project Budget, the total amount of interest and commitment fees anticipated to
be accrued on the Facilities through the anticipated Phase I Opening Date;
(b) until the Phase II Opening Date, for the "Capitalized
Interest and Commitment Fees" Line Item Category in respect of the Phase II
Project Budget, the total amount of interest and commitment fees anticipated to
be accrued on the Facilities and allocated to the Phase II Project through the
anticipated Phase II Opening Date;
(c) for each Line Item Category allocated to the Phase I
Project and, from and after the Phase II Approval Date, the Phase II Project,
an aggregate amount equal to the aggregate amount set forth for such Line Item
Category in the applicable Project Budget then in effect;
(d) for each Line Item Category allocated to the Phase I
Project (other than the "Phase I Construction Contingency" Line Item Category)
and from and after the "Phase II Approval Date, the Phase II Project (other
than the "Phase II Construction Contingency" Line Item Category), an amount no
less than the total anticipated costs to be incurred by the Company from the
commencement through the completion of the work contemplated by such Line Item
Category, as determined by the Company and (i) with respect to Hard Costs,
approved by the Disbursement Agent and the Construction Consultant (to the
extent set forth in the Construction Consultant's Advance Certificate dated the
date on which this representation is made or deemed made), and (ii) with
respect to Soft Costs, approved by the Disbursement Agent; and
(e) (i) with respect to costs previously incurred, is true
and correct in all material respects and (ii) with respect to costs anticipated
to be incurred, is based upon good faith estimates and assumptions believed by
Responsible Officers of the Company to be reasonable at the time made.
4.4.4 The Anticipated Cost Reports (as in effect from time
to time):
(a) sets forth in column I ("Anticipated Cost") thereof, for
each Line Item other than any Line Items under the "Phase I Construction
Contingency" Line Item Category and, from and after the Phase II Approval Date,
any Line Items under the "Phase II Construction Contingency," an amount no less
than the total anticipated costs to be incurred by the Company from the
commencement through the completion of the work contemplated by such Line Item,
as determined by the Company and (i) with respect to Hard Costs, approved by
the Construction Consultant in the Construction Consultant's Advance
Certificate dated the date on which this representation is made or deemed made
and (ii) with respect to Soft Costs, approved by the Disbursement Agent;
(b) (i) with respect to costs previously incurred, is true
and correct in all material respects and (ii) with respect to costs anticipated
to be incurred, is based upon good faith estimates and assumptions believed by
Responsible Officers of the Company to be reasonable at the time made; and
(c) accurately reflects, for each Line Item Category of the
applicable Project Budget, the detail underlying the corresponding Summary
Anticipated Cost Report with respect to each Line Item of such Line Item
Category described therein.
4.4.5 The total aggregate amount of Project Costs for the Phase II
Project set forth in column I ("Anticipated Cost") of the Phase II Anticipated
Cost Report (as in effect from time to time) does not exceed the limit set
forth in Section 7.23 of the Bank Credit Agreement.
4.4.6 Each Monthly Requisition Report (as in effect from time to
time):
(a) sets forth in column D ("Revised Project Budget")
thereof the amount allocated to each Line Item Category pursuant to the
applicable Project Budget then in effect;
(b) (i) with respect to costs previously incurred, is true
and correct in all material respects and (ii) with respect to costs anticipated
to be incurred, is based upon good faith estimates and assumptions believed by
Responsible Officers of the Company to be reasonable at the time made.
4.5 PROJECT SCHEDULE. To the Company's knowledge, the Project
Schedules accurately specify in summary form the work that the Company proposes
to complete in each calendar quarter from the Closing Date through the Final
Completion of each Project, all of which are reasonably expected to be
achieved.
4.6 PLANS AND SPECIFICATIONS. The Plans and Specifications (a)
are, to the Company's knowledge as of the Closing Date with respect to the
Phase I Project and, to the Company's knowledge, from and after the Phase II
Approval Date with respect to the Phase II Project, based on assumptions
believed by the Company to be reasonable at the time made as to all legal and
factual matters material thereto, (b) are, and except to the extent permitted
under Sections 6.1 and 6.2 will be from time to time, consistent with the
provisions of the Operative Documents in all material respects and (solely with
respect to the Phase I Project) with the "Premises and Assumptions" (as defined
in the Phase I Primary Construction Contract), (c) have been prepared in good
faith with due care and (d) fairly represent the Company's reasonable
expectation as to the matters covered thereby. The Final Plans and
Specifications as and when prepared (i) have been prepared in good faith with
due care and (ii) are accurate in all material respects and fairly represent
the Company's expectation as to the matters covered thereby.
ARTICLE 5.
- AFFIRMATIVE COVENANTS
-----------------------
The following covenants are made (i) as to the Phase I Project
prior to the Phase I Final Completion Date only and (ii) as to the Phase II
Project, after the Phase II Approval Date only; provided, however, that the
covenants set forth in Section 5.1.1, 5.1.2 and 5.14 shall apply as to the
Phase II Project prior to and after the Phase II Approval Date. Subject to the
preceding sentence, the Company covenants and agrees, with and for the benefit
of the Bank Agent, and, until the 2014 Notes Proceeds Account has been
Exhausted, the 2014 Notes Indenture Trustee, the Lenders and the Disbursement
Agent that it shall
5.1 USE OF PROCEEDS.
5.1.1 Proceeds. Deposit or cause to be deposited into the
Company's Funds Account the amounts required to be deposited therein by the
Company pursuant to Section 2.2.1.
5.1.2 Project Costs. Apply all proceeds described in Section 5.1.1
above and all other amounts received by the Company and/or deposited in the
Company Accounts only to pay Project Costs, reimburse Affiliates to the extent
permitted by this Agreement or pay the Obligations, in each case in accordance
with the terms of this Agreement.
5.1.3 Completion Guaranty Deposit Account. This Section 5.1.3
shall only apply from and after the Phase II Approval Date and shall not be
applicable should the Phase II Approval Date not occur on or before the Phase
II Revolving Commitment Sunset Date. On the Phase I Substantial Completion Date
(if the Phase II Approval Date shall have previously occurred) or on the Phase
II Approval Date (if such date occurs after the Phase I Substantial Completion
Date), the Company shall cause the amount on deposit in the Completion Guaranty
Deposit Account to equal at least Thirty Million Dollars ($30,000,000) for
utilization with respect to the Phase II Project pursuant to Section 5.5.3(c).
5.1.4 Excess Cash Flows. This Section 5.1.4 shall only apply from
and after the Phase II Approval Date and shall not be applicable should the
Phase II Approval Date not occur on or before the Phase II Revolving Commitment
Sunset Date.
(a) (i) Within three (3) Banking Days after the end of each
calendar quarter occurring from and after the Phase I Opening Date and prior to
the Phase II Final Completion Date, deposit or cause to be deposited into the
Company's Funds Account an amount at least equal to the lesser of: (x) the
amount shown under the column "Excess Cash Flow" for such calendar quarter in
the Phase I Projected Excess Cash Flow Schedule and (y) the amount required for
the Projects to be In Balance.
(b) In the event the actual "Excess Cash Flow" (as such term
is defined in the Bank Credit Agreement) generated by the Phase I Project in
any two consecutive full calendar quarters (the second such quarter being
referred to herein as the "Second Shortfall Quarter") from and after the Phase
I Opening Date and prior to the Phase II Final Completion Date is less than the
aggregate amount shown under the column "Excess Cash Flow" for such calendar
quarters, then the Company shall immediately notify the Bank Agent of such
shortfall and no later than thirty (30) days after the end of the second
shortfall quarter, submit to the Bank Agent a revised Phase I Excess Cash Flow
Schedule reflecting the Bank Agent's reasonable expectations (after
consultation with the Company and after taking into consideration, among other
things, the prior performance of the Phase I Project) for the generation of
Excess Cash Flow by the Phase I Project from such date through the Phase II
Final Completion Date. Such revised schedule shall thereafter be deemed to be
the "Phase I Projected Excess Cash Flow Schedule" for purposes of this
Agreement without any further consent of any party hereto.
5.2 DILIGENT CONSTRUCTION OF THE PROJECTS. Take or cause to be
taken all action, make or cause to be made all contracts and do or cause to be
done all things necessary to construct the Projects diligently in accordance
with the Primary Construction Contracts, the Final Plans and Specifications and
the other Operative Documents (except for delays caused by any Event of Force
Majeure).
5.3 REPORTS; COOPERATION. Deliver to the Funding Agents, the
Construction Consultant and the Disbursement Agent together with each month's
Advance Request (or if no Advance Request is submitted during any calendar
month, within twenty (20) days following the end of such calendar month):
(a) a monthly status report describing in reasonable detail
the progress of the construction of the Projects since the immediately
preceding report hereunder, including without limitation, the cost incurred to
the end of such month allocated between the Phase I Project and the Phase II
Project, an estimate of the time and cost required to complete each Project and
such other information which any Funding Agent or the Disbursement Agent may
reasonably request including information and reports reasonably requested by
the Construction Consultant;
(b) a monthly status report describing in reasonable detail
the progress of the leasing activities with respect to the Projects, if any,
and all leases, if any, that have been entered into since the immediately
preceding report hereunder;
(c) all progress reports provided by each Contractor
pursuant to the Material Construction Agreements and such additional
information as the Bank Agent or the Disbursement Agent may reasonably request;
and
(d) copies of any applicable bailee or Lien waivers
delivered pursuant to Section 5.13.1.3 of the Phase I Primary Construction
Contract or any similar provision of the Phase II Primary Construction
Contract.
5.4 NOTICES. Promptly, upon an officer of the Company acquiring notice
or giving notice, or upon an officer of the Company obtaining knowledge
thereof, as the case may be, provide to the Disbursement Agent, the
Construction Consultant and the Funding Agents written notice of:
5.4.1 Any Event of Default or Potential Event of Default of which
it has knowledge, specifically stating that an Event of Default or Potential
Event of Default has occurred and describing such Event of Default or Potential
Event of Default and any action being taken or proposed to be taken with
respect to such Event of Default or Potential Event of Default.
5.4.2 Any event, occurrence or circumstance which reasonably could
be expected to cause the Projects to not be In Balance or render the Company
incapable of, or prevent the Company from (a) achieving the Phase I Opening
Date on or before the Phase I Scheduled Opening Date, (b) achieving Phase I
Substantial Completion on or before the Phase I Scheduled Substantial
Completion Date, (c) achieving Completion of the entire Phase I Project
(including the Entertainment Facility and the Fairway Villas) on or before the
Phase I Scheduled Completion Date, (d) achieving the Phase II Opening Date on
or before the Phase II Scheduled Opening Date, (e) achieving the Completion of
the Phase II Project on or before the Phase II Scheduled Completion Date, or
(f) meeting any material obligation of the Company under the Primary
Construction Contracts or the other Material Project Documents as and when
required thereunder.
5.4.3 Any termination or event of default or notice thereof under
any Material Project Document or any notice under Nevada Revised Statutes
Section 624.610 issued by any Contractor.
5.4.4 Any change in the Responsible Officers of the Company, and
such notice shall include a certified specimen signature of any new officer so
appointed and, if requested by any Funding Agent or the Disbursement Agent,
satisfactory evidence of the authority of such new Responsible Officer.
5.4.5 Any proposed material change in the nature or scope of the
Projects or the business or operations of the Company.
5.4.6 Any notice of any schedule delay delivered under the Primary
Construction Contracts and all remedial plans and updates thereof.
5.4.7 Any other event or development which could reasonably be
expected to have a Material Adverse Effect.
5.4.8 "Substantial Completion" or "Final Completion" certificates
or notices thereof delivered under any Material Project Document.
5.5 CERTAIN TRANSFERS FROM COMPANY ACCOUNTS.
5.5.1 Event of Default; Bankruptcy. (a) Upon the request of the
Collateral Agent following the occurrence of an Event of Default, (b)
immediately upon the dissolution, liquidation or Bankruptcy of the Completion
Guarantor or (c) upon the request of the Collateral Agent following the
occurrence of a breach by the Completion Guarantor of any of its covenants and
agreements under the Completion Guaranty, cause the Completion Guarantor to
instruct the Disbursement Agent to transfer to the Company's Funds Account from
the Completion Guaranty Deposit Account an amount equal to the amount of funds
then on deposit in the Completion Guaranty Deposit Account. In the event that
the Completion Guarantor fails to so instruct, the Disbursement Agent shall be
entitled to transfer such funds from the Completion Guaranty Deposit Account to
the Company's Funds Account, which transfer shall be deemed to be a dividend by
the Completion Guarantor to the Company. In the event that after the transfer
of such funds, such Event of Default or breach by the Completion Guarantor is
cured or waived, and the Company obtains additional Advances hereunder, such
funds shall be returned to the Completion Guaranty Deposit Account (minus any
portion of such funds that has been expended prior to the date such Event of
Default or breach is cured or waived) and shall be treated as a capital
contribution by the Company in the Completion Guarantor.
5.5.2 Contingencies. At such times, if ever, as the Projects shall
not be In Balance, the Company shall deposit or cause to be deposited in the
Company's Funds Account in cash, funds (other than from the Completion Guaranty
Deposit Account or the Project Liquidity Reserve Account) in an amount that
would cause the Projects to be In Balance.
5.5.3 Completion Guaranty Deposit Account; Project Liquidity
Reserve Account.
(a) At such times, if ever, as no other source of funds is
available to the Company for the timely payment of Project Costs allocated to a
particular Project in the applicable Project Budget, the Company shall, to the
extent permitted to do so pursuant to Section 5.5.3(b) or Section 5.5.3(c),
instruct the Disbursement Agent to transfer from the Completion Guaranty
Deposit Account and/or the Project Liquidity Reserve Account to the
Disbursement Account funds in the amount required to timely pay all Project
Costs then due and payable. The Company shall not apply any funds on deposit in
the Completion Guaranty Deposit Account or the Project Liquidity Reserve
Account except as permitted in Sections 5.5.1, 5.5.3(b), 5.5.3(c) and 5.14.2
and (solely with respect to the Project Liquidity Reserve Account) Section
2.2.8.
(b) The Company may withdraw funds from the Completion
Guaranty Deposit Account and/or Project Liquidity Reserve Account for the sole
purpose of transferring such funds to the Disbursement Account to be Advanced
to pay Project Costs related to the Phase I Project first, from the Completion
Guaranty Deposit Account, and second, when no funds remain in the Completion
Guaranty Deposit Account, from the Project Liquidity Reserve Account but only
if the following condition shall have been satisfied:
The amount of funds withdrawn shall not exceed $80,000,000
amortized from and after the Closing Date at a rate such that,
from time to time:
(A) the ratio of:
-------------
(x) the amortized portion of the $80,000,000 to
(y) $80,000,000 shall equal --
-----------
(B) the ratio of:
-------------
(x) Hard Costs incurred since the date
construction of the Phase I Project commenced in accordance with the Phase I
Project Budget and allocated to the following Line Item Categories with respect
to the Phase I Project: "GMP Contract," "Interior
Furnishings/Signage/Electronic Systems," "Miscellaneous Capital Projects,"
"Golf Course" and "Parking Garage" to
--
(y) the total amount of Hard Costs set forth in
the Phase I Project Budget (as then in effect) under the following Line Item
Categories allocated to the Phase I Project: "GMP Contract," "Interior
Furnishings/Signage/Electronic Systems," "Miscellaneous Capital Projects,"
"Golf Course" and "Parking Garage"; and
(c) From and after the Phase II Fifty Percent Completion
Date, the Company may withdraw any funds from the Completion Guaranty Deposit
Account for the sole purpose of transferring such funds to the Company's Funds
Account to be Advanced thereafter to pay Project Costs related to the Phase II
Project but only if the following condition shall have been satisfied:
The amount of funds withdrawn shall not exceed $30,000,000
amortized from and after the Phase II Fifty Percent Completion Date at a
rate such that, from time to time:
(A) the ratio of:
-------------
(x) the amortized portion of the $30,000,000 to
(y) $30,000,000 shall equal --
-----------
(B) the ratio of:
-------------
(x) Hard Costs incurred from and after the Phase
II Fifty Percent Completion Date in accordance with the Phase II Project Budget
(excluding Hard Costs allocated to the "Owner FF&E" Line Item Category and any
other Hard Costs reasonably approved by the Construction Consultant) to
--
(y) fifty percent (50%) of the total amount of
Hard Costs set forth in the Phase II Project Budget (as then in effect)
(excluding Hard Costs allocated to the "Owner FF&E" Line Item Category and any
other Hard Costs reasonably approved by the Construction Consultant).
5.6 MATERIAL PROJECT DOCUMENTS AND PERMITS. Deliver to the
Disbursement Agent, the Funding Agents and the Construction Consultant
promptly, but in no event later than twenty (20) days after the receipt thereof
by the Company, copies of (a) all Material Project Documents and Permits
described on Exhibit J-1 or J-2 that are obtained or entered into by the
Company or any other Loan Party after the Closing Date and (b) any material
amendment, supplement or other material modification to any Permit received by
the Company or any other Loan Party after the Closing Date.
5.7 STORAGE REQUIREMENTS FOR OFF-SITE MATERIALS AND DEPOSITS. Cause
all Unincorporated Materials to be stored and identified in a manner that would
satisfy the conditions set forth in clauses (a) through (j) of Section 3.2.19
in all material respects.
5.8 PLANS AND SPECIFICATIONS. Provide to the Disbursement Agent and
the Construction Consultant copies of, and maintain at the Site, a complete set
of Final Plans and Specifications, as in effect from time to time.
5.9 PAYMENT AND PERFORMANCE BONDS. Cause (a) the Phase I Primary
Contractor to provide a Payment and Performance Bond to secure its obligations
under the Phase I Primary Construction Contract; (b) the Phase I Primary
Contractor to cause each Subcontractor (working under a Subcontract in effect
on the Closing Date with a total contract amount or value of more than
$25,000,000) to provide a Payment and Performance Bond to secure its
obligations under its respective Subcontract; (c) the Phase II Primary
Contractor to, within the later of: (i) ten (10) days after execution of the
Phase II Primary Construction Contract and (ii) the date construction of the
Phase II Project commences, provide a Payment and Performance Bond to secure
its obligations under the Phase II Primary Construction Contract; and (d) each
Phase II Primary Contractor to cause each Subcontractor (working under a
Subcontract with a total contract amount or value of more than $25,000,000),
within fifteen (15) calendar days after execution of its Subcontract, to
provide a Payment and Performance Bond to secure its obligations under its
respective Subcontract. Each such Payment and Performance Bond shall name the
Collateral Agent as additional obligee and shall be in substantially the form
of Exhibit O hereto or as otherwise approved by the Disbursement Agent.
Promptly after receipt thereof, deliver the originals of each such Payment and
Performance Bonds to the Disbursement Agent with a copy to the Construction
Consultant.
5.10 RETAINAGE AMOUNTS. Withhold from each Contractor performing labor
at the Site (excluding the Phase I Parking Structure Contractor and any other
Contractor reasonably approved by Disbursement Agent (in consultant with the
Construction Consultant)), and cause each such Contractor to withhold from its
first tier Subcontractors performing labor at the Site, a retainage equal to
ten (10%) of each payment made to such Contractor or Subcontractor pursuant to
its respective Contract or Subcontract; provided, however, that at such time as
(i) the applicable Contractor or Subcontractor shall have completed fifty
percent (50%) of the work under its respective Contract or Subcontract and (ii)
if a Payment and Performance Bond is required under Section 5.9 with respect to
such Contract or Subcontract, the Company shall have obtained a "Consent of
Surety to Reduction in or Partial Release of Retainage" (AIA form G707A) from
the surety that issued such Payment and Performance Bond and delivered such
consent to the Disbursement Agent with a copy to the Construction Consultant,
then the retainage withheld may be reduced from ten (10%) percent to five (5%)
percent of the contract value as adjusted by change orders, if any.
5.11 CONSTRUCTION CONSULTANT.
(a) Cooperate and use commercially reasonable efforts to
cause the Project Architects, the Primary Contractors, the Phase I Golf Course
Designer, the Phase I Aqua Theater and Showroom Designer, the Phase I Golf
Course Contractor, the Phase II Major Architects and the Phase II Major
Contractors to cooperate with the Construction Consultant in the performance of
the Construction Consultant's duties hereunder and under the Construction
Consultant Engagement Agreement. Without limiting the generality of the
foregoing, the Company shall and shall use commercially reasonable efforts to
cause the Project Architects, the Primary Contractors, the Phase I Golf Course
Designer, the Phase I Aqua Theater and Showroom Designer, the Phase I Golf
Course Contractor, the Phase II Major Architects and the Phase II Major
Contractors to: (i) communicate with and promptly provide all invoices,
documents, plans and other information reasonably requested by the Construction
Consultant relating to the work, (ii) authorize any material subcontractors or
subconsultants of any tier to communicate directly with the Construction
Consultant regarding the progress of the work, (iii) provide the Construction
Consultant with access to the Site and, subject to required safety precautions,
the construction areas, (iv) solely in the case of the Primary Contractors,
provide the Construction Consultant with reasonable working space and access to
telephone, copying and telecopying equipment and (v) otherwise facilitate the
Construction Consultant's review of the construction of the Projects and
preparation of the certificates required hereby.
(b) Pay or cause to be paid to the Construction Consultant
out of the Advances made hereunder all amounts required hereunder and under the
Construction Consultant Engagement Agreement.
(c) In addition to any other consultation required hereunder,
following the end of each quarter, upon the request of the Bank Agent, consult
with the Bank Agent regarding any adverse event or condition identified in any
report prepared by the Construction Consultant.
(d) Deliver to the Construction Consultant, no less frequently \
than every thirty (30) days, the Phase I Anticipated Cost Report and, from and
after the Phase II Approval Date, the Phase II Anticipated Cost Report, in each
case, as in effect from time to time.
5.12 GOVERNMENTAL AND ENVIRONMENTAL REPORTS. Deliver to the Funding
Agents, the Disbursement Agent and the Construction Consultant copies of all
material reports required to be filed by the Company with any Governmental
Authority.
5.13 INSURANCE. The Company shall, and shall cause each Loan Party to,
at all times maintain in full force and effect the insurance policies and
programs listed on Exhibit L. The Company shall have delivered to the
Disbursement Agent (i) within 45 days after the Closing Date for each
Contractor party to a Material Project Document in effect on the Closing Date
and (ii) for any Material Project Document entered into after the Closing Date,
within 45 days after execution of such Material Project Document, certified
copies of all policies evidencing such insurance (or a binder, commitment or
certificates signed by the insurer or a broker authorized to bind the insurer)
which insurance shall, to the extent reasonably available, name the
Disbursement Agent, the Collateral Agent, the Funding Agents and the Lenders as
additional insureds.
5.14 APPLICATION OF INSURANCE AND CONDEMNATION PROCEEDS.
5.14.1 Event of Loss. If any Event of Loss shall occur with
respect to a Project or any other asset of any Loan Party, the Company shall
and shall cause each other Loan Party (a) promptly upon discovery or receipt of
notice thereof to provide written notice thereof to the Disbursement Agent with
respect to any Event of Loss over One Hundred Thousand Dollars ($100,000), and
(b) diligently to pursue all its rights to compensation against all relevant
insurers, reinsurers and/or Governmental Authorities, as applicable, in respect
of such event to the extent that the Company or such Loan Party has a
reasonable basis for a claim for compensation or reimbursement, including,
without limitation, under any insurance policy required to be maintained
hereunder. All amounts and proceeds (including instruments) in respect of any
Event of Loss, including the proceeds of any insurance policy required to be
maintained by the Company hereunder (collectively, "Loss Proceeds") shall be
applied as provided in this Section.
5.14.2 Application of Loss Proceeds.
(a) Phase I Project. The Company shall direct that all
Loss Proceeds in respect of the Phase I Project at any time prior to the Phase
I Substantial Completion Date in respect of such Project shall be paid by the
insurers, reinsurers, Governmental Authorities or other payors directly to the
Disbursement Agent for deposit in the Company's Funds Account. In the event
that for a period of one hundred twenty (120) days after any such Loss Proceeds
are deposited in the Company's Funds Account, the Company is not permitted
pursuant to the terms hereof to obtain Advances of such Loss Proceeds to pay
Project Costs allocated to the Phase I Project in the Phase I Project Budget,
then the Company shall use all other such proceeds and funds on deposit in the
Completion Guaranty Deposit Account and the Project Liquidity Reserve Account
to prepay the Loans and the 2014 Notes in accordance with the Bank Credit
Agreement and the 2014 Notes Indenture, respectively, in each case, subject to
the Intercreditor Agreement.
(b) Phase II Project. The Company shall direct that
all Loss Proceeds in respect of the Phase II Project at any time prior to the
Phase II Completion Date in respect of such Project shall be paid by the
insurers, reinsurers, Governmental Authorities or other payors directly to the
Disbursement Agent for deposit in the Company's Funds Account. In the event
that for a period of one hundred twenty (120) days after any such Loss Proceeds
are deposited in the Company's Funds Account, the Company is not permitted
pursuant to the terms hereof to obtain Advances of such Loss Proceeds to pay
Project Costs allocated to the Phase II Project in the Phase II Project Budget,
then the Company shall use all other such proceeds and funds on deposit in the
Completion Guaranty Deposit Account and the Project Liquidity Reserve Account
to prepay the Loans and the 2014 Notes in accordance with the Bank Credit
Agreement and the 2014 Notes Indenture, respectively, in each case, subject to
the Intercreditor Agreement.
5.14.3 Loss Proceeds Received by Other Parties. If any Loss
Proceeds required to be deposited into the Company's Funds Account under
Section 5.14.2 above are paid directly to the Company, any affiliate of the
Company or any Funding Agent or Lender by any insurer, reinsurer, Governmental
Authority, any landlord or grantor under the Affiliate Real Estate Agreements
or such other payor, (i) such Loss Proceeds shall be received in trust for the
Disbursement Agent, (ii) such Loss Proceeds shall be segregated from other
funds of the Company or such other Person and (iii) the Company or such other
Person shall pay (or, if applicable, the Company shall cause such of its
affiliates to pay) such Loss Proceeds over to the Disbursement Agent in the
same form as received (with any necessary endorsement) for deposit in the
Company's Funds Account to be applied as provided in Section 5.14.2 above.
5.15 COMPLIANCE WITH MATERIAL PROJECT DOCUMENTS. The Company shall
comply, in all material respects, with its obligations, and enforce all of its
respective rights under all Material Project Documents, except where the
failure to comply or enforce such rights, as the case may be, could not
reasonably be expected to have a Material Adverse Effect.
5.16 UTILITY EASEMENT MODIFICATIONS. The Company shall diligently
cause all utility or other easements that would interfere in any material
respect with the construction or maintenance of the improvements contemplated
with respect to the Projects to be removed as expeditiously as possible. In any
event, the Company shall remove such easements before they interfere in any
material respect with the prosecution of the work involved with the Phase I
Project or the Phase II Project in accordance with the Project Schedules, and
in any event, prior to the Phase I Opening Date (for easements affecting the
Phase I Project) and prior to the Phase II Opening Date (for easements
affecting the Phase II Project).
5.17 CONSTRUCTION ON SITE. The Company shall construct (a) the Golf
Course only on the Golf Course Land, (b) the Phase II Project only on the Phase
II Land and (c) the Phase I Project (excluding the Golf Course) on the Site
(excluding the Golf Course Land and the Phase II Land).
ARTICLE 6.
- NEGATIVE COVENANTS
--------------------
The following covenants are made (i) as to the Phase I Project prior
to the Phase I Final Completion Date only and (ii) as to the Phase II Project,
after the Phase II Approval Date only; provided, however, that the covenants
set forth in Section 6.1.1, 6.4, 6.5 and 6.6 shall apply to the Phase II
Project both prior to and after the Phase II Approval Date. Subject to the
preceding sentence, the Company covenants and agrees, with and for the benefit
of the Bank Agent, and, until the 2014 Notes Proceeds Account has been
Exhausted, the 2014 Notes Indenture Trustee, the Lenders and the Disbursement
Agent that it shall not:
6.1 WAIVER, MODIFICATION, TERMINATION AND AMENDMENT OF PERMITS AND
CONTRACTS. Enter into, amend, modify, terminate (except in accordance with its
terms), supplement or waive a right or consent to the amendment, modification,
termination (except in accordance with its terms), supplement or waiver of any
of the provisions of, or give any consent under (a) any Permit, the effect of
which could reasonably be expected to have a Material Adverse Effect, (b) the
Construction Guaranty or any material Payment and Performance Bond without the
consent of the Bank Agent (such consent not to be unreasonably withheld) unless
it could not reasonably be expected to have an adverse effect on the Company or
any Lender or (c) any other Contract, the effect of which could reasonably be
expected to have a Material Adverse Effect; and then, in each case, only in
accordance with the procedures set forth in Section 6.1.1 or 6.1.2 below, as
applicable. Subject to the foregoing, the Company may:
6.1.1 enter into Contracts consistent with the Final Plans and
Specifications, the applicable Project Schedule and the applicable Project
Budget, as each is in effect from time to time. Each such Contract shall be
permitted so long as the Company shall have satisfied the following conditions:
(a) if entering into such Contract will result in an amendment to the Project
Budget, the Company has complied with the requirements of Section 6.3; (b) if
entering into such Contract will have the effect of a Scope Change, the Company
has complied with the provisions of Section 6.2; (c) if entering into such
Contract will cause the Project to fail to be In Balance, the Company has
complied with the requirements of Section 5.5; (d) if a Payment and Performance
Bond is required under Section 5.9 with respect to such Contract, the Company
shall have obtained and delivered such Payment and Performance Bond to the
Disbursement Agent within the time period required under Section 5.9; and (e)
for Contracts relating to the Phase II Project with a total contract amount or
value in excess of $100,000,000, the Majority of the Arrangers have approved
such Contract (such approval not to be unreasonably withheld or delayed); and
6.1.2 from time to time, amend any Contracts so long as (a) if
such amendment will result in an amendment to the Project Budget, the Company
has complied with the requirements of Section 6.3; (b) if such amendment will
have the effect of a Scope Change, the Company has complied with the provisions
of Section 6.2; (c) if such amendment will cause the Project to fail to be In
Balance, the Company has complied with the requirements of Section 5.5; (d) the
Company and the Contractor have executed and delivered the contract amendment
(or, in the case of any amendment to a purchase order, such amendment shall
have otherwise become enforceable against the Company and the Contractor
thereunder); and (e) if a Payment and Performance Bond is required under
Section 5.9 with respect to such Contract after giving effect to the amendment,
the Company shall have obtained the written consent of the surety that issued
such Payment and Performance Bond to such amendment and delivered such consent
to the Disbursement Agent with a copy to the Construction Consultant.
6.2 SCOPE CHANGES; COMPLETION; DRAWINGS.
6.2.1 Scope Changes. Without obtaining the Required Scope Change
Approval, direct, consent to or enter into any Scope Change if such Scope
Change:
(a) will cause the Projects not to be In Balance;
(b) is not, in the reasonable judgment of (i) the Company
(in the case of any De Minimis Scope Change) and (ii) the Construction
Consultant (in the case of any Scope Change that is not a De Minimis Scope
Change), consistent with the requirements of Exhibits V-1 and V-2;
(c) in the reasonable judgment of the (i) the Company (in
the case of any De Minimis Scope Change) and (ii) the Construction Consultant
(in the case of any Scope Change that is not a De Minimis Scope Change) (based
on its experience, familiarity and review of the Projects and representations
provided by the Company, the Contractors and Subcontractors), could reasonably
be expected to delay the Phase I Opening Date beyond the Phase I Scheduled
Opening Date, the Phase I Substantial Completion Date beyond the Phase I
Scheduled Substantial Completion Date, the Phase I Completion Date beyond the
Phase I Scheduled Completion Date, the Phase II Opening Date beyond the Phase
II Scheduled Opening Date or the Phase II Completion Date beyond the Phase II
Scheduled Completion Date;
(d) in the reasonable judgment of (i) the Company (in the
case of any De Minimis Scope Change) and (ii) the Construction Consultant (in
the case of any Scope Change that is not a De Minimis Scope Change), could
reasonably be expected to result in any materially adverse modification of, or
materially impair the enforceability of, any material warranty under any
Material Construction Agreement;
(e) in the reasonable judgment of (i) the Company (in the
case of any De Minimis Scope Change) and (ii) the Construction Consultant (in
the case of any Scope Change that is not a De Minimis Scope Change), could
reasonably be expected to present a significant risk of the revocation or
material adverse modification of any material Permit;
(f) in the reasonable judgment of (i) the Company (in the
case of any De Minimis Scope Change) and (ii) the Construction Consultant or
the Project Architects (in the case of any Scope Change that is not a De
Minimis Scope Change), could reasonably be expected to cause the Projects or
any portion thereof not to comply with Legal Requirements in any material
respect (provided that the Construction Consultant shall be entitled to
determine that no violation of any Legal Requirement will occur on the basis of
a certification by the Company to such effect unless the Construction
Consultant is aware of any inaccuracies in such certification); or
(g) in the reasonable judgment of the Company could
reasonably be expected to result in a material adverse modification,
cancellation or termination of any insurance policy required to be maintained
by the Company pursuant to Section 5.13.
Prior to implementing any Scope Change (other than a De
Minimis Scope Change or the acceptance of non-conforming work), the Company
shall comply with the provisions of Section 6.1. Prior to implementing any
Scope Change (including a DeMinimis Scope Change but excluding the acceptance
of non-conforming work) (x) under the Phase I Primary Construction Contract,
the Company shall comply with Section 18.10.1 of the Phase I Primary
Construction Contract (including obtaining the written consent of the surety
under the Phase I Primary Contractors Payment and Performance Bond to such
Scope Change) and (y) under any other Contract, as to which the Company is
required to obtain a Payment and Performance Bond pursuant to Section 5.9, the
Company shall obtain the written consent of the surety under the relevant
Payment and Performance Bond to such Scope Change (if required under the
applicable Payment and Performance Bond).
6.2.2 Substantial and Final Completion. Accept (or be deemed to
have confirmed) any notice of "Substantial Completion" or "Final Completion" of
all or any portion of the Projects issued by any Contractor under any Material
Construction Agreement (including, without limitation, Sections 12.1 and 12.2
of the Phase I Primary Construction Contract) without the written approval of
the Construction Consultant and the Project Architects (provided that the
Construction Consultant and Project Architects shall act with due diligence and
as promptly as possible in making their determination to approve or disapprove
and the Disbursement Agent shall instruct the Construction Consultant to
approve such notice if the conditions to "Substantial Completion" or "Final
Completion" set forth in such Material Construction Agreement have been
satisfied).
6.2.3 Reduction of Retainage Amounts. Reduce the level of
Retainage Amounts withheld pursuant to Section 5.6 of the Phase I Primary
Construction Contract.
6.2.4 Failure to Withhold Retainage Amounts. Fail to retain as
Retainage Amounts pursuant to Section 5.7 of the Phase I Primary Construction
Contract a sum equal to at least one hundred and fifty percent (150%) of the
costs reasonably estimated by the Company (and confirmed by the Construction
Consultant) as necessary to complete "Punch List Items" (as defined in the
Phase I Primary Construction Contract) unless such retention is not permitted
under applicable laws.
6.2.5 Acceptance of Non-Conforming Work. Knowingly accept any
non-conforming "Work" (as defined in the Phase I Primary Construction Contract)
pursuant to Section 10.9 of the Phase I Primary Construction Contract unless
the Company shall have complied with the requirements of Section 6.2.1.
6.2.6 Approval of the Schedule of Values. (a) Approve any change,
modification or supplement to the "Schedule of Values" in effect on the Closing
Date for the Phase I Project pursuant to Section 5.1 of the Phase I Primary
Construction Contract or approve the initial "Schedule of Values" (or
comparable provision) for the Phase II Project under the Phase II Primary
Construction Contract, or any change, modification or supplement thereto,
without, in each case, the consent of the Construction Consultant or (b) fail
to direct any Primary Contractors to adjust the Schedule of Values for any
portion of the Projects as contemplated in the last sentence of Section 5.1 of
the Phase I Primary Construction Contract or any similar provision of the Phase
II Primary Construction Contract as and when required by the Construction
Consultant.
6.2.7 Increase in Contractor's Fee. Accept or agree to any
increase in the "Contractor's Fee" (as defined in the Phase I Primary
Construction Contract) for any reason, except to the extent required pursuant
to Section 18.5.2 of the Phase I Primary Construction Contract.
6.3 PROJECT BUDGET AND PROJECT SCHEDULE AMENDMENT. Amend, modify,
allocate, re-allocate or supplement or consent to the amendment, modification,
allocation, re-allocation or supplementation of, any of the Line Item
Categories or other provisions of the Project Budgets or modify or extend the
Phase I Scheduled Opening Date, the Phase I Scheduled Substantial Completion
Date, the Phase I Scheduled Completion Date, the Phase II Scheduled Opening
Date or the Phase II Scheduled Completion Date, except as follows:
6.3.1 Permitted Budget Amendments.
(a) Concurrently with the implementation of any Scope
Change, the Company shall submit a Project Budget/Schedule Amendment
Certificate and amend the applicable Project Budget in accordance with the
provisions of Section 6.3.1(c) to the extent necessary so that the amount set
forth therein for each Line Item Category shall reflect all Scope Changes that
have been made to such Line Item Category.
(b) The Company may from time to time amend the Project
Budgets in accordance with the provisions of Section 6.3.1(c) in order to
increase, decrease or otherwise reallocate amounts allocated to specific Line
Item Categories.
(c) (i) The Company shall implement any amendment to the
Project Budgets by delivering to the Disbursement Agent a Project
Budget/Schedule Amendment Certificate together with all exhibits, attachments
and certificates required thereby, each duly completed and executed. Such
Project Budget/Schedule Amendment Certificate shall describe with particularity
the Line Item Category increases, decreases, contingency allocations, and other
proposed amendments to the Project Budgets.
(ii) Increases to the aggregate amount budgeted for any
Line Item Category allocated to any particular Project in the applicable
Project Budget will only be permitted to the extent of (A) allocation of
Realized Savings obtained in a different Line Item Category, (B) allocation of
the previously unallocated amounts under the "Construction Contingency" Line
Item Category for such Project (so long as after giving effect to such
allocation the Unallocated Phase I Contingency Balance will equal or exceed the
Required Phase I Minimum Contingency and the Unallocated Phase II Contingency
Balance will equal or exceed the Required Phase II Minimum Contingency) or (C)
allocation of an increase in Available Funds including additional funds
deposited in the Company's Funds Account.
(iii) Decreases to any Line Item Category allocated to
any particular Project in the applicable Project Budget will only be permitted
upon obtaining Realized Savings in such Line Item Category.
(d) Increases and decreases to particular Line Items set
forth in column C ("Current Budget") of the Anticipated Cost Reports or Column
D ("Revised Project Budget") of the Monthly Requisition Reports shall be
permitted to the extent not inconsistent with the foregoing provisions of
Sections 6.3.1(a) and (c) (except that the Company is not required to submit a
Project Budget/Schedule Amendment Certificate in connection therewith);
provided that increases to the "Hard Cost Construction Contingency" Line Item
and the "Soft Cost Construction Contingency" Line Item allocated to any
particular Project in the applicable Project Budget shall only be permitted to
the extent of (x) an allocation of Realized Savings obtained in any Line Item
Category allocated to such Project in the applicable Project Budget or (y) an
increase in Available Funds including additional funds deposited in the
Company's Funds Account or (z) solely with respect to the Phase II Project
Budget after the Phase I Completion Date has occurred, an allocation of
Realized Savings obtained in any Line Item Category in the Phase I Project
Budget.
6.3.2 Permitted Schedule Amendments.
(a) The Company may, from time to time, amend the Project
Schedules (i) to extend the Phase I Scheduled Opening Date, the Phase I
Scheduled Substantial Completion Date or the Phase I Scheduled Completion Date,
but not beyond the Outside Phase I Opening Deadline, the Outside Phase I
Substantial Completion Deadline and the Outside Phase I Completion Deadline,
respectively, and/or (ii) to extend the Phase II Scheduled Opening Date or the
Phase II Scheduled Completion Date but not beyond the Outside Phase II Opening
Deadline and the Outside Phase II Completion Deadline, respectively, by
delivering to the Disbursement Agent a Project Budget/Schedule Amendment
Certificate (a) containing a revised Project Schedule reflecting the new Phase
I Scheduled Opening Date, Phase I Scheduled Substantial Completion Date, Phase
I Scheduled Completion Date, Phase II Scheduled Opening Date or Phase II
Scheduled Completion Date, as the case may be, and (b) complying with the
provisions of Section 6.3.1(c) with respect to the changes in the Project
Budgets that will result from such extension.
(b) If an Event of Force Majeure occurs, then the Company
shall be permitted to extend the Outside Phase I Opening Deadline to the extent
that the Company certifies in writing, and the Construction Consultant confirms
in its reasonable judgment, to the Disbursement Agent that such extension is
reasonably necessary to overcome any delays caused by the Event of Force
Majeure, provided that no such extension may extend beyond December 30, 2005.
If an Event of Force Majeure occurs, then the Company shall be permitted to
extend the Outside Phase I Substantial Completion Deadline to the extent that
the Company certifies in writing, and the Construction Consultant confirms in
its reasonable judgment, to the Disbursement Agent that such extension is
reasonably necessary to overcome any delays caused by the Event of Force
Majeure, provided that no such extension may extend beyond December 30, 2005.
If an Event of Force Majeure occurs, then the Company shall be permitted to
extend the Outside Phase I Completion Deadline to the extent that the Company
certifies in writing, and the Construction Consultant confirms in its
reasonable judgment, to the Disbursement Agent that such extension is
reasonably necessary to overcome any delays caused by the Event of Force
Majeure, provided that no such extension may extend beyond March 30, 2006.
(c) If an Event of Force Majeure occurs, then the Company
shall be permitted to extend the Outside Phase II Opening Deadline to the
extent that the Company certifies in writing, and the Construction Consultant
confirms in its reasonable judgment, to the Disbursement Agent that such
extension is reasonably necessary to overcome any delays caused by the Event of
Force Majeure, provided that no such extension may extend beyond June 30, 2008.
If an Event of Force Majeure occurs, then the Company shall be permitted to
extend the Outside Phase II Completion Deadline to the extent that the Company
certifies in writing, and the Construction Consultant confirms in its
reasonable judgment, to the Disbursement Agent that such extension is
reasonably necessary to overcome any delays caused by the Event of Force
Majeure, provided that no such extension may extend beyond September 30, 2008.
6.3.3 Amendment Certificates. Upon submission of the Project
Budget/Schedule Amendment Certificate for a particular Project to the
Disbursement Agent, together with all exhibits, attachments and certificates
required pursuant thereto, each duly executed, such amendment shall become
effective hereunder, and the applicable Project Budget and, if applicable, the
applicable Project Schedule and the Phase I Scheduled Opening Date, the Phase I
Scheduled Substantial Completion Date, the Phase I Scheduled Completion Date,
the Phase II Scheduled Opening Date or Phase II Scheduled Completion Date, as
the case may be, shall thereafter be as so amended.
6.4 OPENING. Cause or permit the Opening Date for either Project to
occur unless each of the Opening Conditions for such Project has been satisfied
or waived by the Majority of the Arrangers and (i) the Company has delivered to
the Disbursement Agent a certificate substantially in the form of Exhibit S-1
(or as otherwise approved by the Majority of the Arrangers) and has caused the
applicable Primary Contractor to deliver to the Disbursement Agent a
certificate in the form of Exhibit S-3 or S-5, as the case may be, (ii) the
Construction Consultant has delivered to the Disbursement Agent a certificate
in the form of Exhibit S-2 to this Agreement (or as otherwise approved by the
Majority of the Arrangers) and (iii) the applicable Project Architect has
delivered to the Disbursement Agent a certificate substantially in the form of
Exhibit S-4 or S-6, (or as otherwise approved by the Majority of the Arrangers)
as the case may be, to this Agreement; provided, however, that the Company
shall be permitted to open the Phase I Project at such time as the Phase I
Project (excluding the Entertainment Facility and the Fairway Villas) satisfies
the Opening Conditions and upon delivery of the certificates required above;
provided, further, that the Company shall be permitted to open the Phase II
Project at such time as the Phase II Project (excluding the Retail Facility)
satisfies the Opening Conditions and upon delivery of the certificates required
above. The Company shall thereafter open the Entertainment Facility and the
Fairway Villas for business upon the Company's reasonable determination that
the Phase I Project (including the Entertainment Facility and the Fairway
Villas) satisfies the Opening Conditions. If the Company has elected to build
the Retail Facility as part of the Phase II Project, then the Company shall
thereafter open the Retail Facility for business upon the Company's reasonable
determination that the Phase II Project (including the Retail Facility)
satisfies the Opening Conditions.
6.5 ADDITIONAL CONSTRUCTION AGREEMENTS. Enter into or become a party
to any Additional Construction Agreement except (a) with the prior written
consent of the Bank Agent or as permitted under Section 6.1 and (b) if such
Additional Construction Agreement is a Material Construction Agreement, upon
delivery to the Bank Agent of a Consent from each third party to such
Additional Construction Agreement; provided that the consent of the Bank Agent
shall not be required for a Loan Party to enter into Additional Construction
Agreements (i) with Persons other than Affiliates of Loan Parties and (ii)
pursuant to which the Loan Parties as a whole will incur obligations or
liabilities with a value of not more than $15,000,000 per year with respect to
any Additional Construction Agreement.
6.6 UNINCORPORATED MATERIALS. Cause or permit (a) the value of
Unincorporated Materials located at the Site but not expected to be
incorporated into the Projects within the ensuing calendar month to exceed
$10,000,000 at any time, (b) the amounts paid by the Company in respect of
Unincorporated Materials not located at the Site to exceed a value of
$45,000,000 at any time or (c) the amount of contract deposits paid by the
Company in respect of Unincorporated Materials to exceed a value of $30,000,000
at any time. The foregoing limits on Unincorporated Materials may be increased
from time to time to an amount mutually agreed upon among the Company, the
Construction Consultant and the Disbursement Agent.
ARTICLE 7.
- EVENTS OF DEFAULT
-------------------
7.1 EVENTS OF DEFAULT. The occurrence of any of the following events
shall constitute an event of default ("Event of Default") hereunder:
7.1.1 Other Financing Documents. The occurrence of an "Event of
Default" under and as defined in the (a) Bank Credit Agreement or (b) 2014
Notes Indenture.
7.1.2 Failure to Demonstrate Balancing. The failure of the
Projects to be In Balance and such failure shall continue for thirty (30) days
without being cured; provided, however, that the cure period may be extended as
is reasonably necessary beyond such 30 day period if such failure is the result
of any Event of Force Majeure (but in no event shall such cure period, as
extended, be longer than sixty (60) days in the aggregate).
7.1.3 Failure to Deliver Advance Request. The failure, for sixty
(60) consecutive days, of the Company to submit an Advance Request which is
approved by the Disbursement Agent; provided, however, that the cure period may
be extended as is reasonably necessary beyond such 60 day period if such
failure is the result of any Event of Force Majeure (but in no event shall such
cure period, as extended, be longer than ninety (90) days in the aggregate).
7.1.4 Covenants.
(a) The Company shall fail to perform or observe any of its
obligations under Sections 5.1, 5.5.1, 5.5.3, 5.9, 5.14, 6.1, 6.2, 6.3 or 6.4
hereof; or
(b) The Company shall fail, or shall fail to cause each Loan
Party, to at all times maintain in full force and effect the insurance policies
and programs listed on Exhibit L (except for automobile, workers compensation,
pollution liability and design errors and omissions insurance); or
(c) The Company shall fail, or shall fail to cause each Loan
Party, to at all times maintain in full force and effect the insurance policies
and programs with respect to automobile, workers compensation, pollution
liability and design errors and omissions insurance listed on Exhibit L where
such default shall not have been remedied within thirty (30) days after the
earlier of (i) the Company or any other Loan Party becoming aware of such
breach or default or (ii) notice of such failure from the Disbursement Agent or
any Funding Agent to the Company; or
(d) The Company shall fail to perform or observe any of its
obligations under Articles 5 or 6 hereof (other than those listed in Sections
7.1.4(a), (b) or (c) above) where such default shall not have been remedied
within thirty (30) days after the earlier of (i) the Company or any other Loan
Party becoming aware of such breach or default or (ii) notice of such failure
from the Disbursement Agent or any Funding Agent to the Company; provided,
however, solely with respect to Section 5.5.2, the cure period may be extended
as is reasonably necessary beyond such 30 day period if such failure is the
result of any Event of Force Majeure (but in no event shall such cure period,
as extended, be longer than sixty (60) days in the aggregate).
7.1.5 Breach of Material Construction Agreements.
(a) Any Loan Party shall breach or default (after giving
effect to applicable cure periods and grace periods) under any term, condition,
provision, covenant, representation or warranty contained in any Material
Construction Agreement in any material respect and such breach or default shall
continue unremedied for thirty (30) days after the earlier of (i) the Company
or any other Loan Party becoming aware of such breach or default or (ii)
receipt by the Company or any other Loan Party of notice from the Disbursement
Agent or any Funding Agent of such breach or default; provided, however, that
if the breach or default is reasonably susceptible to cure within forty-five
(45) days but cannot be cured within such thirty (30) days despite such other
party's good faith and diligent efforts to do so, the cure period shall be
extended as is reasonably necessary beyond such thirty (30) day period (but in
no event shall such cure period, as extended, be longer than forty-five (45)
days in the aggregate) if remedial action reasonably likely to result in cure
is promptly instituted within such thirty (30) day period and is thereafter
diligently pursued until the breach or default is corrected; or
(b) Any party (other than any Loan Party) shall breach or
default (after giving effect to applicable cure periods and grace periods) in
any material respect under any term, condition, provision, covenant,
representation or warranty contained in any Primary Construction Contract, any
Construction Guaranty or any other Contract with a total contract amount or
value in excess of $100,000,000 and such breach or default shall continue
unremedied for thirty (30) days after the earlier of (i) the Company or any
other Loan Party becoming aware of such breach or default or (ii) receipt by
the Company or any other Loan Party of notice from any Funding Agent of such
breach or default; provided, however, that (A) if the breach or default is
reasonably susceptible to cure within ninety (90) days but cannot be cured
within such thirty (30) days despite such other party's good faith and diligent
efforts to do so, the cure period shall be extended as is reasonably necessary
beyond such thirty (30) day period (but in no event shall such cure period, as
extended, be longer than ninety (90) days in the aggregate) if remedial action
reasonably likely to result in cure is promptly instituted within such thirty
(30) day period and is thereafter diligently pursued until the breach or
default is corrected and (B) no Potential Event of Default or Event of Default
shall be deemed to have occurred as a result of such breach if the Company
provides written notice to the Funding Agents promptly upon (but in no event
more than five (5) Banking Days after) the Company or any Loan Party becoming
aware of such breach that the Company intends to replace such Contract (or that
replacement is not necessary) and (1) within ninety (90) days of such breach
the Company obtains a replacement obligor or obligors reasonably acceptable to
the Disbursement Agent (in consultation with the Construction Consultant) for
the affected party (if in the judgment of the Disbursement Agent (in
consultation with the Construction Consultant) a replacement is necessary), (2)
the Company enters into a replacement Contract on terms no less beneficial,
taken as a whole, to the Company and the Secured Parties in any material
respect than the Contract so breached within ninety (90) days of such breach
(if in the reasonable judgment of the Disbursement Agent (in consultation with
the Construction Consultant) a replacement is necessary); provided, however
that the replacement Contract may require the Company to pay amounts to the
replacement obligor in excess of those that would have been payable under the
breached Contract if such additional payments in the reasonable judgment of the
Disbursement Agent, in consultation with the Construction Consultant, do not
cause the Projects to fail to be In Balance and (3) such breach or default,
after considering any replacement obligor and replacement Contract and the time
required to implement such replacement, has not had and could not reasonably be
expected to have a Material Adverse Effect; or
(c) Any party (other than any Loan Party) shall breach or
default (after giving effect to applicable cure periods and grace periods) in
any material respect under any term, condition, provision, covenant,
representation or warranty contained in any other Contract the effect of which
could reasonably be expected to have a Material Adverse Effect and such breach
or default shall continue unremedied for thirty (30) days after the earlier of
(i) the Company or any other Loan Party becoming aware of such breach or
default or (ii) receipt by the Company or any other Loan Party of notice from
any Funding Agent of such breach or default; provided, however, that (A) if the
breach or default is reasonably susceptible to cure within ninety (90) days but
cannot be cured within such thirty (30) days despite such other party's good
faith and diligent efforts to do so, the cure period shall be extended as is
reasonably necessary beyond such thirty (30) day period (but in no event shall
such cure period, as extended, be longer than ninety (90) days in the
aggregate) if remedial action reasonably likely to result in cure is promptly
instituted within such thirty (30) day period and is thereafter diligently
pursued until the breach or default is corrected and (B) no Potential Event of
Default or Event of Default shall be deemed to have occurred as a result of
such breach if the Company provides written notice to the Funding Agents
promptly upon (but in no event more than five (5) Banking Days after) the
Company or any Loan Party becoming aware of such breach that the Company
intends to replace such Contract (or that replacement is not necessary) and (1)
within ninety (90) days of such breach the Company obtains a replacement
obligor or obligors reasonably acceptable to the Disbursement Agent (in
consultation with the Construction Consultant) for the affected party (if in
the judgment of the Disbursement Agent (in consultation with the Construction
Consultant) a replacement is necessary), (2) the Company enters into a
replacement Contract on terms no less beneficial, taken as a whole, to the
Company and the Secured Parties in any material respect than the Contract so
breached within ninety (90) days of such breach (if in the reasonable judgment
of the Disbursement Agent (in consultation with the Construction Consultant) a
replacement is necessary); provided, however that the replacement Contract may
require the Company to pay amounts to the replacement obligor in excess of
those that would have been payable under the breached Contract if such
additional payments in the reasonable judgment of the Disbursement Agent, in
consultation with the Construction Consultant, do not cause the Projects to
fail to be In Balance and (3) such breach or default, after considering any
replacement obligor and replacement Contract and the time required to implement
such replacement, has not had and could not reasonably be expected to have a
Material Adverse Effect; or
(d) The Company shall have received a "stop work" notice
under Nevada Revised Statutes Section 624.610 with respect to any Contract with
a total contract amount or value in excess of $15,000,000.
7.1.6 Termination or Invalidity of Material Construction
Agreements; Abandonment of Projects.
(a) Any of the Material Construction Agreements shall have
terminated (other than in accordance with its terms), become invalid or
illegal, or otherwise ceased to be in full force and effect, provided that with
respect to any Material Construction Agreement other than the Primary
Construction Contracts or the Construction Guaranty, no Potential Event of
Default or Event of Default shall be deemed to have occurred as a result of
such termination if the Company provides written notice to the Funding Agents
promptly upon (but in no event more than five (5) Banking Days after) the
Company, the Construction Guarantor or any Loan Party becoming aware of such
Material Construction Agreement ceasing to be in full force or effect that the
Company intends to replace such Material Construction Agreement (or that
replacement is not necessary) and (i) within ninety (90) days of such event the
Company obtains a replacement obligor or obligors reasonably acceptable to the
Disbursement Agent (in consultation with the Construction Consultant), for the
affected party (if in the judgment of the Disbursement Agent (in consultation
with the Construction Consultant) a replacement is necessary), (ii) the Company
enters into a replacement Material Construction Agreement, on terms no less
beneficial, taken as a whole, to the Company and the Secured Parties in any
material respect than the Material Construction Agreement so terminated, within
ninety (90) days of such termination (if in the reasonable judgment of the
Disbursement Agent (in consultation with the Construction Consultant) a
replacement is necessary); provided, however that the replacement Material
Construction Agreement may require the Company to pay additional amounts to the
replacement obligor that would have otherwise been payable under the terminated
Material Construction Agreement if such additional payments in the reasonable
judgment of the Disbursement Agent, in consultation with the Construction
Consultant, do not cause the Company to fail to be In Balance and (iii) such
termination, after considering any replacement obligor and replacement Material
Construction Agreement and the time required to implement such replacement, has
not had and could not reasonably be expected to have a Material Adverse Effect;
(b) The Company shall abandon the Phase I Project for a
period of forty-five (45) days, or, if the Phase II Approval Date occurs, the
Company shall abandon the Phase II Project for a period of 45 days, or
otherwise cease to pursue the operations of either such Project for a period of
forty-five (45) days; provided, however, that the cure period may be extended
as is reasonably necessary beyond such forty-five (45)-day period as a result
of any Event of Force Majeure (but in no event shall such cure period, as
extended, be longer than ninety (90) days in the aggregate).
7.1.7 Schedule; Completion.
(a) Failure to achieve Phase I Opening Date on or before the
Phase I Scheduled Opening Date;
(b) Failure to achieve Phase I Substantial Completion Date
on or before the Phase I Scheduled Substantial Completion Date;
(c) Failure to achieve the Phase I Completion Date on or
before the Phase I Scheduled Completion Date;
(d) If the Phase II Approval Date occurs, failure to achieve
Phase II Opening Date on or before the Phase II Scheduled Opening Date; or
(e) If the Phase II Approval Date occurs, failure to achieve
the Phase II Completion Date on or before the Phase II Scheduled Completion
Date.
7.2 REMEDIES. Upon the occurrence and during the continuation of an
Event of Default, the Funding Agents and the Disbursement Agent may, without
further notice refuse to make any Advances or make any payments from any
Account or other funds held by the Disbursement Agent by or on behalf of the
Company.
The Bank Agent (acting under the Bank Credit Agreement) shall be
entitled to waive any Potential Event of Default or Event of Default without
the consent of the 2014 Notes Indenture Trustee or any other Person. If the
Bank Agent so waives any Potential Event of Default or Event of Default, such
Potential Event of Default or Event of Default shall cease to continue for all
purposes of the Disbursement Agreement and the other Financing Agreements;
provided that any waiver by the Bank Agent (acting under the Bank Credit
Agreement) of any Potential Event of Default or Event of Default under this
Agreement shall not constitute a waiver of any default or event of default
arising under the 2014 Notes Indenture (other than any event of default arising
as a result of a "cross-default" to the Disbursement Agreement under Clauses
(h) and (i) of the definition of "Events of Default" set forth in the 2014
Notes Indenture). Any cure or waiver of any "Event of Default" under the Bank
Credit Agreement that is effective under the terms of the Bank Credit Agreement
shall automatically cure an Event of Default under clause (a) of Section 7.1.1.
Any cure or waiver of any "Event of Default" under the 2014 Notes Indenture
that is effective under the terms of the 2014 Notes Indenture shall
automatically cure an Event of Default under clause (b) of Section 7.1.1.
ARTICLE 8.
- CONSULTANTS AND REPORTS
-------------------------
8.1 REMOVAL AND FEES. Only the Bank Agent in its sole discretion may
remove from time to time the Independent Consultants and upon such removal a
replacement acceptable to the Bank Agent (in its sole discretion) and the
Company (so long as no Event of Default then exists) shall be appointed. Notice
of any replacement Independent Consultant shall be given by the Bank Agent to
the 2014 Notes Indenture Trustee, the Disbursement Agent, the Company and the
Independent Consultant being replaced. All reasonable fees and out-of-pocket
expenses of the Independent Consultants (whether the original ones or
replacements) shall be paid by the Company. The Bank Agent will reasonably
consult with the Company on a regular basis with respect to on-going costs of
the Independent Consultants and unless no Event of Default shall have occurred
and be continuing, if requested by the Company, the Bank Agent may agree with
the Company that such costs be subject to a reasonable fee cap. The 2014 Notes
Indenture Trustee shall not have the right to remove an Independent Consultant
or appoint a replacement. The Company has reviewed the Construction
Consultant's Engagement Agreement and hereby agrees to reimburse the
Disbursement Agent and the Funding Agents for the fees of the Construction
Consultant set forth therein.
8.2 DUTIES. The Disbursement Agent shall cause the Independent
Consultants to be contractually obligated to the Disbursement Agent, the Bank
Agent and the 2014 Notes Indenture Trustee to carry out the activities required
of them in this Agreement and in the Construction Consultant Engagement
Agreement and as otherwise requested by such Funding Agents. The Company
acknowledges that it will not have any cause of action or claim against any
Independent Consultant resulting from any decision made or not made, any action
taken or not taken or any advice given by such Independent Consultant in the
due performance in good faith of its duties, except to the extent arising from
the gross negligence or willful misconduct of such Independent Consultant.
8.3 ACTS OF DISBURSEMENT AGENT. The Disbursement Agent will take such
actions as any Funding Agent or the Company may reasonably request to cause the
Independent Consultants to act diligently in the issuance of all certificates
required to be delivered by the Independent Consultants hereunder and to
otherwise fulfill their obligations to the Disbursement Agent, the Bank Agent
and the 2014 Notes Indenture Trustee as described in the first sentence of
Section 8.2.
ARTICLE 9.
- THE DISBURSEMENT AGENT
------------------------
9.1 APPOINTMENT AND ACCEPTANCE. Subject to and on the terms and
conditions of this Agreement, the Bank Agent, each Bank Lender (by its
execution and delivery of the Bank Credit Agreement or acceptance of an
assignment thereof in accordance with the terms of the Bank Credit Agreement)
and the 2014 Notes Indenture Trustee hereby irrevocably appoint and authorize
the Disbursement Agent to act on their behalf hereunder and under the
Collateral Account Agreements. The Disbursement Agent accepts such appointment
and agrees to exercise commercially reasonable efforts and utilize commercially
prudent practices in the performance of its duties hereunder consistent with
those of similar institutions holding collateral, administering construction
loans and disbursing disbursement control funds.
9.2 DUTIES AND LIABILITIES OF THE DISBURSEMENT AGENT GENERALLY.
9.2.1 Commencing upon execution and delivery hereof, the
Disbursement Agent shall have the right to meet periodically at reasonable
times, however no less frequently than quarterly, upon three (3) Banking Days'
notice, with representatives of the Company, the Construction Consultant, the
Primary Contractors and the Project Architects. The Disbursement Agent may (or
may instruct the Construction Consultant to) perform such inspections of the
Projects as it deems reasonably appropriate in the performance of its duties
hereunder. In addition, the Disbursement Agent shall have the right at
reasonable times upon prior notice to review all relevant information
(including Project Documents) in the Company's possession supporting the
amendments to the Project Budgets, amendments to any Project Documents, the
Company's Advance Requests and any certificates in support of any of the
foregoing, to inspect materials stored on the Mortgaged Property or at any
other location, to review the insurance required pursuant to the terms of the
Financing Agreements, to confirm receipt of endorsements from the Title Insurer
insuring the continuing priority of the liens of the Deeds of Trust as security
for each Advance hereunder, and to examine the Plans and Specifications and all
shop drawings relating to the Projects. The Disbursement Agent is authorized to
contact (or to instruct the Construction Consultant to contact) any Contractor
for purposes of confirming receipt of progress payments. From time to time, at
the request of the Disbursement Agent, the Company shall make available to the
Disbursement Agent the Project Schedule. The Company agrees to cooperate with
the Disbursement Agent in assisting the Disbursement Agent to perform its
duties hereunder and to take such further steps as the Disbursement Agent
reasonably may request in order to facilitate the Disbursement Agent's
performance of its obligations hereunder.
9.2.2 Powers, Rights and Remedies. The Disbursement Agent is
authorized to take such actions and to exercise such powers, rights and
remedies under this Agreement as are specifically delegated or granted to the
Disbursement Agent by the terms hereof, together with such powers, rights and
remedies as are reasonably incidental thereto. The Disbursement Agent agrees to
act in accordance with the instructions of the Bank Agent and in the absence of
such instructions shall take such actions or refrain from acting as it deems
reasonable subject to any express requirements of this Agreement. The
Disbursement Agent shall not act in accordance with the instructions of the
2014 Notes Indenture Trustee, and the 2014 Notes Indenture Trustee shall not
give any instructions to the Disbursement Agent (except, in each case, for
instructions relating to the 2014 Notes Proceeds Account). The Bank Agent shall
be entitled to give instructions to the Disbursement Agent without consulting
with the 2014 Notes Indenture Trustee (except for instructions relating to the
2014 Notes Proceeds Account).
9.2.3 No Risk of Own Funds. None of the provisions of this
Agreement shall require the Disbursement Agent to expend or risk its own funds
or otherwise to incur any personal financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers
(in the absence of gross negligence or willful misconduct on the part of the
Disbursement Agent, as finally, judicially determined by a court of competent
jurisdiction) if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
9.2.4 No Imputed Knowledge. Notwithstanding anything to the
contrary in this Agreement, if the entity acting as Disbursement Agent also
serves as the Collateral Agent or Funding Agent under the Financing Agreements,
and except if such functions shall be performed by the same individuals within
such entity, to the maximum extent permitted by law, the Disbursement Agent
shall not be deemed to have any knowledge of any fact known to such entity in
its capacity as the Collateral Agent or Funding Agent by reason of the fact
that the Disbursement Agent and the Collateral Agent or Funding Agent, as the
case may be, are the same entity. Except as aforesaid, no knowledge of the
collateral agent or any Funding Agent shall be attributed to the Disbursement
Agent. The Disbursement Agent's duties and functions hereunder shall in no way
impair or affect any of the rights and powers of, or impose any duties or
obligations upon the Disbursement Agent in its capacity as Bank Agent or as
Lender. With respect to its participation in the extensions of credit under the
Bank Credit Agreement, the Disbursement Agent shall have the same rights and
powers thereunder as any other Funding Agent or Lender and may exercise the
same as though it were not performing its duties and functions hereunder. The
Disbursement Agent and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of banking, trust, financial advisory or other
business with the Company or any of its Affiliates, and may accept fees and
other consideration from the Company for services in connection with this
Agreement and otherwise without having to account for the same to the Lenders.
Each party hereto acknowledges that, as of the Closing Date, Deutsche Bank
Trust Company Americas and its Affiliates are, in addition to acting as the
Disbursement Agent hereunder, also acting as the initial Bank Agent, Securities
Intermediary, Collateral Agent, investment manager on behalf of the Loan
Parties, and may be a Bank Lender.
9.3 PARTICULAR DUTIES AND LIABILITIES OF THE DISBURSEMENT AGENT.
9.3.1 Reliance For Instructions. The Disbursement Agent may, from
time to time, in the event that any matter arises as to which specific
instructions are not provided herein, request directions from the Bank Agent
with respect to such matters and may refuse to act until so instructed and
shall be fully protected in acting or refusing to act in accordance with such
instructions.
9.3.2 Notice of Events of Default. The Disbursement Agent shall
notify each Funding Agent of an Event of Default or a Potential Event of
Default known to it (which has not been cured or waived).
9.3.3 Reliance Generally. The Disbursement Agent may rely and
shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval or other paper or document believed by it on reasonable grounds
to be genuine and to have been signed or presented by the proper party or
parties. Notwithstanding anything else in this Agreement to the contrary, in
performing its duties hereunder (including, without limitation, approving any
Advance Requests, approving any increases to the Cash Management Account
maximum dollar thresholds and confirming that any of the Opening, Phase I
Substantial Completion, Completion, Final Completion or Completion Guaranty
Release Dates have occurred), making any other determinations or taking any
other actions hereunder, the Disbursement Agent shall be entitled to rely on
certifications from the Company (and, where contemplated herein, certifications
from third parties, including the Construction Consultant, the Project
Architects, the Primary Contractors or any other Contractor) as to satisfaction
of any requirements and/or conditions imposed by this Agreement. The
Disbursement Agent shall not be required to conduct any independent
investigation as to the accuracy, veracity or completeness of any such items or
to investigate any other facts or circumstances to verify compliance by the
Company with its obligations hereunder.
9.3.4 Court Orders. The Disbursement Agent is authorized, in its
exclusive discretion, to obey and comply with all writs, orders, judgments or
decrees issued by any court or administrative agency affecting any money,
documents or things held by the Disbursement Agent. The Disbursement Agent
shall not be liable to any of the parties hereto, their successors, heirs or
personal representatives by reason of the Disbursement Agent's compliance with
such writs, orders, judgments or decrees, notwithstanding the fact that such
writ, order, judgment or decree is later reversed, modified, set aside or
vacated.
9.3.5 Requests, etc. of the Company. Any request, direction, order
or demand of the Company mentioned herein shall be sufficiently evidenced
(unless other evidence in respect thereof be herein specifically prescribed) by
an instrument signed by one of its Responsible Officers, and any resolution of
the Company may be evidenced to the Disbursement Agent by a copy thereof
certified by the Secretary or an Assistant Secretary of the Company.
9.3.6 Reliance on Opinions of Counsel. The Disbursement Agent may
consult with counsel and any written opinion of counsel shall be full and
complete authorization and protection in respect of any action taken or omitted
by it hereunder in good faith and in accordance with such opinion of counsel
except to the extent the Disbursement Agent is grossly negligent or engages in
willful misconduct as finally judicially determined by a court of competent
jurisdiction.
9.3.7 Action through Agents or Attorneys. The Disbursement Agent
may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys appointed with
due care, and the Disbursement Agent shall not be responsible for any act on
the part of any agent or attorney so appointed.
9.3.8 Disagreements.
(a) In the event of any disagreement between a Funding Agent
and the Company or any other Person or Persons whether or not named herein, and
adverse claims or demands are made in connection with or for any of the
investments or amounts held pursuant to this Agreement, the Disbursement Agent
shall be entitled at its option to refuse to comply with any such claim or
demand so long as such disagreement shall continue, and in so doing, the
Disbursement Agent shall not be or become liable for damages or interest to
such Funding Agent or the Company or any other Person or Persons for the
Disbursement Agent's failure or refusal to comply with such conflicting or
adverse claims or demands. The Disbursement Agent shall be entitled to continue
so to refrain and refuse so to act until:
(i) the rights of the adverse claimants have been fully
adjudicated in the court assuming and having jurisdiction of the claimants and
the investments and amounts held pursuant to this Agreement; or
(ii) all differences shall have been adjusted by
agreement, and the Disbursement Agent shall have been notified thereof in
writing by all persons deemed by the Disbursement Agent, in its sole
discretion, to have an interest therein.
(b) In addition, the Disbursement Agent, in its sole
discretion, may file a suit in interpleader for the purpose of having the
respective rights of all claimants adjudicated, and may deposit with the court
all of the investments and amounts held pursuant to this Agreement. The Company
agrees to pay all costs and reasonable counsel fees incurred by the
Disbursement Agent in such action, said costs and fees to be included in the
judgment in any such action.
9.4 SEGREGATION OF FUNDS AND PROPERTY INTEREST. Monies and other
property received by the Disbursement Agent shall, until used or applied as
herein provided, be held for the purposes for which they were received, and
shall be segregated from other funds except to the extent required herein or by
law. To the extent that the Disbursement Agent also acts as securities
intermediary, (a) the Disbursement Agent shall note in its records that all
funds and other assets in the Company Accounts, have been pledged to the
Collateral Agent for the benefit of all or certain of the Secured Parties and
that the Disbursement Agent is holding such items for the Collateral Agent, (b)
the Disbursement Agent shall note in its records that all funds and other
assets in the Bank Proceeds Account have been pledged to the Collateral Agent
for the benefit of the Bank Lenders and (c) the Disbursement Agent shall note
in its records that all funds and other assets in the 2014 Notes Proceeds
Account have been pledged to the Collateral Agent for the benefit of the 2014
Noteholders. Accordingly, all such funds and assets shall not be within the
bankruptcy "estate" (as such term is used in 11 U.S.C. ss. 541) of the
Disbursement Agent. The Disbursement Agent shall not be under any liability for
interest on any monies received by it hereunder, except as otherwise specified
in this Agreement. The Disbursement Agent hereby expressly waives any right of
set-off or similar right it may have against or in relation to the Company
Accounts and any monies, Permitted Investments or other amounts on deposit
therein.
9.5 COMPENSATION AND REIMBURSEMENT OF THE DISBURSEMENT AGENT. The
Company covenants and agrees to pay to the Disbursement Agent from time to
time, and the Disbursement Agent shall be entitled to, the fees set forth in
that certain letter agreement between the Company and the Disbursement Agent,
and the Company will further pay or reimburse the Disbursement Agent upon its
request for all reasonable out-of-pocket expenses, disbursements and advances
incurred or made by the Disbursement Agent in accordance herewith. The
obligations of the Company under this Section 9.5 to compensate the
Disbursement Agent and to pay or reimburse the Disbursement Agent for
reasonable expenses, disbursements and advances shall constitute additional
Obligations (and shall be deemed permitted indebtedness under each Financing
Agreement) hereunder and shall survive the satisfaction and discharge of this
Agreement.
9.6 QUALIFICATION OF THE DISBURSEMENT AGENT. The Disbursement Agent
hereunder shall at all times be a corporation with offices in New York City,
New York which (a) is authorized to exercise corporation trust powers, (b) is
subject to supervision or examination by the applicable Governmental Authority,
(c) shall have a combined capital and surplus of at least Five Hundred Million
Dollars ($500,000,000), (d) shall have a long-term credit rating of not less
than A- or A3, respectively, by S&P or Moody's; and provided, that any such
bank with a long-term credit rating of A- or A3 shall not cease to be eligible
to act as Disbursement Agent upon a downward change in either such rating of no
more than one category or grade of such minimum rating, as the case may be; and
(e) with respect to any replacement of the Person acting as Disbursement Agent
as of the Closing Date, shall be acceptable to each of the Bank Agent and the
Company (so long as no Potential Event of Default or Event of Default then
exists) and the 2014 Notes Indenture Trustee acting pursuant to the
Intercreditor Agreement. In case at any time the Disbursement Agent shall cease
to be eligible in accordance with the provisions of this Section 9.6, the
Disbursement Agent shall resign immediately upon appointment of a successor
Disbursement Agent in accordance with Section 9.7.
9.7 RESIGNATION AND REMOVAL OF THE DISBURSEMENT AGENT. The Bank Agent
and the 2014 Notes Indenture Trustee, acting pursuant to the Intercreditor
Agreement, shall have the right should they reasonably determine that the
Disbursement Agent has breached or failed to perform its obligations hereunder
or has engaged in willful misconduct or gross negligence, upon the expiration
of thirty (30) days following delivery of written notice of substitution to the
Disbursement Agent and the Company, to cause the Disbursement Agent to be
relieved of its duties hereunder and to select a substitute disbursement agent
to serve hereunder. The Disbursement Agent may resign at any time upon sixty
(60) days' written notice to all parties hereto. Such resignation shall take
effect upon the earlier of receipt by the Disbursement Agent of an instrument
of acceptance executed by a successor disbursement agent meeting the
qualifications set forth in Section 9.6 and consented to by the other parties
hereto or sixty (60) days after the giving of such notice. Upon selection of a
substitute disbursement agent, the Funding Agent and the Company and the
substitute disbursement agent shall enter into an agreement substantially
identical to this Agreement and, upon appointment of a substitute Disbursement
Agent, the Disbursement Agent shall promptly transfer to the substitute
Disbursement Agent originals of all books, records, and other documents in the
Disbursement Agent's possession relating to this Agreement and the transactions
contemplated hereby.
9.8 MERGER OR CONSOLIDATION OF THE DISBURSEMENT AGENT. Any corporation
into which the Disbursement Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Disbursement Agent shall be a party, or any
corporation succeeding to the corporate trust business of the Disbursement
Agent, shall, if eligible hereunder, be the successor of the Disbursement Agent
hereunder; provided, that such corporation shall be eligible under the
provisions of Section 9.6 without the execution or filing of any paper with any
party hereto or any further act on the part of any of the parties hereto except
where an instrument of transfer or assignment is required by law to effect such
succession, anything herein to the contrary notwithstanding.
9.9 STATEMENTS; INFORMATION. The Disbursement Agent shall provide to
the Funding Agents and the Company a monthly statement of all deposits to, and
disbursements from, each account maintained with it and interest and earnings
credited to each account established and maintained hereunder by the
Disbursement Agent.
9.10 LIMITATION OF LIABILITY. The Disbursement Agent's responsibility
and liability under this Agreement shall be limited as follows: (a) the
Disbursement Agent does not represent, warrant or guaranty to the Funding
Agents or the Lenders the performance by the Company, the Primary Contractors,
the Construction Guarantor, the Phase I Golf Course Contractor, the
Construction Consultant, the Project Architects, the Phase I Golf Course
Designer, the Phase I Aqua Theater and Showroom Designer, the Phase II Major
Architects, the Phase II Major Contractors, or any other Contractor or
Subcontractor of their respective obligations under the Operative Documents and
shall have no duty to inquire of any Person whether a Potential Event of
Default or an Event of Default has occurred and is continuing; (b) the
Disbursement Agent shall have no responsibility to the Company, the Funding
Agents or the Lenders as a consequence of performance by the Disbursement Agent
hereunder except for any bad faith, fraud, gross negligence or willful
misconduct of the Disbursement Agent as finally judicially determined by a
court of competent jurisdiction; (c) the Company shall remain solely
responsible for all aspects of its business and conduct in connection with the
Projects, including but not limited to the quality and suitability of the Plans
and Specifications, the supervision of the work of construction, the
qualifications, financial condition and performance of all architects,
engineers, contractors, subcontractors, suppliers, consultants and property
managers, the accuracy of all applications for payment, and the proper
application of all disbursements; and (d) the Disbursement Agent is not
obligated to supervise, inspect or inform the Company of any aspect of the
development, construction or operation of the Projects or any other matter
referred to above. Each Funding Agent, each 2014 Noteholder, and each Bank
Lender (by its execution and delivery of the Bank Credit Agreement or
acceptance of an assignment thereof in accordance with the terms of the Bank
Credit Agreement) has made its own independent investigation of the financial
condition and affairs of the Loan Parties in connection with the making of the
extensions of credit contemplated by the Financing Agreements and has made and
shall continue to make its own appraisal of the creditworthiness of the Loan
Parties. Except as specifically set forth herein, the Disbursement Agent shall
not have any duty or responsibility, either initially or on a continuing basis,
to make any such investigation or any such appraisal on behalf of the Funding
Agents or Lenders or to provide any Funding Agent or Lender with any credit or
other information with respect thereto. The Disbursement Agent shall not have,
by reason of this Agreement, a fiduciary relationship in respect of any Funding
Agent or Lender; and nothing in this Agreement, expressed or implied, is
intended to or shall be so construed as to impose upon the Disbursement Agent
any obligations in respect of this Agreement except as expressly set forth
herein or therein. The Disbursement Agent shall have no duties or obligations
hereunder except as expressly set forth herein, shall be responsible only for
the performance of such duties and obligations and shall not be required to
take any action otherwise than in accordance with the terms hereof. In
performing its functions and duties under this Agreement, the Disbursement
Agent does not assume and shall not be deemed to have assumed any obligation
towards or relationship of agency or trust with or for the Company or any of
its Affiliates. Neither the Disbursement Agent nor any of its officers,
directors, employees or agents shall be in any manner liable or responsible for
any loss or damage arising by reason of any act or omission to act by it or
them hereunder or in connection with any of the transactions contemplated
hereby, including, but not limited to, any loss that may occur by reason of
forgery, false representations, the exercise of its discretion, or any other
reason, except as a result of their bad faith, fraud, gross negligence or
willful misconduct as finally judicially determined by a court of competent
jurisdiction.
ARTICLE 10.
- SAFEKEEPING OF ACCOUNTS
-------------------------
10.1 APPLICATION OF FUNDS IN COMPANY ACCOUNTS. Amounts deposited in
the Company Accounts shall be applied exclusively as provided in this Agreement
and the Disbursement Agent shall at all times act and direct the securities
intermediaries under the Collateral Account Agreements so as to implement the
application of funds provisions and procedures herein set forth. The
Disbursement Agent is hereby authorized to direct the Securities Intermediary
to reduce to cash any Permitted Investment (without regard to maturity) in any
account in order to make any application required hereunder. No amount held in
any Account maintained hereunder shall be disbursed except in accordance with
the provisions hereof or as required by law.
10.2 EVENT OF DEFAULT. Notwithstanding anything to the contrary in
this Agreement, (a) upon the occurrence and during the continuance of a
Potential Event of Default or an Event of Default of which it has actual
knowledge, the Disbursement Agent shall not in any such event deposit or cause
to be deposited any amounts into the Disbursement Account, the Cash Management
Account, the Bank Proceeds Account, the Company's Payment Account or release or
cause to be released any amounts to the Company unless instructed to the
contrary by (i) in the case of the 2014 Notes Proceeds Account, the 2014 Notes
Indenture Trustee and (ii) in the case of all other Company Accounts, the Bank
Agent; and (b) (i) upon the request of the Collateral Agent after the
occurrence of an Event of Default, (ii) immediately upon obtaining knowledge of
the dissolution or liquidation or Bankruptcy of the Completion Guarantor, or
(iii) upon the request of the Collateral Agent upon a breach by the Completion
Guarantor of any of its covenants and agreements under the Completion Guaranty,
the Disbursement Agent shall withdraw all funds then on deposit in the
Completion Guaranty Deposit Account and deposit the same in the Company's Funds
Account. During the continuance of an Event of Default, the Disbursement Agent
is hereby irrevocably authorized by the Company to apply, or cause to be
applied, amounts in any Company Account to the payment of interest, principal,
fees, costs, charges or other amounts or obligations due or payable to the
Secured Parties when instructed to do so (i) by the 2014 Notes Indenture
Trustee, with respect to the 2014 Notes Proceeds Account and (ii) by the Bank
Agent with respect to all other Company Accounts.
10.3 LIENS. The Disbursement Agent shall take such actions within its
control that it customarily takes in the conduct of its business to protect the
Company Accounts, and all cash, funds, Permitted Investments from time to time
deposited therein, as well as any proceeds or income therefrom (collectively,
the "Company Accounts Collateral") free and clear of all liens, security
interests, safekeeping or other charges, demands and claims of any nature
whatsoever now or hereafter existing, in favor of anyone other than the Secured
Parties (or the Disbursement Agent, as agent for the Secured Parties)
(collectively, the "Third Party Claims"); it being understood, however, that
the foregoing shall in no way be deemed to be a guaranty or other assurance by
the Disbursement Agent that Third Party Claims will not arise.
10.4 PERFECTION. The Disbursement Agent shall take any steps from time
to time requested by the Collateral Agent to confirm or cause the securities
intermediaries under the Collateral Account Agreements to confirm and maintain
the priority of their respective security interests in the Company Accounts
Collateral.
ARTICLE 11.
- MISCELLANEOUS
---------------
11.1 ADDRESSES. Any communications between the parties hereto or
notices provided herein to be given may be given to the following addresses:
If to the Company: Wynn Las Vegas, LLC
3131 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attn: President
Telephone No.: (702) 770-7000
Facsimile No.: (702) 770-1100
With a copy to: Wynn Las Vegas, LLC
3131 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attn: General Counsel
Telephone No.: (702) 770-2111
Facsimile No.: (702) 770-1520
And a copy to: Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071-3144
Attn: Jerome L. Coben, Esq.
Telephone No.: (213) 687-5000
Facsimile No.: (213) 621-5010
If to the Bank Agent: Deutsche Bank Trust Company Americas
c/o Deutsche Bank Securities Inc.
200 Crescent Court, Suite 550
Dallas, TX 75201
Attn: Gerard Dupont
Telephone No.: (214) 740-7913
Facsimile No.: (214) 740-7910
If to the 2014 Notes
Indenture Trustee: U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107
Attn: Corporate Trust Services
Telephone No.: (651) 495-3909
Facsimile No.: (651) 495-8097
If to the Disbursement Agent: Deutsche Bank Trust Company Americas
60 Wall Street, 11th Floor
New York, New York 10005
Attn: Amy Sinensky
Telephone No.: (212) 250-4063
Facsimile No.: (212) 797-4885
All notices or other communications required or permitted to be given hereunder
shall be in writing and shall be considered as properly given (a) if delivered
in person, (b) if sent by reputable overnight delivery service, (c) in the
event overnight delivery services are not readily available, if mailed by first
class mail, postage prepaid, registered or certified with return receipt
requested or (d) if sent by prepaid telex, or by telecopy with correct answer
back received. Notice so given shall be effective upon receipt by the
addressee, except that communication or notice so transmitted by telecopy or
other direct written electronic means shall be deemed to have been validly and
effectively given on the day (if a Banking Day and, if not, on the next
following Banking Day) on which it is validly transmitted if transmitted before
4 p.m., recipient's time, and if transmitted after that time, on the next
following Banking Day; provided, however, that if any notice is tendered to an
addressee and the delivery thereof is refused by such addressee, such notice
shall be effective upon such tender. Any party shall have the right to change
its address for notice hereunder to any other location by giving of no less
than ten (10) days' notice to the other parties in the manner set forth
hereinabove.
11.2 DELAY AND WAIVER. No delay or omission to exercise any right,
power or remedy accruing upon the occurrence of any Potential Event of Default
or Event of Default or any other breach or default of the Company under this
Agreement shall impair any such right, power or remedy of the Funding Agents,
the Lenders, the Disbursement Agent or any other Secured Party nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or in any similar breach or default thereafter occurring, nor shall
any waiver of any single Potential Event of Default, Event of Default or other
breach or default be deemed a waiver of any other Potential Event of Default,
Event of Default or other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any of the Funding Agents, the Lenders or the Disbursement Agent,
of any Potential Event of Default, Event of Default or other breach or default
under this Agreement, or any waiver on the part of any of the Funding Agents,
the Lenders or the Disbursement Agent, of any provision or condition of this
Agreement, must be in writing and shall be effective only to the extent in such
writing specifically set forth. Neither any waiver, permit, consent or approval
of any kind or character on the part of any of the Funding Agents, the Lenders
or the Disbursement Agent of any Potential Event of Default, Event of Default
or other breach or default under this Agreement nor any waiver on the part of
any of the Funding Agents, the Lenders or the Disbursement Agent of any
provision or condition of this Agreement shall be effective or binding with
respect to any other Operative Document. All remedies under this Agreement or
by law or otherwise afforded to any of the Funding Agents, the Lenders or the
Disbursement Agent shall be cumulative and not alternative.
11.3 ENTIRE AGREEMENT. This Agreement and any agreement, document or
instrument attached hereto or referred to herein integrate all the terms and
conditions mentioned herein or incidental hereto and supersede all oral
negotiations and prior writings in respect to the subject matter hereof, all of
which negotiations and writings are deemed void and of no force and effect.
11.4 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of New York of the United States of America and shall for all
purposes be governed by and construed in accordance with the laws of such state
without regard to the conflict of law rules thereof other than Section 5-1401
of the New York General Obligations Law.
11.5 SEVERABILITY. In case any one or more of the provisions contained
in this Agreement should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby, and the parties hereto shall enter
into good faith negotiations to replace the invalid, illegal or unenforceable
provision.
11.6 HEADINGS. Paragraph headings have been inserted in this Agreement
as a matter of convenience for reference only and it is agreed that such
paragraph headings are not a part of this Agreement and shall not be used in
the interpretation of any provision of this Agreement.
11.7 LIMITATION ON LIABILITY. NO CLAIM SHALL BE MADE BY THE COMPANY OR
ANY OF ITS AFFILIATES AGAINST THE FUNDING AGENTS, THE LENDERS, THE DISBURSEMENT
AGENT OR ANY OTHER SECURED PARTY OR ANY OF THEIR RESPECTIVE AFFILIATES,
DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES (WHETHER OR NOT THE CLAIM THEREFOR IS BASED
ON CONTRACT, TORT OR DUTY IMPOSED BY LAW), IN CONNECTION WITH, ARISING OUT OF
OR IN ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE
OTHER OPERATIVE DOCUMENTS OR ANY ACT OR OMISSION OR EVENT OCCURRING IN
CONNECTION THEREWITH; AND THE COMPANY HEREBY WAIVES, RELEASES AND AGREES NOT TO
SUE UPON ANY SUCH CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT ACCRUED AND
WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
11.8 WAIVER OF JURY TRIAL. ALL PARTIES TO THIS AGREEMENT HEREBY
KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER FINANCING AGREEMENTS,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN), OR ACTIONS OF ANY PARTY TO THIS AGREEMENT. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE FUNDING AGENTS, DISBURSEMENT AGENT AND EACH OF THE
OTHER LENDERS AND SECURED PARTIES TO ENTER INTO THIS AGREEMENT.
11.9 CONSENT TO JURISDICTION. Any legal action or proceeding by or
against the Company or with respect to or arising out of this Agreement may be
brought in or removed to the courts of the State of New York, in and for the
County of New York, or of the United States of America for the Southern
District of New York. By execution and delivery of this Agreement, the Company,
accepts, for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts for legal proceedings
arising out of or in connection with this Agreement and irrevocably consents to
the appointment of the CT Corporation System, whose current address is 111
Eighth Avenue, New York, NY 10011, as its agent to receive service of process
in New York, New York. Nothing herein shall affect the right to serve process
in any other manner permitted by law or any right to bring legal action or
proceedings in any other competent jurisdiction, including judicial or
non-judicial foreclosure of real property interests which are part of the
Project Security. The Company further agrees that the aforesaid courts of the
State of New York and of the United States of America for the Southern District
of New York shall have exclusive jurisdiction with respect to any claim or
counterclaim of the Company based upon the assertion that the rate of interest
charged by or under this Agreement, or under the other Financing Agreements is
usurious. The Company hereby waives any right to stay or dismiss any action or
proceeding under or in connection with any or all of the Projects, this
Agreement or any other Operative Document brought before the foregoing courts
on the basis of forum non-conveniens.
11.10 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Notwithstanding the foregoing, the Company
may not assign or otherwise transfer any of its rights under this Agreement.
11.11 REINSTATEMENT. This Agreement shall continue to be effective or
be reinstated, as the case may be, if at any time payment and performance of
the Company's obligations hereunder or under the other Financing Agreements, or
any part thereof, is, pursuant to applicable law, rescinded or reduced in
amount, or must otherwise be restored or returned by the Secured Parties. In
the event that any payment or any part thereof is so rescinded, reduced,
restored or returned, such obligations shall be reinstated and deemed reduced
only by such amount paid and not so rescinded, reduced, restored or returned.
11.12 NO PARTNERSHIP; ETC. The Secured Parties and the Company intend
that the relationship between them shall be solely that of creditor and debtor.
Nothing contained in this Agreement or in any of the other Financing Agreements
shall be deemed or construed to create a partnership, tenancy-in-common, joint
tenancy, joint venture or co-ownership by or between the Secured Parties and
the Company or any other Person. The Secured Parties shall not be in any way
responsible or liable for the debts, losses, obligations or duties of the
Company or any other Person with respect to the Projects or otherwise. All
obligations to pay real property or other taxes, assessments, insurance
premiums, and all other fees and charges arising from the ownership, operation
or occupancy of the Projects and to perform all obligations under the
agreements and contracts relating to the Projects shall be the sole
responsibility of the Company.
11.13 COSTS AND EXPENSES.
11.13.1 Reimbursement of Costs. The Company shall (subject to the
limitations set forth herein and, with respect to the Bank Agent, the
Disbursement Agent, the Collateral Agent and the Nevada Collateral Agent, to
the express provisions of the Financing Agreements or any other fee letters or
engagement letters to which such Funding Agent, the Disbursement Agent, the
Collateral Agent or the Nevada Collateral Agent is a party) pay the reasonable
legal, engineering, other professional and all other fees and costs of the
Funding Agents, the Disbursement Agent, the Collateral Agent and the Nevada
Collateral Agent and their consultants and advisors, the reasonable travel
expenses and other out-of-pocket costs incurred by each of them in connection
with preparation, negotiation, execution and delivery, and where appropriate,
registration, of the Operative Documents (and all matters incidental thereto),
the administration of the transactions contemplated by the Operating Documents
(including, without limitation the administration of this Agreement, the other
Operative Documents and the Security Documents) and the preservation or
enforcement of any of their respective rights or in connection with any
amendments, waivers or consents required under this Agreement. The Funding
Agents, the Disbursement Agent, the Collateral Agent and the Nevada Collateral
Agent will reasonably consult with the Company on a regular basis with respect
to on-going costs of such Persons' consultants and advisors and unless a
Potential Event of Default or Event of Default shall have occurred and be
continuing, if requested by the Company, the Funding Agents, the Disbursement
Agent, Collateral Agent and the Nevada Collateral Agent may agree with the
Company that such costs be subject to a reasonable fee cap.
11.13.2 Foreclosure. The provisions of this Section 11.13 shall
survive foreclosure of the Security Documents and satisfaction or discharge of
the Company's obligations hereunder, and shall be in addition to any other
rights and remedies of any the Funding Agents, the Disbursement Agent,
Collateral Agent and the Nevada Collateral Agent.
11.13.3 Payment Due Dates. Any amounts payable by the Company
pursuant to this Section 11.13 shall be payable thirty (30) Banking Days after
the Company receives an invoice for such amounts from the Funding Agents, the
Disbursement Agent, Collateral Agent or the Nevada Collateral Agent, as the
case may be.
11.14 COUNTERPARTS. This Agreement may be executed in one or
more duplicate counterparts (including by facsimile) and when signed by all of
the parties listed below shall constitute a single binding agreement.
11.15 TERMINATION; REMOVAL OF 2014 NOTES INDENTURE TRUSTEE AND
2014 NOTEHOLDERS AS BENEFICIARIES. This Agreement shall, subject to Section
11.11 and to the next sentence, terminate and be of no further force or effect
on the Last Project Final Completion Date upon completion of the transfer and
release of funds contemplated by Section 2.9.3 (other than amounts on deposit
in the Project Liquidity Reserve Account that are not yet eligible for release
to the Company pursuant to Section 2.2.8). The provisions of Article 9 and
Section 11.13 shall survive the termination of this Agreement. The provisions
of Section 2.2.8 with respect to the Project Liquidity Reserve Account shall
survive until all amounts on deposit therein are released to the Company
pursuant to Section 2.2.8. This Agreement shall cease to apply to or otherwise
govern the Phase I Project from and after the Phase I Final Completion Date.
11.15.1 The 2014 Notes Indenture Trustee shall cease to be a
party to this Agreement on the date that the 2014 Notes Proceeds Account is
Exhausted. On such date, (i) the 2014 Notes Indenture Trustee shall have no
further rights or obligations hereunder, (ii) neither the 2014 Notes Indenture
Trustee nor the 2014 Noteholders shall be entitled to any of the benefits of
this Agreement (other than Section 11.13), (iii) this Agreement shall
automatically be amended to delete all references to the 2014 Notes Indenture
Trustee and the 2014 Noteholders to reflect that the 2014 Notes Indenture
Trustee is no longer a party to this Agreement and to further reflect that
neither the 2014 Notes Indenture Trustee nor the 2014 Noteholders shall be
entitled to any of the benefits of this Agreement (except for the indemnities
set forth in Section 11.13) and (iv) this Agreement shall automatically be
amended to delete each reference to "Funding Agent" and replace each such
reference with a reference to "Bank Agent".
11.16 AMENDMENTS
The Bank Agent (acting under the Bank Credit Agreement) may
amend this Agreement without the 2014 Notes Indenture Trustee's consent;
provided, however that the Bank Agent shall not be entitled to amend the
funding allocation between the 2014 Notes Proceeds Account and the Bank Credit
Facility set forth in Section 2.4.1 (clause second). Except as otherwise
provided in the preceding sentence, any amendment to this Agreement must be in
writing and must be signed by each party hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed by their officers thereunto duly authorized as of the day and
year first above written.
COMPANY:
- -------
WYNN LAS VEGAS, LLC,
a Nevada limited liability company
By: Wynn Resorts Holdings, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited,
a Nevada corporation,
its sole member
By: /s/ Ronald J. Kramer
---------------------------
Name: Ronald J. Kramer
Title: President
BANK AGENT:
- ----------
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ Steven P. Lapham
---------------------------
Name: Steven P. Lapham
Title: Managing Director
By: /s/ Brenda Casey
---------------------------
Name: Brenda Casey
Title: Vice President
2014 NOTES INDENTURE TRUSTEE:
- ----------------------------
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Lori Anne Rosenberg
---------------------------
Name: Lori Anne Rosenberg
Title: Vice President
DISBURSEMENT AGENT:
- ------------------
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ Steven P. Lapham
---------------------------
Name: Steven P. Lapham
Title: Managing Director
By: /s/ Brenda Casey
---------------------------
Name: Brenda Casey
Title: Vice President
EXHIBIT A to the
Disbursement Agreement
DEFINITIONS
-----------
"Additional Construction Agreements" means any other
documents or agreements entered into after the Closing Date relating to the
development, design, engineering, installation or construction of a Project
(including, without limitation, any Contracts with respect to the Phase II
Project).
"Advance" means (a) with respect to the Bank Credit
Facility, an advance of Loans deposited in the Disbursement Account or a
transfer of funds from the Bank Proceeds Account to the Disbursement Account
or the issuance of a Letter of Credit thereunder, (b) with respect to the 2014
Notes, a transfer of funds from the 2014 Notes Proceeds Account to the
Disbursement Account, (c) with respect to amounts on deposit in the Company's
Funds Account, a release of funds from the Company's Funds Account and (d) a
transfer of funds from the Completion Guaranty Deposit Account or the Project
Liquidity Reserve Account to the Disbursement Account pursuant to Section
5.5.3.
"Advance Confirmation Notice" has the meaning given in
Section 2.3.2(a)(i) of the Disbursement Agreement.
"Advance Date" means the date on which an Advance is
required to be deposited in the Disbursement Account pursuant to Section
2.3.3(a)(i) of the Disbursement Agreement.
"Advance Request" means an advance request and certificate
in the form of Exhibit C-1 to the Disbursement Agreement.
"Affiliate" as applied to any Person, any other Person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled
by," and "under common control with") as applied to any Person means the
power, directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors (or
persons performing similar functions) of such Person or (b) direct or cause
the direction of the management and policies of such Person, whether by
contract or otherwise.
"Affiliate Real Estate Agreements" means, collectively, the
Golf Course Lease, the Water Access Easement and the Shuttle Easement.
"Anticipated Cost Reports" means, collectively, the Phase I
Anticipated Cost Report and, from and after the Phase II Approval Date, the
Phase II Anticipated Cost Report.
"Anticipated Earnings" means, at any time, with respect to
the 2014 Notes Proceeds Account, the Company's Funds Account, the Completion
Guaranty Deposit Account, the Bank Proceeds Account and the Project Liquidity
Reserve Account, respectively, the amount of investment income which the
Company reasonably determines with the concurrence of the Disbursement Agent
(acting in its sole discretion exercised in good faith) will accrue on the
funds in each such Company Account through the anticipated Completion Date of
the last Project, taking into account the current and future anticipated rates
of return on Permitted Investments in such Company Accounts and the
anticipated times and amounts of draws from each such Company Account for the
payment of Project Costs.
"Arrangers" shall have the meaning given in the Bank Credit
Agreement.
"Availability Period" shall mean the period commencing on
the Closing Date and ending on the earlier to occur of (a) the Last Project
Final Completion Date and (b) (i) with respect to Project Costs allocated to
the Phase I Project in the Phase I Project Budget, the Outside Phase I
Completion Deadline and (ii) with respect to Project Costs allocated to Phase
II Project in the Phase II Project Budget, the Phase II Revolving Commitment
Sunset Date (if the Phase II Approval Date has not previously occurred), and
otherwise, the Outside Phase II Completion Deadline.
"Available Funds" means, from time to time, the sum of (i)
the unutilized Commitments (excluding $550,000,000 prior to the Phase II
Approval Date), plus (ii) the aggregate then undrawn and unexpired amount of
the standby Letters of Credit then outstanding under the Bank Credit Facility
to the extent issued in respect of Project Costs, plus (iii) the aggregate of
the amounts on deposit in the Company's Funds Account (excluding funds
transferred from the Completion Guaranty Deposit Account to the Company's
Funds Account pursuant to Section 5.5.1 of the Disbursement Agreement to the
extent such funds would not count as Available Funds under clause (iv) hereof
had such funds remained on deposit in the Completion Guaranty Deposit Account)
and the 2014 Notes Proceeds Account and all Anticipated Earnings thereon, plus
(iv) the aggregate amount which the Company is entitled to withdraw from the
Completion Guaranty Deposit Account and the Project Liquidity Reserve Account
pursuant to Section 5.5.3(a) of the Disbursement Agreement but which it has
not withdrawn from such Company Accounts, plus (v) all Anticipated Earnings on
the Completion Guaranty Deposit Account and the Project Liquidity Reserve
Account, plus (vi) the aggregate of the amounts on deposit in the Bank
Proceeds Account and the Cash Management Account (after giving effect to any
transfers of earnings thereon to the Company's Funds Account as contemplated
in the Disbursement Agreement), plus (vii) the lesser of (A) the aggregate
amount of Project Costs with respect to the Phase I Project or the Phase II
Project, as the case may be, which the Construction Guarantor and/or the
applicable Primary Contractor has agreed or confirmed in writing, to the
reasonable satisfaction of the Disbursement Agent, that it is responsible for
paying (on a timely basis relative to the Project's cash needs) from its own
funds but which it has not yet paid, but only to the extent that such funds
have been deposited in an account which is subject to a perfected first
priority security interest in favor of the Disbursement Agent on behalf of the
Secured Parties and (B) the aggregate amount of Remaining Costs for the "GMP
Contract" Line Item Category allocated to such Project in the applicable
Project Budget plus, (viii) from and after the Phase II Approval Date, the
Phase I Excess Cash Flow Credit Amount.
"Bank Agent" means Deutsche Bank Trust Company Americas in
its capacity as Administrative Agent under the Bank Credit Agreement and its
successors in such capacity.
"Bank Credit Agreement" means that certain Credit Agreement
dated as of December 14, 2004 among the Company, the Bank Agent, Deutsche Bank
Securities Inc., as lead arranger and joint book-running manager, Bank of
America, N.A., as syndication agent, Banc of America Securities LLC, as joint
book-running manager, Bear Stearns Corporate Lending, Inc., as joint
documentation agent, Bear, Stearns & Co. Inc., as arranger and joint
book-running manager, JPMorgan Chase Bank, N.A., as joint documentation agent,
J.P. Morgan Securities Inc., as arranger and joint book-running manager,
Societe Generale, as joint documentation, and SG Americas Securities, LLC, as
arranger and joint book-running manager and the Bank Lenders, as amended,
modified or supplemented from time to time, or any permitted refinancings
thereof.
"Bank Credit Facility" means, collectively, the term loan
credit facility and the revolving facility described in and made available
from time to time to the Company by the Bank Lenders under the Bank Credit
Agreement.
"Bank Environmental Indemnity Agreements" means those
certain Indemnity Agreements dated as of December 14, 2004 and made by each of
the Company, Wynn Golf and Wynn Sunrise for the benefit of the Bank Agent and
certain other indemnified parties.
"Bank Guarantee" means that certain Guarantee dated as of
December 14, 2004 executed by the Company and each other Loan Party, in favor
of the Collateral Agent.
"Bank Lenders" has the meaning given to the term "Lenders"
in the Bank Credit Agreement.
"Bank Proceeds Account" means the account referenced in
Section 2.2.5 of the Disbursement Agreement and established pursuant to the
Company Disbursement Collateral Account Agreement.
"Bank Revolving Facility" means the revolving loan credit
facility described in and made available from time to time to the Company by
the Bank Lenders under the Bank Credit Agreement.
"Banking Day" means (a) for all purposes other than as
covered by clause (b) below, any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the State of New York or Nevada or
is a day on which banking institutions located in either such state are
authorized or required by law or other governmental action to close, and (b)
with respect to all notices, determinations, fundings and payments in
connection with the "Eurodollar Rate" (as defined in the Bank Credit
Agreement) or any "Eurodollar Loans" (as defined in the Bank Credit
Agreement"), any day that is a Banking Day described in clause (a) above and
that is also a day for trading by and between banks in Dollar deposits in the
London, England interbank market.
"Bankruptcy" means, with respect to any Person, that (i) a
court having jurisdiction over any Project Security shall have entered a
decree or order for relief in respect of such Person in an involuntary case
under the Bankruptcy Code or under any other applicable bankruptcy, insolvency
or similar law now or hereafter in effect, which decree or order has not been
stayed; or any other similar relief shall have been granted under any
applicable federal or state law; or (ii) an involuntary case shall be
commenced against such Person, under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect;
or a decree or order of a court having jurisdiction over any Project Security
for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over such Person, or over all
or a substantial part of its property, shall have been entered; or there shall
have occurred the involuntary appointment of an interim receiver, trustee or
other custodian of such Person, for all or a substantial part of its property;
or a warrant of attachment, execution or similar process shall have been
issued against any substantial part of the property of such Person, and any
such event described in this clause (ii) shall continue for 60 days unless
dismissed, bonded or discharged; or (iii) such Person shall have an order for
relief entered with respect to it or shall commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect or shall consent to the entry of an
order for relief in an involuntary case, or to the conversion of an
involuntary case to a voluntary case, under any such law, or shall consent to
the appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; or such Person shall
make any assignment for the benefit of creditors, or shall fail generally, or
shall admit in writing its inability, to pay its debts as such debts become
due and payable or if the fair market value of its assets does not exceed its
aggregate liabilities; or (iv) such Person shall, or the board of directors,
manager or managing member of such Person (or any committee thereof) shall,
adopt any resolution or otherwise authorize any action to approve any of the
actions referred to in clause (iii) above.
"Bankruptcy Code" means Title 11 of the United States Code
entitled "Bankruptcy," as now and hereafter in effect, or any successor
statute thereto.
"Building Department" means the Clark County Building
Department.
"Buy-Sell Agreement" means that certain Buy-Sell Agreement
dated as of June 13, 2002 among Stephen A. Wynn, an individual, Kazuo Okada,
an individual, Aruze USA, Inc., a Nevada corporation, and Aruze Corp., a
Japanese public corporation, as supplemented by that certain Agreement, dated
as of June 13, 2002, between Stephen A. Wynn, an individual, and Wynn Resorts,
Limited, a Nevada corporation.
"Cash Management Account" means the account referenced in
Section 2.2.4 of the Disbursement Agreement and established pursuant to the
Local Company Collateral Account Agreement.
"Capital Corp." means Wynn Las Vegas Capital Corp., a Nevada
corporation.
"Closing Date" means the first date on which each of the
conditions precedent listed in Section 3.1 of the Disbursement Agreement have
been satisfied or waived.
"Closing Date Outstanding Releases" has the meaning given in
Section 3.1.36 of the Disbursement Agreement.
"Closing Transactions" means all transactions contemplated
to occur on the Closing Date pursuant to the Offering Memorandum, dated as of
November 22, 2004, relating to the offering by the Company and Wynn Las Vegas
Capital Corp. of the 2014 Notes, including the "Refinancing Transactions" as
such term is defined in the Bank Credit Agreement.
"Closing Financing Agreements" has the meaning given in
Section 3.1.1 of the Disbursement Agreement.
"Collateral Account Agreements" means, collectively, the
Company Collateral Account Agreements, the Completion Guaranty Collateral
Account Agreement and any other collateral account agreement entered into on
or after the Closing Date granting any one or more of the Secured Parties a
security interest in any account.
"Collateral Agent" means Deutsche Bank Trust Company
Americas, in its capacity as collateral agent under the Intercreditor
Agreement and its successors in such capacity.
"Collateral Agency Agreement" means that certain Collateral
Agency Agreement dated as of December 14, 2004 among the Bank Agent, the 2014
Notes Indenture Trustee and the Nevada Collateral Agent.
"Commitment" means the aggregate principal amount of all
Loans to the Company which may be made under the Bank Credit Facility for the
purpose of financing Project Costs.
"Commitment Letter" means that certain Commitment Letter
dated November 15, 2004, among Wynn Resorts, Limited, the Company, Deutsche
Bank Securities, Inc., Bank of America Securities LLC, Bank of America, N.A.,
Bear Sterns Corporate Lending, Inc., Bear, Sterns & Co. Inc., JPMorgan Chase
Bank, J.P. Morgan Securities Inc., Societe Generale, SG Americas Securities,
LLC and those certain initial agents and arrangers party thereto.
"Company" means Wynn Las Vegas, LLC, a Nevada limited
liability company.
"Company Accounts" means the Company's Funds Account, the
2014 Notes Proceeds Account, the Disbursement Account, the Cash Management
Account, the Company's Payment Account, the Bank Proceeds Account, the
Completion Guaranty Deposit Account, the Project Liquidity Reserve Account and
any sub-accounts thereof or any successor accounts or sub-accounts established
pursuant to the Collateral Account Agreements.
"Company Accounts Collateral" has the meaning given in
Section 10.3 of the Disbursement Agreement.
"Company Collateral Account Agreements" means, collectively,
the Company Disbursement Collateral Account Agreement and the Local Company
Collateral Account Agreements.
"Company Disbursement Collateral Account Agreement" means
that certain Disbursement Collateral Account Agreement dated as of December
14, 2004 among the Company, the Collateral Agent and the Securities
Intermediary.
"Company's Closing Certificate" means a Closing Certificate
in the form of Exhibit B-1 to the Disbursement Agreement.
"Company's Funds Account" means the account referenced in
Section 2.2.1 of the Disbursement Agreement and established pursuant to the
Company Disbursement Collateral Account Agreement.
"Company's Payment Account" means the account referenced in
Section 2.2.6 of the Disbursement Agreement and established pursuant to the
Local Company Collateral Account Agreement.
"Company's Phase II Approval Date Certificate" means a
certificate substantially in the form of Exhibit R-1 to the Disbursement
Agreement.
"Completion" means that, for the applicable Project, each of
the following has occurred:
(a) the Opening Date for such Project shall have
occurred;
(b) all Contractors and Subcontractors have been paid
in full for all work performed with respect to such
Project (other than (A) Retainage Amounts and other
amounts that, as of the Completion Date for such
Project, are being withheld from the Contractors
and Subcontractors in accordance with the
provisions of the Project Documents, (B) amounts
being contested in accordance with the Financing
Agreements so long as adequate reserves have been
established through an allocation in the
Anticipated Cost Report for such Project and in
accordance with any requirements of such Financing
Agreements and (C) amounts payable in respect of
Project Punchlist Items for such Project to the
extent not covered by the foregoing clause (A));
(c) for Project Punchlist Items, a list of any
remaining Project Punchlist Items for such Project
(including the estimated cost of each such
remaining Project Punchlist Item) shall have been
delivered to the Construction Consultant and the
Disbursement Agent by the Company and approved by
the Construction Consultant as a reasonable final
punchlist (such approval not to be unreasonably
withheld);
(d) with respect to the Phase I Project, the Phase I
Primary Contractor, the Phase I Golf Course
Contractor, the Phase I Parking Structure
Contractor, the Phase I Architect, the Phase I Golf
Course Designer, and the Phase I Aqua Theater and
Showroom Designer, and, with respect to the Phase
II Project, the Phase II Major Contractors and the
Phase II Major Architects, each shall have
delivered its Completion Certificate certifying,
among other things, as to "substantial completion"
of the work under its respective Construction
Agreement with respect to such Project has occurred
and such certifications shall have been accepted by
the Company and the Construction Consultant in
accordance with Section 6.2.2 of the Disbursement
Agreement; and
(e) for each Contract and Subcontract for which a
Payment and Performance Bond is required pursuant
to Section 5.9 of the Disbursement Agreement and
for which the Company (or the
applicable Contractor) will release retainage as a
result of Completion of such Project being
achieved, the Company shall have delivered from the
surety under each such Payment and Performance Bond
(i) a "Consent of Surety to Reduction in or Partial
Release of Retainage" (AIA form G707A) if a partial
release of Retainage Amounts held under such
Contract or Subcontract will be made or (ii) a
"Consent of Surety to Final Payment" (AIA form
G707) if a release of all Retainage Amounts held
under such Contract or Subcontract will be made).
"Completion Certificates" means, collectively, with respect
to each Project, the Completion Certificates substantially in the form of
Exhibits T-1, T-2, T-3, T-4, T-5, T-6, T-7, T-8, T-9 and T-10 to the
Disbursement Agreement to be delivered by the Company, the Construction
Consultant, the Project Architects, the Primary Contractors, the Phase I Golf
Course Designer, the Phase I Aqua Theater and Showroom Designer, the Phase I
Golf Course Contractor, the Phase I Parking Structure Contractor, the Phase II
Major Architects and the Phase II Major Contractors, as the case may be,
relating to Completion of each Project.
"Completion Date" means the Phase I Completion Date or the
Phase II Completion Date, as the case may be.
"Completion Guarantor" means Wynn Completion Guarantor, LLC,
a Nevada limited liability company.
"Completion Guaranty" means that certain Completion Guaranty
dated as of December 14, 2004 executed by the Completion Guarantor in favor of
the Bank Agent and the 2014 Notes Indenture Trustee.
"Completion Guaranty Collateral Account Agreement" means
that certain Completion Guaranty Collateral Account Agreement dated as of
December 14, 2004 among the Completion Guarantor, the Collateral Agent and the
Securities Intermediary.
"Completion Guaranty Deposit Account" means the account
referenced in Section 2.2.7 of the Disbursement Agreement and established
pursuant to the Completion Guaranty Collateral Account Agreement.
"Completion Guaranty Release Certificate" means the
Completion Guaranty Release Certificates substantially in the form of Exhibits
R-6 and R-7 to the Disbursement Agreement to be delivered by the Company and
the Construction Consultant.
"Completion Guaranty Release Conditions" means that (a) the
Phase I Substantial Completion Date and the Phase I Completion Date shall have
occurred and either (i) the Phase II Completion Date (if the Phase II Approval
Date shall have occurred prior to the Phase II Revolving Commitment Sunset
Date) shall have occurred or (ii) the Phase II Revolving Commitment Sunset
Date (if the Phase II Approval Date shall have not occurred prior to the Phase
II Revolving Commitment Sunset Date) shall have occurred, (b) a Notice of
Completion has been posted with respect to each Project and recorded in the
Office of the County Recorder of Clark County, Nevada and the statutory period
for filing mechanics liens under Nevada law with respect to work performed
before filing such Notice of Completion has expired, (c) the Funding Agents
have received final 101.6 endorsements from the Title Insurer insuring the
priority of their respective Liens on the Project Security, (d) the Company
shall have delivered to the Disbursement Agent, the Bank Agent and the 2014
Notes Indenture Trustee its Completion Guaranty Release Certificate certifying
that (i) all Project Punchlist Items have been completed for each Project
other than Punchlist Items with an aggregate value (as reasonably determined
by the Construction Consultant) of not more than $17.5 million so long as 150%
of the Project Punchlist Completion Amount for such uncompleted Punchlist
Items shall have been reserved in the Company's Funds Account, the Bank
Proceeds Account and/or the Completion Guaranty Deposit Account and (ii) the
Company has settled with the Contractors all claims for payments and amounts
due under the Contracts and the Company has received a final lien release from
each Contractor and Subcontractor as required under the Disbursement
Agreement, each in the form of Exhibit H-3 of the Disbursement Agreement,
other than with respect to disputed claims (including claims subject to audit
before payment) not exceeding $15.0 million in the aggregate so long as an
amount equal to such disputed amounts shall have been reserved in the
Company's Funds Account, the Bank Proceeds Account and/or the Completion
Guaranty Deposit Account, (e) the Construction Consultant shall have delivered
its Completion Guaranty Release Certificate, and (f) the Company shall have
delivered from the surety under each Payment and Performance Bond required
pursuant to Section 5.9 of the Disbursement Agreement a "Consent of Surety to
Final Payment" (AIA form G707) other than with respect to Contracts and
Subcontracts which the Company is disputing amounts in accordance with clause
(d)(ii) above.
"Completion Guaranty Release Date" means the date on which
the Disbursement Agent countersigns the Company's Completion Guaranty Release
Certificate acknowledging that Completion Guaranty Release Conditions have
been satisfied.
"Consents" means consents to the collateral assignment by
the Company of Material Project Documents in substantially the form of Exhibit
P to the Disbursement Agreement (or as otherwise approved by the Majority of
the Arrangers (in the case of Section 3.4) or the Bank Agent (in the case of
Section 6.5), as applicable).
"Construction Agreements" means each Contract, each Payment
and Performance Bond and the Construction Guaranty and each other guarantee
related to any Contract.
"Construction Consultant" means Inspection & Valuation
International, Inc. or any other Person appointed from time to time in
accordance with Section 8.1 of the Disbursement Agreement, to serve as the
Construction Consultant under the Disbursement Agreement.
"Construction Consultant Engagement Agreement" means that
certain proposal letter dated as of December 8, 2004 by and among the
Construction Consultant, the Disbursement Agent, the Bank Agent and the 2014
Notes Indenture Trustee.
"Construction Consultant's Advance Certificate" means a
certificate in the form of Exhibit C-2 to the Distribution Agreement.
"Construction Consultant's Closing Certificate" means a
closing certificate in the form of Exhibit B-2 to the Disbursement Agreement.
"Construction Consultant's Report" means a report or an
updated report of the Construction Consultant delivered to the Disbursement
Agent, the Bank Agent and/or the Representatives of the Initial Purchasers
pursuant to Section 3.1.10 and Section 3.4.8 of the Disbursement Agreement and
stating, among other things, that (a) the Construction Consultant has reviewed
the Material Project Documents, the Plans and Specifications, and other
material information reasonably deemed necessary by the Construction
Consultant for the purpose of evaluating whether the applicable Project can be
constructed and completed in the manner contemplated by the Operative
Documents and (b) based on its review of such information, the Construction
Consultant is of the opinion that the Phase I Project or the Phase II Project,
as applicable, can be constructed in the manner contemplated by the Operative
Documents and, in particular, that each Project can be constructed and
completed in accordance with the Material Project Documents and the Plans and
Specifications within the parameters set by the Project Schedule and the
Project Budget for such Project.
"Construction Guarantor" means Austi, Inc., a Nevada
corporation.
"Construction Guaranty" means that certain Amended and
Restated Continuing Guaranty dated as of October 22, 2002, executed by the
Construction Guarantor in favor of the Company.
"Contractors" means any architects, consultants, designers,
contractors, Subcontractors, suppliers, laborers or any other Persons engaged
by any Loan Party in connection with the design, engineering, installation and
construction of the Projects (including the Project Architects, the Primary
Contractors, the Phase I Golf Course Contractor, the Phase I Parking Structure
Contractor, the Phase I Golf Course Designer, the Phase I Aqua Theater and
Showroom Designer, the Phase II Major Architects and the Phase II Major
Contractors).
"Contracts" means, collectively, the contracts entered into,
from time to time, between any Loan Party and any Contractor for performance
of services or sale of goods in connection with the design, engineering,
installation or construction of any Projects.
"Debt Service" means all principal payments, interest or
premium, if any, and other amounts payable or accrued from time to time under
the Bank Credit Agreement or the 2014 Notes.
"Deeds of Trust" means, collectively, the Wynn Las Vegas
Deed of Trust, the Wynn Sunrise Deed of Trust and the Wynn Golf Deed of Trust.
"De Minimis Scope Change(s)" means any Scope Change which
does not increase or decrease the amount of Project Costs for any particular
Project by more than $250,000; provided that, the aggregate absolute value of
all such De Minimis Scope Changes for any particular Project may not exceed
$10,000,000, in the aggregate.
"Development Agreements" means collectively, (a) that
certain Restrictive Covenant Running with the Land by and between Clark
County, Nevada and Sheraton Desert Inn Corporation, dated as of December 9,
1999, (b) that certain Dedication Agreement by and between Clark County,
Nevada and Hotel A LLC, a Nevada limited liability company, dated as of May
21, 2002 (c) that certain Road Improvement Agreement, by and between Clark
County, Nevada and Sheraton Desert Inn Corporation, dated as of December 21,
1999 and recorded February 4, 2000, in Book 20000204 as Document No. 00871, of
Official Records, (d) that certain Off-Site Improvement Agreement, by and
between Clark County, Nevada and Wynn Design & Development, LLC, dated as of
April 15, 2002 and recorded April 29, 2002, in Book 20020429 as Document No.
03371, of Official Records, (e) that certain Off-Site Improvements Agreement,
by and between Clark County, Nevada and Wynn Design & Development, LLC, dated
as of April 15, 2002 and recorded April 29, 2002, in Book 20020429 as Document
No. 03372, of Official Records, (f) that certain Cost Participation Agreement
for Pedestrian Bridges at Spring Mountain Road and Las Vegas Boulevard South,
by and between Clark County, Nevada and the Company, dated as of January 21,
2003 and recorded January 29, 2003, in Book 20030129 as Document No. 03174, of
Official Records, and (g) any other agreements relating to the construction of
the Projects entered into between the Company and a Governmental Authority.
"Disbursement Account" means the account referenced in
Section 2.2.3 of the Disbursement Agreement and established pursuant to the
Company Disbursement Collateral Account Agreement.
"Disbursement Agent" means Deutsche Bank Trust Company
Americas, in its capacity as the disbursement agent under the Disbursement
Agreement and its successors in such capacity.
"Disbursement Agreement" means that certain Master
Disbursement Agreement dated as of December 14, 2004 among the Company, the
Bank Agent, the 2014 Notes Indenture Trustee and the Disbursement Agent.
"Dollar" and "$" means dollars in lawful currency of the
United States of America.
"Entertainment Facility" means the Avenue Q showroom or
entertainment facility adjoining the Phase I Project on the Site.
"Event of Default" has the meaning given in Section 7.1 of
the Disbursement Agreement.
"Event of Force Majeure" means any event that causes a delay
in the construction of the Projects and is outside any Loan Party's reasonable
control but only to the extent (a) such event does not arise out of the
negligence or willful misconduct of any Loan Party and (b) such event
consists: of an Act of God (such as tornado, flood, hurricane, etc.); fires
and other casualties; strikes, lockouts or other labor disturbances (except to
the extent taking place at the Site only); riots, insurrections or civil
commotions; embargoes, shortages or unavailability of materials, supplies,
labor, equipment and systems that first arise after the Closing Date, but only
to the extent caused by another act, event or condition covered by this clause
(b); the requirements of law, statutes, regulations and other Legal
Requirements enacted after the Closing Date; orders or judgments; or any
similar types of events, provided that the Company has sought to mitigate the
impact of the delay.
"Event of Loss" means, with respect to any property or asset
(tangible or intangible, real or personal), any of the following: (i) any
loss, destruction or damage of such property or asset; (ii) any actual
condemnation, seizure or taking by exercise of the power of eminent domain or
otherwise of such property or asset, or confiscation of such property or asset
or the requisition of the use of such property or asset; or (iii) any
settlement in lieu of clause (ii) above.
"Exhausted" means, (a) with respect to the Bank Credit
Facility, the time at which the Commitment under such Facility has been
utilized, the Bank Proceeds Account, as the case may be, has no funds
remaining on deposit therein and no further Advances are available thereunder
for the payment of Project Costs, (b) with respect to the 2014 Notes, the time
at which no funds remain in the 2014 Notes Proceeds Account and (c) with
respect to the Company's Funds Account, the Completion Guaranty Deposit
Account or the Project Liquidity Reserve Account, the time at which no funds
remain on deposit therein.
"Facility" or "Facilities" means, as the context may
require, any or all of the Bank Credit Facility and the 2014 Notes Proceeds.
"Facility Agreements" means, collectively, the Bank Credit
Agreement and the 2014 Notes Indenture.
"Fairway Villas" means the eighteen additional luxury suites
fairway villas to be built as part of the Phase I Project on the portion of
the Phase I Site referred to as "Area 7" under the Phase I Primary
Construction Contract.
"Final Completion" means that, with respect to each Project:
(a) the Completion Date for such Project shall have occurred, (b) such Project
shall have received a permanent certificate of occupancy from the Building
Department (and copies of such certificate shall have been delivered to the
Disbursement Agent, the Bank Agent, and the Construction Consultant), (c) a
Notice of Completion has been posted with respect to such Project and recorded
in the Office of the County Recorder of Clark County, Nevada and the statutory
period for filing mechanics liens under Nevada law with respect to work
performed before filing such Notice of Completion has expired, (d) the Funding
Agents have received final 101.6 endorsements from the Title Insurer insuring
the priority of their respective Liens on the Project Security, (e) the
Company shall have delivered to the Disbursement Agent, the Bank Agent and the
2014 Notes Indenture Trustee its Final Completion Certificate certifying that
(i) all Project Punchlist Items for such Project have been completed and the
Company has settled with the Contractors all claims for payments and amounts
due under the Contracts relating to such Project and the Company has received
a final lien release from each Contractor and Subcontractor as required under
the Disbursement Agreement, each in the form of Exhibit H-3 of the
Disbursement Agreement, (f) the Construction Consultant and the Project
Architect and the Primary Contractor for such Project each shall have
delivered its Final Completion Certificate and the Company and the
Construction Consultant shall have accepted the Primary Contractor's Final
Completion Certificate in accordance with Section 6.2.2 of the Disbursement
Agreement, (g) the Company shall have delivered to the Funding Agents and the
Construction Consultant an "as built survey" of such Project, and (h) the
Company shall have delivered from the surety under each Payment and
Performance Bond delivered in connection with any Contracts relating to such
Project required pursuant to Section 5.9 of the Disbursement Agreement a
"Consent of Surety to Final Payment" (AIA form G707).
"Final Completion Certificates" means, collectively, the
Final Completion Certificates in substantially the forms of Exhibits U-1, U-2,
U-3, U-4, U-5 and U-6 to the Disbursement Agreement to be delivered by the
Company, the Construction Consultant, the Project Architects and the Primary
Contractors, as the case may be.
"Final Completion Date" means, with respect to each Project,
the date on which the Disbursement Agent countersigns the Company's Final
Completion Certificate pursuant to Section 2.9 of the Disbursement Agreement
acknowledging that Final Completion of such Project has occurred.
"Final Plans and Specifications" means, with respect to any
particular work or improvement, Plans and Specifications which (i) have
received final approval from all Governmental Authorities required to approve
such Plans and Specifications prior to completion of the work or improvements;
(ii) contain sufficient specificity to permit the completion of the work or
improvement and (iii) are consistent with the standards set forth in Exhibits
V-1 and V-2 of the Disbursement Agreement.
"Financing Agreements" means, collectively, the Disbursement
Agreement, the Bank Credit Agreement, the 2014 Notes Indenture, the Security
Documents, the 2014 Notes, the Collateral Agency Agreement, any fee letters or
engagement letters to which the Arrangers, the Bank Agent, the Collateral
Agent, the Nevada Collateral Agent or the Disbursement Agent is a party, and
any other loan or security agreements entered into on, prior to or after the
Closing Date with the Disbursement Agent, the Bank Agent, the 2014 Notes
Indenture Trustee, the Collateral Agent or the Nevada Collateral Agent in
connection with the financing of the Projects.
"Funding Agents" means, subject to Section 11.15 of the
Disbursement Agreement, collectively, the Bank Agent and the 2014 Notes
Indenture Trustee.
"Funding Sources" means the Bank Credit Facility, the 2014
Notes Proceeds, amounts on deposit in the Company's Funds Account and (to the
extent permitted under Section 5.5.3 of the Disbursement Agreement) amounts on
deposit in the Completion Guaranty Deposit Account and the Project Liquidity
Reserve Account.
"Gaming/Liquor Licenses" means all licenses, permits,
approvals, authorizations, exemptions, waivers, finding of suitability and
registrations issued by the Nevada Gaming Authorities and required by the
Company and its Affiliates to own and operate the Projects.
"Golf Course" means the Tom Fazio/Stephen A. Wynn designed
18-hole golf course to be situated on the Golf Course Land.
"Golf Course Land" means the land on which the Golf Course
is located, as more particularly described in Part A of Exhibit Q-3 to the
Disbursement Agreement.
"Golf Course Land Easements" means the easements
appurtenant, easements in gross, license agreements and other rights running
for the benefit of the Company, or Wynn Golf and/or appurtenant to the Golf
Course Land, including, without limitation, those certain easements and
licenses described in the Title Policy.
"Golf Course Lease" means that certain Golf Course Lease
dated as of December 14, 2004 between Wynn Golf, as landlord, and the Company,
as tenant.
"Governmental Authority" means any national, state or local
government (whether domestic or foreign), any political subdivision thereof or
any other governmental, quasi-governmental, judicial, public or statutory
instrumentality, authority, body, agency, bureau or entity, (including the
Nevada Gaming Authorities, any zoning authority, the FDIC, the Comptroller of
the Currency or the Federal Reserve Board, any central bank or any comparable
authority), any entity exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to government or any arbitrator
with authority to bind a party at law.
"Hard Costs" means:
(a) with respect to the Phase I Project, the Project
Costs set forth in the Phase I Project Budget under the following Line Items or
Line Item Categories:
(i) GMP Contract Line Item Category;
(ii) Interior Furnishings/Signage/Electronic
Systems Line Item Category;
(iii) Owner FF&E Line Item Category;
(iv) Miscellaneous Capital Projects Line Item
Category;
(v) Golf Course Line Item Category; and
(vi) Parking Garage Line Item Category.
(b) with respect to the Phase II Project, the Line Items
and Line Item Categories set forth in the Phase II Project Budget delivered by
the Company pursuant to Section 3.4.2 and designated by the Company to be
associated with Hard Costs (which designation shall be reasonably acceptable
to the Disbursement Agent and the Construction Consultant and substantially
similar to those designated as Hard Costs for the Phase I Project under clause
(a) above).
"Hazardous Substances" means (statutory acronyms and
abbreviations having the meaning given them in the definition of
"Environmental Laws" under the Bank Credit Agreement) substances defined as
"hazardous substances," "pollutants" or "contaminants" in Section 101 of the
CERCLA; those substances defined as "hazardous waste" by the RCRA; those
substances designated as a "hazardous substance" pursuant to Section 311 of
the CWA; those substances regulated as a hazardous chemical substance or
mixture or as an imminently hazardous chemical substance or mixture pursuant
to Sections 6 or 7 of the TSCA; those substances defined as "contaminants" by
Section 1401 of the SDWA, if present in excess of permissible levels; those
substances regulated by the Oil Pollution Act; those substances defined as a
pesticide pursuant to Section 2(u) of the FIFRA; those substances defined as a
source, special nuclear or by-product material by Section 11 of the AEA; those
substances defined as "residual radioactive material" by Section 101 of the
UMTRCA; those substances defined as "toxic materials" or "harmful physical
agents" pursuant to Section 6 of the OSHA); those substances defined as
hazardous wastes in 40 C.F.R. Part 261.3; those substances defined as
hazardous waste constituents in 40 C.F.R. Part 260.10, specifically including
Appendix VII and VIII of Subpart D of 40 C.F.R. Part 261; those substances
designated as hazardous substances in 40 C.F.R. Parts 116.4 and 302.4; those
substances defined as hazardous substances or hazardous materials in 49 C.F.R.
Part 171.8; those substances regulated as hazardous materials, hazardous
substances, or toxic substances in any other "Environmental Laws" as such term
is defined in the Bank Credit Agreement, and in the regulations adopted and
publications promulgated pursuant to said laws, whether or not such
regulations or publications are specifically referenced herein.
"Home Site Land" means a tract of land of approximately 20
acres located on the Golf Course where residential and non-gaming related
developments may be built after release of the Home Site Land in accordance
with Section 7.5 of the Bank Credit Agreement and Section 10.03 of the 2014
Notes Indenture.
"Improvements" means the buildings, fixtures and other
improvements to be situated on the Mortgaged Property.
"In Balance" means that, at the time of calculation and
after giving effect to any requested Advance (or, if no Advance is then being
requested, after deducting from Available Funds the amount of costs incurred
but not paid since the date of the immediately preceding Advance), (a) the
Unallocated Phase I Contingency Balance equals or exceeds the Required Phase I
Minimum Contingency, (b) after the Phase II Approval Date, the Unallocated
Phase II Contingency Balance equals or exceeds the Required Phase II Minimum
Contingency, (c) the Available Funds equal or exceed the sum of the aggregate
Remaining Costs for each Line Item Category allocated to each of the Phase I
Project and, after the Phase II Approval Date, the Phase II Project in the
applicable Project Budget plus the Required Phase I Minimum Contingency plus
the Required Phase II Minimum Contingency and (d) there shall be no negative
number identified for any Line Item Category in column L ("Variance
Over/Under") of the Summary Anticipated Cost Reports.
"Independent Consultants" means, collectively, the Insurance
Advisor and the Construction Consultant.
"Insurance Advisor" means Marsh USA Inc., or its successor,
appointed from time to time in accordance with Section 8.1 of the Disbursement
Agreement; provided, however, that the parties acknowledge and agree that,
upon the effectiveness of Charlie Moore and Mandy Woods-McNeil's departure
from Marsh USA Inc., Moore-McNeil, LLC shall automatically be deemed to be the
successor Insurance Advisor to Marsh USA, Inc.
"Insurance Advisor's Closing Certificate" means a closing
certificate in the form of Exhibit B-3 to the Disbursement Agreement.
"Intercreditor Agreement" means that certain Amended and
Restated Intercreditor Agreement dated as of December 14, 2004 between the
Bank Agent and the 2014 Notes Indenture Trustee.
"Interest Rate Agreement" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or
other similar agreement or arrangement (including, without limitation, the
"Specified Hedge Agreements" as such term is defined in the Bank Credit
Agreement).
"IP Security Agreement" means that certain Intellectual
Property Security Agreement dated as of December 14, 2004 made by the Company
for the benefit of the Collateral Agent.
"Koval Land" means the approximately 18 acres of land
located across from the Projects on Koval Lane and Sands Avenue and owned as
of the Closing Date by Wynn Sunrise.
"Las Vegas Jet" means Las Vegas Jet, LLC, a Nevada limited
liability company.
"Last Project Final Completion Date" means (i) the Final
Completion Date of the Phase I Project (if the Phase II Approval Date shall
have not occurred on or prior to the Phase II Revolving Commitment Sunset
Date); otherwise (ii) the Final Completion Date of the Phase II Project (if
the Phase II Approval Date shall have occurred on or prior to the Phase II
Revolving Commitment Sunset Date).
"Legal Requirements" means all laws, statutes, orders,
decrees, injunctions, licenses, permits, approvals, agreements and regulations
of any Governmental Authority having jurisdiction over the matter in question,
including, without limitation, Nevada Gaming Laws.
"Lender" means any of the Bank Lenders and the 2014
Noteholders.
"Letter of Credit" has the meaning given to such term in the
Bank Credit Agreement.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected under
applicable law (including any conditional sale or other title retention
agreement, any lease in the nature thereof and any option or other agreement
to sell or give a security interest in such asset but excluding any license or
similar agreement (such as an option to obtain a license) of intellectual
property).
"Line Item" means each of the individual line items set
forth in the Anticipated Cost Reports and the Monthly Requisition Reports (as
in effect from time to time), which individual line items shall be reasonably
acceptable to the Disbursement Agent and the Construction Consultant.
"Line Item Category" means
(a) with respect to the Phase I Project Budget, each of
the following line item categories:
(i) Land and Buildings;
(ii) Global Express Airplane Purchase;
(iii) GMP Contract;
(iv) Interior Furnishings/Signage/Electronic
Systems;
(v) Owner FF&E;
(vi) Miscellaneous Capital Projects;
(vii) Golf Course;
(viii) Parking Garage;
(ix) Capitalized Interest & Commitment Fees;
(x) Pre-Opening Expense;
(xi) Transaction Fees & Expenses;
(xii) Design and Engineering Fees;
(xiii) Working Capital Requirements at Opening;
(xiv) Entertainment Production;
(xv) Insurance/Utilities/Security;
(xvi) Property Taxes;
(xvii) Government Approvals & Permits;
(xviii) Miscellaneous Operating Costs; and
(xix) Phase I Construction Contingency; and
(b) with respect to the Phase II Project Budget, each of
the line item categories included in the Phase II Project Budget delivered by
the Company and approved by the Majority of the Arrangers pursuant to Section
3.4.2.
"Loan Parties" shall mean the Company, Capital Corp., Wynn
Sunrise, Wynn Show Performers, Wynn Golf, World Travel, LLC, Las Vegas Jet,
and each other Subsidiary of the Company (other than the Completion Guarantor)
which is a party to a Material Project Document or a Security Document.
"Loans" has the meaning given such term in the Bank Credit
Agreement.
"Local Company Collateral Account Agreement(s)" means one or
more control agreements with respect to the Cash Management Account and the
Company's Payment Account substantially in the form of Exhibit I (or as
otherwise approved by the Disbursement Agent) and entered into by a bank that
is reasonably acceptable to the Disbursement Agent pursuant to Sections 2.2.4
and 2.2.6 of the Disbursement Agreement.
"Loss Proceeds" has the meaning given in Section 5.14.1 of
the Disbursement Agreement.
"Major Project Participant" has the meaning given in the
Bank Credit Agreement.
"Majority of the Arrangers" shall have the meaning given in
the Bank Credit Agreement.
"Material Adverse Effect" means a material adverse condition
or material adverse change in or affecting (a) the business, assets,
liabilities, property, condition (financial or otherwise), results of
operations, prospects, value or management of the Company and the other Loan
Parties, taken as a whole, or of any Project Credit Support Provider, (b) the
Projects, (c) the ability of the Company to achieve the Phase I Opening Date
prior to the Phase I Scheduled Opening Date, the Phase I Substantial
Completion Date prior to the Phase I Scheduled Substantial Completion Date,
the Phase I Completion Date on or prior to the Phase I Scheduled Completion
Date, the Phase II Opening Date prior to the Phase II Scheduled Opening Date
and the Phase II Completion Date prior to the Phase II Scheduled Completion
Date; (d) the validity or enforceability of any Financing Agreement; (e) the
validity, enforceability or priority of the Liens purported to be created
under the Security Documents; or (f) the rights and remedies of any Secured
Party under any Financing Agreement.
"Material Construction Agreements" means any of the Phase I
Construction Agreements, the Phase I Professional Design Services Agreements,
the Construction Guaranty, each Contract entered into with the Phase II Major
Contractors or the Phase II Major Architects, and, without duplication, any
Construction Agreement with a total contract amount or value in excess of
$15,000,000, and each Payment and Performance Bond issued to support any of
the foregoing.
"Material Project Documents" has the meaning given to the
term "Material Contracts" in the Bank Credit Agreement.
"Monthly Requisition Report" means one or more Monthly
Requisition Reports substantially in the form of Appendix III to Exhibit C-1
to the Disbursement Agreement or as otherwise approved by the Disbursement
Agent and which provides the information therein segregated by Line Item
Categories and by Line Item for the Phase I Project and, from and after the
Phase II Approval Date, the Phase II Project.
"Moody's" means Moody's Investors Service, Inc., a Delaware
corporation, or any successor thereof.
"Mortgaged Property" means, collectively, all real and
personal property which is subject or is intended to become subject to the
security interests or liens granted by any Deeds of Trust.
"Nevada Collateral Agent" means Bank of America, N.A. in its
capacity as collateral agent under the Collateral Agency Agreement and its
successors in such capacity.
"Nevada Gaming Authorities" means, collectively, the Nevada
Gaming Commission, the Nevada State Gaming Control Board, and the Clark County
Liquor and Gaming Licensing Board and any other federal, state or local agency
having jurisdiction over gaming operations in the State of Nevada.
"Nevada Gaming Laws" means the Nevada Gaming Control Act, as
codified in Chapter 463 of the Nevada Revised Statutes, as amended from time
to time, and the regulations of the Nevada Gaming Commission promulgated
thereunder, as amended from time to time, and other laws or regulations
promulgated by the Nevada Gaming Authorities and applying to gaming operations
in the State of Nevada.
"Notice of Advance Request" means a Notice of Advance
Request in the form of Exhibit D to the Disbursement Agreement.
"Obligations" means (a) all loans, advances, debts,
liabilities, and obligations, howsoever arising, owed by the Company or any
other Loan Party to any Lender of every kind and description (whether or not
evidenced by any note or instrument and whether or not for the payment of
money), direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising, pursuant to the terms of any of Financing
Agreements including all interest (including interest accruing after the
maturity of the Loans and the 2014 Notes and interest accruing after the
filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Loan Party, whether or not
a claim for post-filing or post-petition interest is allowed in such
proceeding), fees, premiums, if any, charges, expenses, attorneys' fees and
accountants fees chargeable to any Loan Party in connection with its dealings
with the such Loan Party and payable by any Loan Party hereunder or thereunder
and including, without limitation, all "Obligations" as defined in the Bank
Credit Agreement; (b) any and all sums advanced by the Disbursement Agent or
the Collateral Agent in order to preserve the Project Security or preserve any
Secured Party's security interest in the Project Security, including all
Protective Advances; and (c) in the event of any proceeding for the collection
or enforcement of the Obligations after an Event of Default shall have
occurred and be continuing, the reasonable expenses of the Collateral Agent of
retaking, holding, preparing for sale or lease, selling or otherwise disposing
of or realizing on the Project Security, or of any exercise by any Secured
Party of its rights under the Security Documents, together with reasonable
attorneys' fees and court costs.
"Opening Conditions" means, collectively, with respect to
each Project, the following:
(a) the Funding Agents shall have received from the Company
its Opening Date Certificate, pursuant to which the Company certifies that:
(i) the construction of such Project and all
infrastructure and other improvements required to
be constructed under applicable Legal Requirements
or pursuant to the Development Agreements shall
have been completed (except for Project Punchlist
Items with respect to such Project) in accordance
with the Plans and Specifications;
(ii) all furnishings, fixtures and equipment necessary
to use and occupy the various portions of such
Project for their intended uses shall have been
installed and shall be operational;
(iii) all Project Costs (other than Project Costs
consisting of (A) Retainage Amounts, and other
amounts, that, as of the applicable Opening Date,
are being withheld from the Contractors in
accordance with the provisions of the Project
Documents, (B) amounts being contested in
accordance with the Financing Agreements so long as
adequate reserves have been established through an
allocation in the Anticipated Cost Report for such
Project and in accordance with any requirements of
such Financing Agreements, (C) amounts payable in
respect of Project Punchlist Items with respect to
such Project to the extent not covered by the
foregoing clause (A) and (D) amounts incurred by
any Contractors or Subcontractors within the last
thirty (30) days and to be paid under the current
Advance Request which has been submitted but not
yet disbursed) shall have been paid in full;
(iv) such Project shall be served by, and shall be
equipped to accept water, gas, electric, sewer,
sanitary sewer, storm drain and other facilities
and utilities necessary for use of such Project and
each portion thereof for its intended uses, which
utility service is provided by public or private
utilities over utility lines, pipes, wires and
other facilities that run solely over public
streets or private property (in the case of private
property, pursuant to recorded easements);
(v) a Project Certificate of Occupancy shall have been
issued for such Project and each other Permit
required to be obtained prior to opening of such
Project shall have been obtained (including the
gaming license for the Project);
(vi) such Project (other than the premises to be
occupied by individual retail and restaurant
tenants in such Project) shall be ready to open for
business to the general public for its intended
uses; provided that in all events all rooms shall
be ready for occupancy, and with respect to the
Phase I Project, each restaurant shall be ready to
open for business, and, at least sixty-seven
percent (67%) of the retail tenants shall be ready
to open for business and with respect to the Phase
II Project, each restaurant shall be ready to open
for business and at least sixty-seven percent (67%)
of the retail tenants (excluding the Retail
Facility) shall be ready to open for business; and
(vii) the Company shall have delivered an update to the
Projections.
(b) the Construction Consultant has delivered its
Opening Date Certificate approving the Company's
Opening Date Certificate with respect to such
Project and the Project Architect has delivered its
Opening Date Certificate;
(c) the remaining work on the Project shall be such
that it will not interfere with or disrupt the
operation of such Project for its intended purposes
or detract from the aesthetic appearance of such
Project other than to a de minimis extent;
(d) the failure to complete the remaining work would
not interfere with or disrupt the operation of such
Project for its intended purposes or detract from
the aesthetic appearance of such Project other than
to a de minimis extent; and (e) the Company shall
have available a fully trained staff to operate
such Project in accordance with industry standards;
provided, however that the Phase I Project may open
for business despite the fact that the
Entertainment Facility and the Fairway Villas are
not sufficiently completed so as to satisfy the
foregoing conditions and the Phase II Project may
open for business despite the fact that the Retail
Facility is not sufficiently completed so as to
satisfy the foregoing conditions.
"Opening Date" means, with respect to each Project, the date
on which the Disbursement Agent countersigns the Company's Opening Date
Certificate for such Project acknowledging that the Opening Conditions have
been satisfied and such Project shall be open for business.
"Opening Date Certificates" means, collectively, the
certificates substantially in the form of Exhibits S-1, S-2, S-3, S-4, S-5 and
S-6 to the Disbursement Agreement to be delivered by the Company, the
Construction Consultant, the Primary Contractors and the Project Architects,
as the case may be.
"Operating Costs" means all actual cash costs incurred by
the Company and related to the operation of the Projects or any portion
thereof in the ordinary course of business, including, without limitation,
costs incurred for labor, consumables, utility services, and all other
operation related costs; provided that (a) Operating Costs shall not include
non-cash charges (including depreciation and amortization) and (b) Debt
Service accruing with respect to Advances made under the Bank Credit Agreement
or from the 2014 Notes Proceeds Account to pay Project Costs allocated to the
Phase I Project under the Phase I Project Budget shall constitute Operating
Costs from and after the Phase I Opening Date but not prior to such date.
"Operative Documents" means the Financing Agreements and the
Project Documents.
"Outside Phase I Completion Deadline" means September 30,
2005, as extended pursuant to Section 6.3.2 of the Disbursement Agreement.
"Outside Phase I Substantial Completion Deadline" means June
30, 2005, as extended pursuant to Section 6.3.2 of the Disbursement Agreement.
"Outside Phase I Opening Deadline" means June 30, 2005, as
extended pursuant to Section 6.3.2 of the Disbursement Agreement.
"Outside Phase II Completion Deadline" means March 31, 2008,
as extended pursuant to Section 6.3.2 of the Disbursement Agreement.
"Outside Phase II Opening Deadline" means December 31, 2007,
as extended pursuant to Section 6.3.2 of the Disbursement Agreement.
"Outstanding Releases" has the meaning given in Section
3.2.7 of the Disbursement Agreement.
"Payment and Performance Bond" means any payment and
performance bond delivered under any Contract or Subcontract (including the
Phase I Primary Contractor Payment and Performance Bond) in favor of the
Company or any Primary Contractor, the Collateral Agent, the Bank Agent
(acting on behalf of the Bank Lenders) and the 2014 Notes Indenture Trustee
(acting on behalf of the 2014 Noteholders) supporting the Contractor's or
Subcontractor's obligations under any such Contract.
"Permits" means all authorizations, consents, decrees,
permits, waivers, exemptions, privileges, approvals from and registrations and
filings with all Governmental Authorities necessary for the construction,
development, ownership, lease or operation of a Project in accordance with the
Operative Documents, including all Gaming/Liquor Licenses.
"Permitted Encumbrances" means with respect to the Deed of
Trust executed by the Company, the Wynn Las Vegas Permitted Encumbrances; with
respect to the Deeds of Trust executed by Wynn Golf, the Wynn Golf Permitted
Encumbrances; and with respect to the Deeds of Trust executed by Wynn Sunrise,
the Wynn Sunrise Permitted Encumbrances.
"Permitted Investments": means, prior to the Last Project
Final Completion Date, the following:
(a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States
government or issued by any agency thereof and
backed by the full faith and credit of the United
States, in each case maturing within 18 months from
the date of acquisition;
(b) shares of money market mutual or similar funds
which invest exclusively in assets satisfying the
requirements of clause (a) of this definition; or
(c) shares of, or an investment in, the JPMorgan
Federal Money Market Fund.
"Permitted Liens" means Liens permitted under each of the
Facility Agreements.
"Person" means any natural person, corporation, partnership,
firm, association, Governmental Authority or any other entity whether acting
in an individual, fiduciary or other capacity.
"Phase I Anticipated Cost Report" means any of the
anticipated cost reports in the forms of Exhibit F-3 to the Disbursement
Agreement and which provides, for each Line Item Category relating to the
Phase I Project, the detailed supporting information broken down by Line Item.
"Phase I Aqua Theater and Showroom Design Services
Agreements" means (i) that certain Professional Design Services Agreement
dated as of October 5, 2001 between the Phase I Aqua Theater and Showroom
Designer and the Company; and (ii) that certain Professional Design Services
Agreement dated as of June 30, 2004 between the Phase I Aqua Theater and
Showroom Designer and the Company.
"Phase I Aqua Theater and Showroom Designer" means Marnell
Architecture, a Professional Corporation, a Nevada corporation (fka A.A.
Marnell II, Chtd.).
"Phase I Architect" means Butler/Ashworth Architects Ltd.,
LLC, a Nevada limited liability company.
"Phase I Architect's Agreement" means that certain Agreement
between Owner and Project Architect dated as of October 30, 2002 between the
Company and the Phase I Architect.
"Phase I Completion Date" means the date on which the
Disbursement Agent countersigns the Company's Completion Certificate for the
Phase I Project (including the Entertainment Facility and the Fairway Villas)
pursuant to Section 2.7 of the Disbursement Agreement acknowledging that
Completion of the Phase I Project has occurred.
"Phase I Construction Agreements" means, collectively, the
Phase I Primary Construction Contract, the Phase I Golf Course Construction
Contract and the Phase I Parking Structure Construction Contract.
"Phase I Excess Cash Flow Credit Amount" means at any given
time from and after the Phase II Approval Date, the sum of (1) the sum of all
dollar amounts included under the column "Excess Cash Flow" for the
then-current calendar quarter and all ensuing calendar quarters (or any
portion thereof) prior to the Phase II Scheduled Opening Date included in the
Phase I Projected Excess Cash Flow Schedule plus (2) the lesser of: (x) the
sum of all dollar amounts included under the column "Excess Cash Flow" from
the calendar quarter (or portion thereof) occurring from and after the Phase
II Scheduled Opening Date and all ensuing calendar quarters prior to the
then-anticipated Phase II Project Final Completion Date included in the Phase
I Projected Excess Cash Flow Schedule and (y) the Remaining Costs with respect
to the Phase II Project then anticipated to become due and payable from and
after the Phase II Scheduled Opening Date. To the extent required, the Excess
Cash Flow attributable to any calendar quarter shall be pro-rated based on the
number of days in such quarter.
"Phase I Golf Course Contractor" means Wadsworth Golf
Construction Company.
"Phase I Golf Course Construction Contract" means the Lump
Sum Agreement, effective as of February 18, 2003, by and between the Company
and the Phase I Golf Course Contractor, relating to the construction of the
Golf Course, as amended by (i) Change Order No. 1 dated May 21, 2003, (ii)
Change Order No. 2 dated September 18, 2003, (iii) Change Order No. 3 dated
January 26, 2004, (iv) Change Order No. 4 dated April 5, 2004 and (v) Change
Order No. 5 dated September 30, 2004.
"Phase I Golf Course Design Services Agreement" means that
certain Agreement dated as of October 21, 2002 between the Phase I Golf Course
Designer and the Company.
"Phase I Golf Course Designer" means T.J.F. Golf, Inc., a
Florida corporation.
"Phase I Opening Date" means the date on which the
Disbursement Agent countersigns the Company's Opening Date Certificate for the
Phase I Project (which may exclude the Entertainment Facility and the Fairway
Villas) acknowledging that the Opening Conditions for the Phase I Project have
been satisfied.
"Phase I Parking Structure Construction Contract" means that
certain Design/Build Agreement dated as of June 6, 2002 between the Company
and the Phase I Parking Structure Contractor, as amended by (i) Change Order
No. 1 dated December 27, 2002, (ii) Change Order No. 2 dated February 18,
2003, (iii) Change Order No. 3 dated July 11, 2003, (iv) Change Order No. 4
dated August 29, 2003 and (v) Change Order No. 5 dated March 18, 2004.
"Phase I Parking Structure Contractor" means Bomel
Construction Co., Inc., a California corporation.
"Phase I Primary Contractor" means Marnell Corrao
Associates, Inc., a Nevada corporation.
"Phase I Primary Construction Contract" means that certain
Agreement for Guaranteed Maximum Price Construction Services for Le Reve dated
as of June 4, 2002 between the Company and the Phase I Primary Contractor, as
amended by (i) Change Order No. 1 dated as of August 12, 2002, (ii) Change
Order No. 2 dated as of August 31, 2003, (iii) Change Order No. 3 dated March
31, 2004, (iv) Changer Order No. 4 dated June 30, 2004, (v) Change Order No. 5
dated August 30, 2004 and (vi) Change Order No. 6 dated November 30, 2004.
"Phase I Primary Contractor Payment and Performance Bond"
means that certain payment and performance bond issued by American
International Companies (AIG) and Kemper Insurance, jointly and severally, in
favor of the Company, the Bank Agent (acting on behalf of the Bank Lenders)
and the 2014 Notes Indenture Trustee (acting on behalf of the 2014
Noteholders) supporting the Phase I Primary Contractor's obligations under the
Phase I Primary Construction Contract.
"Phase I Professional Design Services Agreements" means,
collectively, the Phase I Golf Course Design Services Agreement, the Phase I
Aqua Theater and Showroom Design Services Agreements and the Phase I
Architect's Agreement.
"Phase I Project" means Wynn Las Vegas hotel and casino
resort, with related parking structure and golf course facilities to be
developed at the Site, all as more particularly described in Exhibit Q-1 to
the Disbursement Agreement.
"Phase I Project Budget" means the budget for the Phase I
Project delivered pursuant to Section 3.1.13 of the Disbursement Agreement, as
amended from time to time in accordance with Section 6.3 of the Disbursement
Agreement.
"Phase I Project Schedule" means the construction schedule
for the Phase I Project delivered pursuant to Section 3.1.14 of the
Disbursement Agreement, as from time to time in accordance with Section 6.3 of
the Disbursement Agreement.
"Phase I Projected Excess Cash Flow Schedule" means the
schedule of projected "Excess Cash Flow" (as such term is defined in the Bank
Credit Agreement) reasonably anticipated by the Company to be generated by
operation of the Phase I Project from and after the Phase I Opening Date until
the Phase II Project Final Completion Date delivered pursuant to Section
3.1.37 of the Disbursement Agreement and any subsequent or revised schedule
adopted as provided in Section 5.1.4(b) of the Disbursement Agreement.
"Phase I Reports" shall have the meaning given in Section
3.1.31 of the Disbursement Agreement.
"Phase I Required Contractor and Architect Advance
Certificates" means, collectively, with respect to each Advance Request
relating to the Phase I Project, the certificates substantially in the form of
Exhibits C-3, C-4, C-5, C-6, and C-7 to the Disbursement Agreement from the
Phase I Architect, the Phase I Primary Contractor, the Phase I Golf Course
Designer, the Phase I Golf Course Contractor and the Phase I Aqua Theater and
Showroom Designer, as the case may be, required to be attached thereto
pursuant to Section 2.3.1(b) of the Disbursement Agreement.
"Phase I Scheduled Completion Date" means August 26, 2005,
as the same may from time to time be extended pursuant to Section 6.3 of the
Disbursement Agreement.
"Phase I Scheduled Opening Date" means April 28, 2005, as
the same may from time to time be extended pursuant to Section 6.3 of the
Disbursement Agreement.
"Phase I Scheduled Substantial Completion Date" means April
27, 2005, as the same may from time to time be extended pursuant to Section
6.3 of the Disbursement Agreement.
"Phase I Substantial Completion" means that each of the
following has occurred:
(a) the Opening Date for the Phase I Project shall have
occurred under Section 6.4 of the Disbursement
Agreement;
(b) all Contractors and Subcontractors have been paid
in full for all work performed with respect to the
Phase I Project (other than (A) Retainage Amounts
and other amounts that, as of the Phase I
Substantial Completion Date, are being withheld
from the Contractors and Subcontractors in
accordance with the provisions of the Project
Documents, (B) amounts being contested in
accordance with the Financing Agreements so long as
adequate reserves have been established through an
allocation in the Phase I Anticipated Cost Report
and in accordance with any requirements of such
Financing Agreements, (C) amounts with respect to
the Entertainment Facility and the Fairway Villas,
and (D) amounts payable in respect of Project
Punchlist Items for the Phase I Project (excluding
the Entertainment Facility and the Fairway Villas)
to the extent not covered by the foregoing clause
(A));
(c) for Project Punchlist Items, a list of any
remaining Project Punchlist Items for the Phase I
Project (excluding the Entertainment Facility and
the Fairway Villas) (including the cost of each
such remaining Project Punchlist Item) shall have
been delivered to the Construction Consultant and
the Disbursement Agent by the Company and approved
by the Construction Consultant as a reasonable
final punchlist (such approval not to be
unreasonably withheld);
(d) the Phase I Primary Contractor, the Phase I Golf
Course Contractor, the Phase I Parking Structure
Contractor, the Phase I Architect, the Phase I Golf
Course Designer and the Phase I Aqua Theater and
Showroom Designer each shall have delivered its
Completion Certificate certifying, among other
things, as to "substantial completion" of the work
under its respective Construction Agreement with
respect to the Phase I Project (excluding the
Entertainment Facility and the Fairway Villas) has
occurred and such certifications shall have been
accepted by the Company and the Construction
Consultant in accordance with Section 6.2.2 of the
Disbursement Agreement; and
(e) for each Contract and Subcontract for which a
Payment and Performance Bond is required pursuant
to Section 5.9 of the Disbursement Agreement and
for which the Company (or the applicable
Contractor) will release retainage as a result of
Phase I Substantial Completion being achieved, the
Company shall have delivered from the surety under
each such Payment and Performance Bond (i) a
"Consent of Surety to Reduction in or Partial
Release of Retainage" (AIA form G707A) if a partial
release of Retainage Amounts held under such
Contract or Subcontract will be made or (ii) a
"Consent of Surety to Final Payment" (AIA form
G707) if a release of all Retainage Amounts held
under such Contract or Subcontract will be made).
"Phase I Substantial Completion Certificates" means,
collectively, the Completion Certificates substantially in the form of
Exhibits T-1, T-2, T-3, T-4, T-5, T-6, T-7 and T-8 to the Disbursement
Agreement to be delivered by the Company, the Construction Consultant, the
Phase I Project Architect, the Phase I Primary Contractor, the Phase I Golf
Course Contractor, the Phase I Parking Structure Contractor, the Phase I Golf
Course Designer, the Phase I Aqua Theater and Showroom Designer relating to
Phase I Substantial Completion of the Phase I Project (excluding the
Entertainment Facility and the Fairway Villas).
"Phase I Substantial Completion Date" means the date on
which the Disbursement Agent countersigns the Company's Phase I Substantial
Completion Certificate pursuant to Section 2.6 of the Disbursement Agreement
acknowledging that Phase I Substantial Completion has occurred.
"Phase I Summary Anticipated Cost Report" means an
anticipated cost report in the form of Exhibit F-2 to the Disbursement
Agreement and which provides the information indicated therein with respect to
the Phase I Project segregated by each Line Item Category.
"Phase II Anticipated Cost Report" means any of the
anticipated cost reports in the forms of Exhibit F-6 to the Disbursement
Agreement and which provides, for each Line Item Category relating to the
Phase II Project, the detailed supporting information broken down by Line
Item.
"Phase II Approval Date" means the date on which the
Disbursement Agent and the Bank Agent countersign the Company's Phase II
Approval Date Certificate pursuant to Section 3.4 of the Disbursement
Agreement.
"Phase II Architect" means one or more Contractors
reasonably acceptable to the Majority of the Arrangers that enters into the
Phase II Architect's Agreement with the Company to design the Phase II
Project.
Phase II Architect's Agreement" means one or more agreements
to be entered into between the Company and the Phase II Architect for the
design of the Phase II Project in form and substance reasonably satisfactory
to the Majority of the Arrangers.
"Phase II Completion Date" means the date on which the
Disbursement Agent countersigns the Company's Completion Certificate for the
Phase II Project pursuant to Section 2.7 of the Disbursement Agreement
acknowledging that Completion of the Phase II Project has occurred.
"Phase II Deliverables" means the Phase II Project Budget,
the Phase II Project Schedule, the Plans and Specifications relating to the
Phase II Project, the updated Construction Consultant's Report and each other
document or agreement relating to the Phase II Project required to be
delivered by the Company or any other Person under Section 3.4 of the
Disbursement Agreement in order to satisfy the conditions precedent to the
Phase II Approval Date.
"Phase II Fifty Percent Completion Date" means the date on
which the following conditions shall have been satisfied as set forth in the
Phase II Fifty Percent Completion Date Certificate delivered by the Company
and (other than with respect to clause (b)(B) below) confirmed by the
Construction Consultant in its Phase II Fifty Percent Completion Date
Certificate: (a) 50% of the work required to achieve completion of the Phase
II Project has been completed (determined by (i) the amount of Hard Costs
incurred to such date under the Phase II Project Budget (excluding those
allocated to the "Owner FF&E" Line Item Category and any other Hard Costs
reasonably approved by the Construction Consultant), as compared to (ii) the
total amount of Hard Costs set forth in the Phase II Project Budget (as then
in effect) (excluding those allocated to the "Owner FF&E" Line Item Category
and any other Hard Costs reasonably approved by the Construction Consultant)
and (b) all Contractors and Subcontractors have been paid in full or will be
paid in full with the pending Advance Request for work performed with respect
to the Phase II Project through such date (other than (A) Retainage Amounts,
and other amounts, that, as of the Phase II Fifty Percent Completion Date, are
being withheld from the Contractors and Subcontractors in accordance with the
provisions of the Project Documents, and (B) amounts being contested in
accordance with the Financing Agreements so long as adequate reserves have
been established through an allocation in the Phase II Anticipated Cost Report
and in accordance with any requirements of such Financing Agreements) and have
provided lien waivers to the extent required under Section 3.2.7 of the
Disbursement Agreement for all work performed prior to the Phase II Fifty
Percent Completion Date.).
"Phase II Fifty Percent Completion Date Certificates" means
the certificates issued by the Company and the Construction Consultant
substantially in the form of Exhibits R-4 and R-5 to the Disbursement
Agreement.
"Phase II Land" means approximately 20-acre tract of land
upon which the Phase II Project shall be built, as more particularly described
in Part C of Exhibit Q-3 to the Disbursement Agreement.
"Phase II Major Architects" means the Phase II Architect and
each other Contractor designated as such by the Majority of Arrangers (in
consultation with the Construction Consultant) that has entered into a
Contract with the Company to design a material portion of the Phase II
Project.
"Phase II Major Architect's Advance Certificate" means, with
respect to each Advance Request relating to the Phase II Project after the
Phase II Approval Date, a certificate from each Phase II Major Architect, as
applicable, in the form of Exhibit C-8 to the Disbursement Agreement required
to be attached thereto pursuant to Section 2.3.1(c) of the Disbursement
Agreement.
"Phase II Major Contractors" means the Phase II Primary
Contractor and each other Contractor designated by the Majority of Arrangers
(in consultation with the Construction Consultant) that has entered into a
Construction Contract with the Company to build a material portion of the
Phase II Project.
"Phase II Major Contractor's Advance Certificate" means,
with respect to each Advance Request relating to the Phase II Project after
the Phase II Approval Date, a certificate from each Phase II Major Contractor,
as applicable, in the form of Exhibit C-9 to the Disbursement Agreement
required to be attached thereto pursuant to Section 2.3.1(c) of the
Disbursement Agreement.
"Phase II Opening Date" means the date on which the
Disbursement Agent countersigns the Company's Opening Date for the Phase II
Project pursuant to Section 6.4 of the Disbursement Agreement acknowledging
that the Opening Conditions have been satisfied.
"Phase II Primary Contractor" means a Contractor reasonably
acceptable to the Majority of the Arrangers that enters into the Phase II
Primary Construction Contract with the Company to build the Phase II Project.
"Phase II Primary Construction Contract" means one or more
guaranteed, fixed price construction contracts to be entered into by the
Company and a Phase II Primary Contractor for the construction of the Phase II
Project in form and substance reasonably satisfactory to the Majority of the
Arrangers.
"Phase II Project" means Encore at Wynn Las Vegas, a hotel
and casino complex to be developed on the Site and integrated with the Phase I
Project, as more particularly described in Exhibit Q-2 to the Disbursement
Agreement.
"Phase II Project Budget" means the budget for the Phase II
Project delivered by the Company and approved by the Majority of the Arrangers
pursuant to Section 3.4.2 of the Disbursement Agreement, and as amended from
time to time in accordance with Section 6.3 of the Disbursement Agreement.
"Phase II Project Schedule" means the construction schedule
for the Phase II Project delivered by the Company and approved by the Majority
of the Arrangers pursuant to Section 3.4.3 of the Disbursement Agreement, as
from time to time in accordance with Section 6.3 of the Disbursement
Agreement.
"Phase II Revolving Commitment Sunset Date" means June 30,
2005.
"Phase II Scheduled Completion Date" means the completion
date for the Phase II Project set forth in the Phase II Project Schedule
delivered by the Company and approved by the Majority of the Arrangers
pursuant to Section 3.4.3 of the Disbursement Agreement, as the same may from
time to time be extended pursuant to Section 6.3 of the Disbursement
Agreement.
"Phase II Scheduled Opening Date" means the opening date for
the Phase II Project set forth in the Phase II Project Schedule delivered by
the Company and approved by the Majority of the Arrangers pursuant to Section
3.4.3 of the Disbursement Agreement, as the same may from time to time be
extended pursuant to Section 6.3 of the Disbursement Agreement.
"Phase II Summary Anticipated Cost Report" means an
anticipated cost report substantially in the form of Exhibit F-5 to the
Disbursement Agreement and which provides the information indicated therein
with respect to the Phase II Project segregated by each Line Item Category.
"Phase II Twenty-Five Percent Completion Date" means the
date on which the following conditions shall have been satisfied as set forth
in the Phase II Twenty-Five Percent Completion Date Certificate delivered by
the Company and (other than with respect to clause (b)(B) below) confirmed by
the Construction Consultant in its Phase II Twenty-Five Percent Completion
Date Certificate: (a) 25% of the work required to achieve completion of the
Phase II Project has been completed (determined by (i) the amount of Hard
Costs incurred to such date under the Phase II Project Budget (excluding those
allocated to the "Owner FF&E" Line Item Category and any other Hard Costs
reasonably approved by the Construction Consultant), as compared to (ii) the
total amount of Hard Costs set forth in the Phase II Project Budget (as then
in effect) (excluding those allocated to the "Owner FF&E" Line Item Category
and any other Hard Costs reasonably approved by the Construction Consultant)
and (b) all Contractors and Subcontractors have been paid in full or will be
paid in full with the pending Advance Request for work performed with respect
to the Phase II Project through such date (other than (A) Retainage Amounts,
and other amounts, that, as of the Phase II Twenty-Five Percent Completion
Date, are being withheld from the Contractors and Subcontractors in accordance
with the provisions of the Project Documents, and (B) amounts being contested
in accordance with the Financing Agreements so long as adequate reserves have
been established through an allocation in the Phase II Anticipated Cost Report
and in accordance with any requirements of such Financing Agreements) and have
provided lien waivers to the extent required under Section 3.2.7 of the
Disbursement Agreement for all work performed prior to the Phase II
Twenty-Five Percent Completion Date.).
"Phase II Twenty-Five Percent Completion Date Certificates"
means the certificates issued by the Company and the Construction Consultant
in the form of Exhibits R-2 and R-3 to the Disbursement Agreement.
"Plans and Specifications" means all plans, specifications,
design documents, schematic drawings and related items for the design,
architecture and construction of each Project that are listed on Exhibit Q-4
including, from time to time, any further such plans, specifications, design
documents, schematic drawings and related items which are consistent with the
standards of Exhibit Q-4 and delivered pursuant to Section 3.2.11 and Section
3.4.6 of the Disbursement Agreement, in each case, as amended in accordance
with Section 6.2 of this Disbursement Agreement.
"Potential Event of Default" means (i) any event which with
the giving of notice, the lapse of time, or both, would constitute an Event of
Default and (ii) the occurrence of any "Default" under any Facility Agreement.
"Primary Contractors" means, collectively, the Phase I
Primary Contractor and the Phase II Primary Contractor.
"Primary Construction Contracts" means, collectively, the
Phase I Primary Construction Contract and the Phase II Primary Construction
Contract.
"Project(s)" means, collectively, the Phase I Project and
the Phase II Project; provided, however, that, if the Phase II Approval Date
has not occurred on or before the Phase II Revolving Commitment Sunset Date,
then "Project(s)" shall mean solely the Phase I Project.
"Project Architects" means the Phase I Architect and the
Phase II Architect.
"Project Budget" means collectively, the Phase I Project
Budget and, from and after the Phase II Approval Date, the Phase II Project
Budget.
"Project Budget/Schedule Amendment Certificate" means a
certificate substantially in the form of Exhibit E to the Disbursement
Agreement delivered from time to time in accordance with Section 6.3 of the
Disbursement Agreement. "Project Certificate of Occupancy" means a permanent
certificate of occupancy or a temporary certificate of occupancy, in either
case, for any Project issued by the Building Department pursuant to applicable
Legal Requirements which permanent or temporary certificate of occupancy shall
permit such Project to be used for the Project Intended Uses, shall be in full
force and effect and, in the case of a temporary certificate of occupancy, if
such temporary certificate of occupancy shall provide for an expiration date,
the number of days in the period from the Opening Date of such Project to such
expiration date shall be not less than 133% of the number of days that the
Construction Consultant, pursuant to the applicable Opening Date Certificate,
estimates it will take to complete the Project Punchlist Items with respect to
such Project (assuming reasonable diligence in performing the same).
"Project Costs" means all costs incurred or to be incurred
in accordance with the Project Budgets (other than Operating Costs with
respect to the Phase I Project incurred from and after the Phase I Opening
Date and Operating Costs with respect to the Phase II Project incurred from
and after the Phase II Opening Date), which costs shall include, but not be
limited to: (a) all costs incurred under the Contracts, (b) Debt Service
accruing with respect to Advances made under the Bank Credit Agreement or from
the 2014 Notes Proceeds Account to pay Project Costs allocated (i) to either
Project under the applicable Project Budget prior to the Phase I Opening Date
and (ii) to Phase II Project under the Phase II Project Budget from and after
the Phase I Opening Date, (c) reasonable financing, closing and administration
costs related to each Project until the Completion Date for such Project
including, but not limited to, insurance costs (including, with respect to
directors and officers insurance costs, costs relating to such insurance
extending beyond the Phase I Completion Date for such Project), guarantee
fees, legal fees and expenses, financial advisory fees and expenses, technical
fees and expenses (including, without limitation, fees and expenses of the
Construction Consultant and the Insurance Advisor), commitment fees,
management fees, and corporate overhead agency fees (including, without
limitation, fees and expenses of the Disbursement Agent), interest (other than
amounts listed in clause (b) above), taxes (including value added tax), and
other out-of-pocket expenses payable by the Company under all documents
related to the financing and administration of the Phase I Project until the
Phase I Opening Date and the Phase II Project until the Phase II Opening Date,
(d) the costs of acquiring Permits for the Phase I Project prior to the Phase
I Completion Date and the Phase II Project prior to the Phase II Completion
Date, (e) costs incurred in settling insurance claims in connection with
Events of Loss and collecting Loss Proceeds at any time prior to the Last
Project Final Completion Date, (f) working capital costs incurred in
accordance with the Phase I Project Budget prior to the Phase I Opening Date
and the Phase II Project Budget prior to the Phase II Opening Date, (g) cash
to collateralize commercial letters of credit to the extent that payment of
any such cash amount to the vendor or materialman who is the beneficiary of
such letter of credit would have constituted a "Project Cost"; provided that
the aggregate amount of all such letters of credit outstanding at any one time
shall not exceed $25,000,000.
"Project Credit Support Providers" means the Construction
Guarantor, the Completion Guarantor, the issuers of any Phase I Primary
Contractor Payment and Performance Bond and the issuer of any Payment and
Performance Bond for the Phase II Primary Contractor.
"Project Documents" has the meaning given in the Bank Credit
Agreement.
"Project Intended Uses" means the intended uses of the
Projects, as more particularly set forth in Exhibits Q-1 and Q-2 to the
Disbursement Agreement.
"Project Liquidity Reserve Account" means the account
referenced in Section 2.2.8 of the Disbursement Agreement and established
pursuant to the Company Disbursement Collateral Account Agreement.
"Project Punchlist Completion Amount" means, from time to
time from and after the Completion Date, the estimated cost to complete all
remaining Project Punchlist Items if the owner of the Project were to engage
independent, reputable and appropriately experienced and licensed
contractor(s) to complete such work and no other work (certified by the
Company and the Construction Consultant with respect to each Advance from and
after the Completion Date for such Project in their respective certificates in
the form of Exhibits C-1 and C-2 to the Disbursement Agreement).
"Project Punchlist Items" means, with respect to either
Project, minor or insubstantial details of construction or mechanical
adjustment, the non-completion of which, when all such items are taken
together, will not interfere in any material respect with the use or occupancy
of such Projects (or any Project) for the Project Intended Uses or the ability
of the owner or master lessee, as applicable, of any portion of such Projects
(or any tenant thereof) to perform work that is necessary or desirable to
prepare such portion of such Projects for such use or occupancy; provided
that, in all events, "Project Punchlist Items" shall include (to the extent
not already completed), without limitation, the items set forth in the
punchlist to be delivered by the Company in connection with "substantial
completion" under the Primary Construction Contracts and all items that are
listed on the "punchlists" furnished by the Building Department, the Nevada
Department of Transportation or the Clark County Department of Public Works in
connection with, or after, the issuance of the Projects temporary certificate
of occupancy as those that must be completed in order for the Building
Department to issue such Project a permanent certificate of occupancy.
"Project Schedule" means, collectively, the Phase I Project
Schedule and, from and after the Phase II Approval Date, the Phase II Project
Schedule.
"Project Security" means all real and personal property
which is subject or is intended to become subject to the security interests or
liens granted by any of the Security Documents.
"Projections" means the consolidated statements of projected
cash flow, projected debt service and projected income of the Company and its
consolidated Subsidiaries through the seventh anniversary of the Closing Date
(including the Phase I Project and the Phase II Project).
"Protective Advances" means any Advances with respect to (i)
the payment of any delinquent taxes or insurance premiums owed by any of the
Company or its Affiliates with respect to the Projects or other Mortgaged
Property, (ii) the removal of any lien or encumbrance on the Projects or the
Mortgaged Property or the defense of Company's or any of its Affiliates' title
thereto or of the validity, enforceability, perfection or priority of the
liens and security interests granted or purported to be granted pursuant to
the Security Documents, (iii) the payment of Project Costs after delivery of a
Stop Funding Notice by the Disbursement Agent, or (iv) the repair,
maintenance, protection or preservation of the value of the Projects or any
portion thereof, including, without limitation, for payment of heating, gas,
electric and other utility bills.
"Realized Savings" means, with respect to each Line Item
Category, a decrease in the anticipated cost to complete the work contemplated
by such Line Item Category as demonstrated by the Company to the reasonable
satisfaction of the Disbursement Agent and the Construction Consultant, and
reflected through an amendment of the applicable Project Budget pursuant to
Section 6.3 of the Disbursement Agreement. In addition, prior to the Phase I
Completion Date, no Realized Savings obtained with respect to Line Item
Categories allocated to the Phase I Project in the Phase I Project Budget may
be applied to Line Item Categories allocated to the Phase II Project in the
Phase II Project Budget. At no time may Realized Savings obtained with respect
to Line Item Categories allocated to the Phase II Project in the Phase II
Project Budget be applied to Line Item Categories allocated to the Phase I
Project in the Phase I Project Budget.
"Remaining Costs" means, at any given time for any Line Item
Category or Line Item (other than the "Construction Contingency" Line Item
Category), the "Balance to Complete (Net Amount)" set forth in column N of the
Monthly Requisition Report (as in effect from time to time); provided,
however, that any Remaining Costs which, after a particular date (such as the
Phase I Opening Date), do not constitute Project Costs for such Project in
accordance with the definition of "Project Costs" shall be disregarded for
purposes of calculating whether the Project is In Balance.
"Representatives of the Initial Purchasers" means Deutsche
Bank Securities, Inc. and Banc of America Securities LLC.
"Required Contractor and Architect Advance Certificates"
means (a) with respect to the Phase I Project, the Phase I Required Contractor
and Architect Advance Certificates and (b) with respect to the Phase II
Project, the Phase II Major Contractors Advance Certificates and Phase II
Major Architects Advance Certificates.
"Required Phase I Minimum Contingency" means (a) from time
to time prior to the Phase I Opening Date, $5,000,000; and (c) from time to
time after the Phase I Opening Date, the sum of (x) 150% of the Project
Punchlist Completion Amount for the Phase I Project, plus (y) until the Phase
I Completion Date, $500,000.
"Required Phase II Minimum Contingency" means:
(a) initially, from time to time prior to the Phase II
Twenty-Five Percent Completion Date, seventy-five percent of the amount set
forth in the "Phase II Contingency" Line Item Category of the Phase II Project
Budget approved by the Majority of the Arrangers pursuant to Section 3.4;
(b) from time to time after the Phase II Twenty-Five
Percent Completion Date and prior to the Phase II Opening Date, the amount
determined pursuant to the following formula:
RMC = (IC - $1,500,000) * (1.00 - (PC/100)) + $1,500,000
Where:
(1) RMC = Required Phase II Minimum Contingency;
(2) IC = the amount set forth in the "Phase II
Contingency" Line Item Category of the Phase II Project Budget approved by the
Majority of the Arrangers pursuant to Section 3.4 of the Disbursement Agreement;
(3) PC = Percentage of the Project completed as of the
calculation date based upon the Hard Costs incurred as of such date in
accordance with the Project Budget (excluding those allocated to the "Owner
FF&E" Line Item Category and any other Hard Costs reasonably approved by the
Construction Consultant) compared to the total amount set forth such Line Item
Categories in the Project Budget );
provided, however, that if RMC calculated pursuant to the
following formula is greater than the amount set forth in clause (a) above,
then the "Required Phase II Minimum Contingency" shall be deemed to equal the
amount set forth in clause (a) above.
For example, if the amount of the "Phase II Contingency"
Line Item in the approved Phase II Project Budget is $10,000,000 and, as of
the calculation date, the Twenty-Five Percent Completion Date has occurred and
fifty percent (50%) of the Hard Costs allocated to the foregoing Line Item
Categories have been incurred in accordance with the Phase II Project Budget
(PC=50), then RMC = ($10,000,000 - $1,500,000) * (1.00-(30/100)) + $1,500,000=
$8,500,000 * 0.50 + $1,500,000 = $5,750,000.
(c) from time to time after the Phase II Opening Date,
the sum of (x) 150% of the Project Punchlist Completion Amount for the Phase II
Project plus (y) until the Phase II Completion Date (if the Company has elected
to build the Retail Facility), $500,000.
"Required Scope Change Approval" means, with respect to each
proposed Scope Change, each of the following: (a) the consent of the
Construction Consultant, and (b) the consent of the Bank Agent.
"Reserved Amounts" means, collectively, the portion, if any,
of the Completion Guaranty Deposit Account to be reserved to pay Project
Punchlist Items and/or disputed amounts pursuant to clauses (d)(i) and (ii) of
the definition of "Completion Guaranty Release Conditions" after giving effect
to (a) any amounts then on deposit in the Company's Funds Account and the Bank
Proceeds Account and (b) any amounts then available under the Bank Revolving
Credit Facility to pay Project Costs allocated to the Phase I Project in the
Phase I Budget.
"Responsible Officer" means as to any Person, the chief
executive officer, president or chief financial officer of such Person or such
Person's member if such Person is a member-managed limited liability company,
but in any event, with respect to financial matters, the chief financial
officer of such Person.
"Retail Facility" means an up to approximately 60,000 square
foot retail facility adjoining the Projects on the Site (other than any retail
facility included in the Plans and Specifications for the Phase I Project in
effect on the Closing Date).
"Retainage Amounts" means at any given time amounts which
have accrued and are owing under the terms of a Contract for work or services
already provided but which at such time (and in accordance with the terms of
the Contract) are being withheld from payment to the Contractor, until certain
subsequent events (e.g., completion benchmarks) have been achieved under the
Contract.
"S&P" means Standard & Poor's Ratings Group, a New York
corporation, or any successor thereof.
"Scope Change" means any change in the Plans and
Specifications or any other change to the design, layout, architecture or
quality of the Projects from that which is contemplated on the Closing Date,
(unless such change is required by Legal Requirements), including, without
limitation, (a) changes to the "Premises and Assumptions" (as defined in the
Phase I Primary Construction Contract), (b) approval or submission to the
Phase I Primary Contractor of "Drawings" or "Specifications" (each as defined
in the Phase I Primary Construction Contract) that are inconsistent with the
Premises and Assumptions, (c) additions, deletions or modifications in the
"Work" (as defined in the Phase I Primary Construction Contract) (including,
without limitation, the acceptance of any non-conforming "Work" (as defined in
the Phase I Primary Construction Contract) pursuant to Section 10.9 of the
Phase I Primary Construction Contract), (d) the issuance of a "Construction
Change Directive" (as defined in the Phase I Primary Construction Contract)
directing a "Change" (as defined in the Phase I Primary Construction Contract)
in the work and a proposed basis for adjustments, if any, in the "Guaranteed
Maximum Price" (as defined in the Phase I Primary Construction Contract) or
"Contract Time" (as defined in the Phase I Primary Construction Contract), or
any combination of them, (e) modifications to the "Drawings" (as defined in
the Phase I Architect's Agreement) to the extent the same constitute an
"Additional Service" under the Phase I Architect's Agreement and (f) any other
similar changes, modifications or directives entered into or issued under the
Phase II Primary Construction Contract or the Phase II Architect's Agreement.
"Secured Parties" means the Bank Agent, the 2014 Notes
Indenture Trustee, the Bank Lenders, the 2014 Noteholders, the Collateral
Agent, the Nevada Collateral Agent, the counterparties to any Interest Rate
Agreements entered into by the Company under the Bank Credit Agreement (to the
extent that the Credit Agreement permits such Interest Rate Agreements to be
secured) and the Disbursement Agent acting on behalf of any one or more of the
foregoing.
"Securities Intermediary" means Deutsche Bank Trust Company
Americas in its capacity as securities intermediary under the Company
Disbursement Collateral Account Agreement and the Completion Guaranty
Collateral Account Agreement and Bank of America, N.A. in its capacity as bank
under the Local Company Collateral Account Agreements and its successors in
such capacity.
"Security Agreement" means that certain Pledge and Security
Agreement dated as of December 14, 2004 executed by the Company and each other
Loan Party, in favor of the Collateral Agent.
"Security Documents" means, collectively and without
duplication, the Deeds of Trust, the Security Agreement, the Bank
Environmental Indemnity Agreements, the 2014 Notes Environmental Indemnity
Agreements, the Collateral Agency Agreement, the IP Security Agreement, the
Bank Guarantee, the Completion Guaranty, the Construction Guaranty, each
Payment and Performance Bond, the Collateral Account Agreements, the Consents,
and any other deeds of trust, security agreements or collateral account
agreements entered into by any of the Loan Parties and/or one or more of their
direct or indirect Subsidiaries for the benefit of any Secured Party in
accordance with the terms of the Financing Agreements or the Intercreditor
Agreements.
"Shuttle Easement" means that certain Easement Agreement
dated as of December 14, 2004 by Wynn Golf, as grantor, and the Company, as
grantee.
"Site" means all or any portion of the Projects, as
described in Exhibit Q-3 to the Disbursement Agreement and any other real
property which is subject to a lien under any Deeds of Trust. The Site
includes the Golf Course Land, the Wynn Home Site, the Home Site Land and the
Koval Land until such time (if ever) as the release conditions set forth in
Section 7.5 of the Bank Credit Agreement and Section 10.03 of the 2014 Notes
Indenture shall have been satisfied,.
"Site Easements" means the easements appurtenant, easements
in gross, license agreements and other rights running for the benefit of the
Company and/or appurtenant to the Site, including, without limitation, those
certain easements and licenses described in the Title Policy. The Site
Easements include the Golf Course Land Easements until such time (if ever) as
the release conditions set forth in Section 7.5 of the Bank Credit Agreement
and Section 10.03 of the 2014 Notes Indenture shall have been satisfied.
"Soft Costs" means:
(a) with respect to the Phase I Project, the Project
Costs set forth in the Phase I Project Budget under the following Line Items or
Line Item Categories:
(i) Capitalized Interest and Commitment Fees;
(ii) Pre-Opening Expense;
(iii) Transaction Fees and Expenses;
(iv) Design and Engineering Fees;
(v) Working Capital Requirements at Opening;
(vi) Entertainment Production;
(vii) Insurance/Utilities/Security;
(viii) Property Taxes;
(ix) Government Approvals and Permits; and
(x) Miscellaneous Operating Costs.
(a) with respect to the Phase II Project, the Line Items
and Line Item Categories set forth in the Phase II Project Budget delivered by
the Company pursuant to Section 3.4.2 and designated by the Company to be
associated with Soft Costs (which designation shall be reasonably acceptable to
the Disbursement Agent and the Construction Consultant and substantially
similar to those designated as Soft Costs for the Phase I Project under clause
(a) above).
"Stop Funding Notice" has the meaning given in Section
2.3.2(b) of the Disbursement Agreement.
"Stop Funding Request" has the meaning given in Section
2.3.3(b) of the Disbursement Agreement.
"Subcontract" means any subcontract or purchase order
entered into with any Subcontractor.
"Subcontractor" means any direct or indirect subcontractor
of any tier under any Contract.
"Subsidiary" as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the happening of
a contingency) to elect a majority of the directors, managers or trustees of
such corporation, partnership, limited liability company or other entity are
at the time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Disbursement Agreement shall refer to a Subsidiary or
Subsidiaries of the Company.
"Summary Anticipated Cost Reports" means, collectively, the
Phase I Summary Anticipated Cost Report and, from and after the Phase II
Approval Date, the Phase II Summary Anticipated Cost Report.
"Tax" shall mean shall mean any federal, state, local,
foreign or other tax, levy, impost, fee, assessment or other government
charge, including without limitation income, estimated income, business,
occupation, franchise, property, payroll, personal property, sales, transfer,
use, employment, commercial rent, occupancy, franchise or withholding taxes,
and any premium, including without limitation interest, penalties and
additions in connection therewith.
"Third Party Claims" has the meaning given in Section 10.3
of the Disbursement Agreement.
"Title Insurer" means Commonwealth Land Title Company.
"Title Policies" means, collectively, the policies of title
insurance issued by Title Insurer as of the Closing Date, as provided in
Section 3.1.26 of the Disbursement Agreement, including all amendments
thereto, endorsements thereof and substitutions or replacements therefor.
"2014 Notes" means the 6-5/8% First Mortgage Notes Due 2014
in the aggregate principal amount of $1.3 billion issued by the Company and
Capital Corp., as co-issuers, pursuant to the 2014 Notes Indenture.
"2014 Notes Environmental Indemnity Agreements" means those
certain Indemnity Agreement dated as of December 14, 2004 and made by each of
the Company, Wynn Golf and Wynn Sunrise for the benefit of the 2014 Notes
Indenture Trustee and certain other indemnified parties.
"2014 Notes Indenture" means that certain First Mortgage
Notes Indenture dated as of December 14, 2004 among the Company, Capital
Corp., the guarantors signatory thereto, and the 2014 Notes Indenture Trustee.
"2014 Notes Indenture Trustee" means U.S. Bank National
Association, in its capacity as the initial trustee under the 2014 Notes
Indenture and its successors in such capacity.
"2014 Notes Proceeds" means the amounts deposited in the
2014 Notes Proceeds Account on the Closing Date.
"2014 Notes Proceeds Account" means the account referenced
in Section 2.2 of the Disbursement Agreement and established pursuant to the
Company Disbursement Collateral Account Agreement.
"Unallocated Phase I Contingency Balance" means, from time
to time, the amount of the "Phase I Construction Contingency" Line Item
Category as set forth in the Phase I Project Budget then in effect.
"Unallocated Phase II Contingency Balance" means, from time
to time, the amount of the "Phase II Construction Contingency" Line Item
Category as set forth in the Phase II Project Budget then in effect.
"Unincorporated Materials" has the meaning given in Section
3.2.19 of the Disbursement Agreement.
"Water Access Easement" means that certain Access Easement
Agreement dated as of December 14, 2004 by Wynn Golf, as grantor, and the
Company, as grantee.
"Wynn Golf" means Wynn Golf, LLC, a Nevada limited liability
company.
"Wynn Golf Deed of Trust" means that certain Deed of Trust
dated as of December 14, 2004 between Wynn Golf, as trustor, and Nevada Title
Company, as trustee, for the benefit of the Collateral Agent, as beneficiary.
"Wynn Golf Permitted Encumbrances" has the meaning given in
Section 3.1.26 of the Disbursement Agreement.
"Wynn Home Site" means the approximately two acre tract of
land located on the Golf Course where Stephen A. Wynn's personal residence may
be built after release of the Wynn Home Site in accordance with Section 7.5 of
the Bank Credit Agreement and Section 10.03 of the 2014 Notes Indenture.
"Wynn Las Vegas Deed of Trust" means that certain Deed of
Trust dated as of December 14, 2004 between the Company, as trustor, and
Nevada Title Company, as trustee, for the benefit of the Collateral Agent, as
beneficiary.
"Wynn Las Vegas Permitted Encumbrances" has the meaning
given in Section 3.1.26 of the Disbursement Agreement.
"Wynn Show Performers" means Wynn Show Performers, LLC, a
Nevada limited liability company.
"Wynn Sunrise" means Wynn Sunrise, LLC, a Nevada limited
liability company.
"Wynn Sunrise Deed of Trust" means that certain Deed of
Trust dated as of December 14, 2004 between Wynn Sunrise, as trustor, and
Nevada Title Company, as trustee, for the benefit of the Collateral Agent, as
beneficiary.
"Wynn Sunrise Easements" means the easements appurtenant,
easements in gross, license agreements and other rights running for the
benefit of the Company, or Wynn Sunrise and/or appurtenant to the Wynn Sunrise
Land, including, without limitation, those certain easements and licenses
described in the Title Policy.
"Wynn Sunrise Land" means the land owned by Wynn Sunrise, as
more particularly described in Part B of Exhibit Q-3 to the Disbursement
Agreement.
"Wynn Sunrise Permitted Encumbrances" has the meaning given
in Section 3.1.26 of the Disbursement Agreement.
RULES OF INTERPRETATION
-----------------------
The following rules of interpretation shall apply to the
Disbursement Agreement and this Exhibit A unless otherwise required by the
context or as specifically provided:
1. Words in the singular include the plural and words in the
plural includes the singular.
2. The word "or" is not exclusive.
3. A reference to a Legal Requirement includes any amendment
or modification of such Legal Requirement, and all regulations, rulings and
other Legal Requirements promulgated under such Legal Requirement unless, in
any case, otherwise provided in such statute or the Disbursement Agreement.
4. A reference to a Person includes its permitted successors
and permitted assigns.
5. Accounting terms have the meanings assigned to them by
generally accepted accounting principles in the United States of America, as
in effect from time to time, as applied by the accounting entity to which they
refer.
6. A reference to "including" means including without
limiting the generality of any description preceding such term.
7. A reference in the Disbursement Agreement to an article,
section, exhibit, schedule, annex part, clause, paragraph, party, appendix or
other attachment is to the article, section, exhibit, schedule, annex, part,
clause, paragraph, party, appendix or other attachment of such document unless
otherwise indicated in such document
8. References to any document, instrument or agreement (a)
shall include all exhibits, schedules and other attachments thereto, (b) shall
include all documents, instruments or agreements issued or executed in
replacement thereof, and (c) shall mean, unless specifically indicated, such
document, instrument or agreement as in effect on the date hereof,
notwithstanding any termination, such expiration or amendment of such
agreement unless all of the parties to the Disbursement Agreement are
signatories to such amendment or unless the signatories of such amendment have
the right to amend the Disbursement Agreement without the consent of the other
parties to the Disbursement Agreement, in which case any references shall be
to such agreement as so amended.
9. The words "hereof," "herein" and "hereunder" and words of
similar import when used in the Disbursement Agreement shall refer to such
document as a whole and not to any particular provision of such document.
10. References to "days" shall mean calendar days, unless
the term "Banking Days" shall be used.
11. The Financing Agreements are the result of negotiations
among, and have been reviewed by, the Company, the Company's subsidiaries, the
Funding Agents, the Lenders and the Disbursement Agent. Accordingly, the
Financing Agreements shall be deemed to be the product of all parties thereto,
and no ambiguity shall be construed in favor of or against any such Person.
12. Words referring to a gender include any gender.
13. The headings, subheadings and tables of contents are
solely for convenience of reference and shall not constitute a part of any
such document nor shall they affect the meaning, construction or effect of any
provision thereof nor shall they modify, define, expand or limit any of the
terms or provisions thereof.
14. A reference to a particular section, paragraph or other
part of a particular statute shall be deemed to be a reference to any other
section, paragraph or other part substitute therefor from time to time unless
otherwise specified.
15. If a capitalized term describes, or shall be defined by
reference to, a document, instrument that has not as of any particular date
been executed and delivered and such document, instrument or agreement is
attached as an exhibit to the Disbursement Agreement, such reference shall be
deemed to be such form and, following such execution and delivery and subject
to paragraph 8 above, to the document, instrument or agreement as so executed
and delivered.
Exhibit 10.4
EXECUTION VERSION
INTERCREDITOR AGREEMENT
by and among
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Bank Agent
and
U.S. BANK NATIONAL ASSOCIATION,
as 2014 Notes Indenture Trustee
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Agent
December 14, 2004
TABLE OF CONTENTS
Page
----
1. Definitions and General Provisions.......................................................................2
1.1 Definitions.....................................................................................2
1.2 Interpretation.................................................................................14
2. Collateral Agent........................................................................................14
2.1 Appointment....................................................................................14
2.2 Nature of Duties...............................................................................14
2.3 Lack of Reliance on the Collateral Agent.......................................................15
2.4 Certain Rights of the Collateral Agent; Pari Passu in Priority of Liens;
Separate Collateral............................................................................15
2.5 Reliance.......................................................................................16
2.6 Indemnification................................................................................16
2.7 Collateral Agent in its Individual Capacity....................................................17
2.8 Holders........................................................................................17
2.9 Resignation and Removal of the Collateral Agent................................................17
3. Collateral, Priority of Liens, Subordination and Release................................................18
3.1 Liens and Security Interests...................................................................18
3.2 Separate Collateral............................................................................19
3.3 Confirmation of Liens..........................................................................19
4. Rights and Limitation of Actions With Respect to Collateral.............................................19
4.1 Rights and Limitations Applicable to Second Lien Secured Parties...............................19
4.2 Rights and Limitations Applicable to the First Lien Secured Parties............................22
4.3 Notification of Events of Default..............................................................23
4.4 Certain Waivers by Second Lien Secured Parties.................................................24
5. Rights and Limitations with Respect to Amendments, Waivers and Other Actions
Under Facility Agreements..24
5.1 Rights and Limitations Applicable to Second Lien Secured Parties...............................24
5.2 Rights and Limitations Applicable to the First Lien Secured Parties............................24
5.3 Waivers and Deferrals of Payments..............................................................26
5.4 Limitation of Liability........................................................................26
6. Insolvency or Liquidation Proceedings...................................................................27
6.1 Right to File Involuntary Bankruptcy...........................................................27
6.2 Certain Agreements and Consents by Second Lien Secured Parties.................................27
6.3 Avoidance of Bank Secured Obligations in Bankruptcy............................................30
6.4 No Other Restrictions on Second Lien Secured Parties...........................................31
7. Default Purchase Option.................................................................................31
8. Application of Proceeds of Shared Collateral............................................................32
8.1 Application of Proceeds Generally..............................................................32
8.2 Certain Terms..................................................................................34
8.3 Sharing of Non-Pro Rata Payments...............................................................34
8.4 Overpayments...................................................................................35
8.5 Payment to Class Representatives...............................................................35
9. Representations and Warranties..........................................................................35
9.1 Organization...................................................................................35
9.2 Authorization..................................................................................35
9.3 Binding Agreement..............................................................................35
9.4 No Consent Required............................................................................36
9.5 No Conflict....................................................................................36
10. Miscellaneous Provisions................................................................................36
10.1 Notices; Addresses.............................................................................36
10.2 Further Assurances.............................................................................37
10.3 Waiver.........................................................................................37
10.4 Entire Agreement...............................................................................37
10.5 Governing Law..................................................................................37
10.6 Severability...................................................................................38
10.7 Headings.......................................................................................38
10.8 Limitations on Liability.......................................................................38
10.9 Consent of Jurisdiction........................................................................38
10.10 Successors and Assigns.........................................................................38
10.11 Counterparts...................................................................................39
10.12 No Third Party Beneficiaries...................................................................39
10.13 Co-Collateral Agents; Separate Collateral Agents...............................................39
10.14 Amendments.....................................................................................40
10.15 Additional Secured Parties.....................................................................41
10.16 Trust Indenture Act............................................................................41
10.17 Reinstatement..................................................................................41
10.18 Attorneys' Fees................................................................................42
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT is made as of December 14, 2004 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, this "AGREEMENT"), by and among (i) 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"), (ii) U.S. BANK NATIONAL ASSOCIATION, a
national banking 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"), and (iii) the Collateral Agent (as hereinafter
defined).
RECITALS:
A. PHASE I PROJECT. Wynn Las Vegas, LLC, a Nevada limited liability
company (the "Company"), is constructing and plans to own and operate 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 may develop, construct, own and
operate an expansion of the Phase I Project, consisting of an approximately
1,500-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. Concurrently herewith, 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 an
Indenture (as amended, amended and restated, supplemented or otherwise modified
from time to time, the "2014 NOTES INDENTURE"), pursuant to which the Company
and Capital Corp. will issue the 2014 Notes, as more particularly described
therein.
D. BANK CREDIT FACILITY. Concurrently herewith, the Company, the Bank
Agent, the Bank Lenders and the other parties thereto have entered into 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, as
more particularly described therein.
E. COLLATERAL. In addition to certain other collateral and security
interests, (a) the Bank Credit Facility is secured by a first priority lien on
the Bank Separate Collateral and the Shared Collateral and (b) the 2014 Notes
are secured by a first priority lien on the 2014 Notes Separate Collateral and
the Shared Collateral, all as more particularly described in Section 3.
F. DISBURSEMENT AGREEMENT. The Company, the Bank Agent, the 2014 Notes
Indenture Trustee and the Disbursement Agent, have entered into the Master
Disbursement Agreement as of even date herewith (as amended, amended and
restated, supplemented or otherwise modified from time to time, 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
Bank Credit Facility and the 2014 Notes and from the Company's Funds Account
and (b) the conditions precedent to the Closing Date, to the initial Advance
and to subsequent Advances.
G. INTERCREDITOR AGREEMENT. The Project Credit Parties desire to enter
into this Agreement in order to (a) appoint the Collateral Agent as their agent
for purposes of entering into the Shared Security Documents and to receive,
maintain, administer, enforce and distribute the Shared Collateral and the
Separate Collateral as provided herein and therein and (b) set forth certain
provisions relating to the Project Credit Parties' respective rights in the
Collateral, the exercise of remedies upon the occurrence of an event of
default, the application of proceeds of enforcement and certain other matters.
NOW, THEREFORE, with reference to the foregoing recitals and in
reliance thereon, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS AND GENERAL PROVISIONS.
1.1 DEFINITIONS. Except as otherwise expressed and provided herein,
all capitalized terms used in this Agreement and its Exhibits and not otherwise
defined herein shall have the meanings given to such terms in the Disbursement
Agreement. Except as set forth herein, the rules of interpretations set forth
in Exhibit A to the Disbursement Agreement shall apply.
1.1.1 OTHER TERMS. The following terms have the meanings set
forth below:
"2014 NOTEHOLDERS" means the holders of the 2014 Notes.
"2014 NOTES" means all notes (including Exchange Notes, as defined
in the 2014 Notes Indenture) issued by the Company and Capital Corp., as
co-issuers, pursuant to the 2014 Notes Indenture, whether on or after the
Closing Date.
"2014 NOTES INDENTURE" has the meaning given in the recitals
hereto.
"2014 NOTES INDENTURE TRUSTEE" has the meaning given in the
preamble hereto.
"2014 NOTES SECURED OBLIGATIONS" means all Obligations of the
Company Group to or for the benefit of the 2014 Notes Indenture Trustee or the
2014 Noteholders under the 2014 Notes Indenture, the 2014 Notes, the First Lien
Security Documents and any other agreement, document or instrument entered into
or delivered by any member of the Company Group on, prior to, or after the
Closing Date with or to or for the benefit of the Collateral Agent, the 2014
Notes Indenture Trustee or the 2014 Noteholders in connection with the
financing of either or both Projects.
"2014 NOTES SEPARATE COLLATERAL" means the 2014 Notes Proceeds
Account Collateral and any other property or assets of the Company Group which
has been pledged to secure the 2014 Notes Secured Obligations but not the Bank
Secured Obligations, Obligations under any Permitted Additional Senior Secured
Debt Agreement or the Second Lien Secured Obligations.
"ACCOUNT COLLATERAL" or "ACCOUNTS COLLATERAL" means, collectively,
all of the Company Accounts and all amounts on deposit therein, any interest
earned thereon, and any investments of such amounts made pursuant to the
Collateral Account Agreements and any proceeds of the foregoing. When the term
"Collateral" is used in conjunction with a specified Account (e.g., the
"Disbursement Account Collateral"), said Account Collateral means the specified
account and all amounts on deposit therein, any interest earned thereon, and
any investments of such amounts made pursuant to the applicable Collateral
Account Agreement, and any proceeds of the foregoing, except to the extent such
proceeds are deposited into another Account pursuant to the terms of the
Disbursement Agreement or the applicable Collateral Account Agreement.
"AGREEMENT" has the meaning given in the preamble hereto.
"BANK AGENT" has the meaning given in the preamble hereto.
"BANK CREDIT AGREEMENT" means the Credit Agreement, dated as of the
date hereof, among the Company, the Bank Agent, the Bank Lenders and the other
parties hereto, as the same may be amended, modified, extended, renewed,
restated or supplemented from time to time, and including any agreement
extending the maturity of, or refinancing or restructuring (including, but not
limited to, the inclusion of additional borrowers or guarantors thereunder or
any increase in the amount borrowed) of all or any portion of, the indebtedness
under such agreement or any successor agreements, whether or not with the same
agent, trustee, representative, lenders or holders; provided that, with respect
to any agreement providing for such refinancing or replacement of indebtedness
under the Bank Credit Agreement, such agreement shall only be treated as the
Bank Credit Agreement hereunder if (a) it represents all of the obligations
thereunder and (b) a representative of the Bank Lenders under any refinancing
or replacement indebtedness (that either replaces or refinances in full the
Bank Credit Agreement or represents the refinancing or replacement indebtedness
with the largest aggregate amount of indebtedness and unused commitments of all
the indebtedness refinancing or replacing the Bank Credit Agreement) executes a
counterpart hereto agreeing to be deemed the Bank Agent and the Collateral
Agent hereunder and to be bound hereby in such capacity.
"BANK CREDIT FACILITY" means, collectively, each loan or credit
facility (including any term loan credit facility and/or any revolving credit
facility (including any letter of credit facility thereunder)) described and
made available from time to time to the Company by the Bank Lenders pursuant to
the Bank Credit Agreement.
"BANK LENDERS" means (a) the financial institutions and other
lenders which are now, or may in the future become, parties to the Bank Credit
Agreement and (b) the counterparties to Interest Rate Agreements that are
permitted to be secured by the Bank Credit Agreement, in each case, or their
successors or assignees in such capacity as lenders or counterparties, as the
case may be, under the Bank Credit Agreement.
"BANK SECURED OBLIGATIONS" means all Obligations of the Company
Group to or for the benefit of the Bank Agent or the Bank Lenders under the
Bank Credit Agreement, the First Lien Security Documents, the Facility Fee
Letter (as defined in the Bank Credit Agreement), and any other agreement,
document or instrument entered into or delivered by a member of the Company
Group on, prior to or after the Closing Date with or to the Collateral Agent,
the Bank Agent or the Bank Lenders in connection with the financing of either
or both Projects or for working capital needs or for other general corporate
purposes (including, without limitation, Obligations in respect of Specified
Hedge Agreements, but only to the extent that the Bank Credit Agreement permits
such Obligations to be secured by the First Lien Security Document).
"BANK SEPARATE COLLATERAL" means (a) the Bank Proceeds Account
Collateral, (b) all amounts deposited by the Bank Agent into an account
specially designated to secure outstanding Letters of Credit, but only to the
extent that the Bank Agent would have been permitted pursuant to this Agreement
to apply such amounts against the Bank Secured Obligations and (c) any other
property or assets of the Company Group which has been pledged to secure the
Bank Secured Obligations but not the Obligations under any Permitted Additional
Senior Secured Debt Agreement, the Second Lien Secured Obligations or the 2014
Notes Secured Obligations.
"BANKRUPTCY LAW" means Title 11 of the United States Code entitled
"Bankruptcy," as now and hereafter in effect, or any successor statute, and any
other state or federal insolvency, reorganization, moratorium or similar law
for the relief of debtors now or hereafter in effect.
"BLOCKING EVENT" means (a) the occurrence of an Event of Default
under Section 8(a) of the Bank Credit Agreement or Section 6.01(a) or (b) of
the 2014 Notes Indenture or any comparable provision of any other First Lien
Security Document or (b) that the Bank Secured Obligations, 2014 Notes Secured
Obligations or any other First Lien Secured Obligations have become due and
payable in full (whether at maturity, upon acceleration or otherwise).
"CLASS" shall mean each class of Secured Parties, i.e., (a) the
Bank Lenders as holders of the Bank Secured Obligations shall constitute a
"Class," and (b) the 2014 Noteholders as holders of the 2014 Notes Secured
Obligations shall constitute a "Class."
"COLLATERAL" means the following unique and separate categories of
property encumbered to secure the Obligations to any of the Secured Parties:
(a) the Shared Collateral, (b) the Bank Separate Collateral and (c) the 2014
Notes Separate Collateral.
"COLLATERAL AGENT" means (a) Deutsche Bank Trust Company Americas
in its capacity as collateral agent for the benefit of the Bank Agent, the 2014
Notes Indenture Trustee, and any other Project Credit Party that from time to
time becomes a party hereto in accordance with Section 10.15, as appointed in
the first sentence of Section 2.1 (together with its successors and assigns and
any replacement collateral agent appointed pursuant to the terms hereof), (b)
Deutsche Bank Trust Company Americas in its capacity as collateral agent for
the benefit of the Bank Agent as appointed in the second sentence of Section
2.1 (together with its successors and assigns and any replacement collateral
agent appointed pursuant to the terms hereof), and (c) Deutsche Bank Trust
Company Americas in its capacity as collateral agent for the benefit of the
2014 Notes Indenture Trustee as appointed in the third sentence of Section 2.1
(together with its successors and assigns and any replacement collateral agent
appointed pursuant to the terms hereof); provided, however, that (i) in respect
of the Shared Collateral, "Collateral Agent" means Deutsche Bank Trust Company
Americas in its capacity as collateral agent as described in clause (a) above,
(ii) in respect of the Bank Separate Collateral, "Collateral Agent" means
Deutsche Bank Trust Company Americas in its capacity as collateral agent as
described in clause (b) above, (iii) in respect of the 2014 Notes Separate
Collateral, "Collateral Agent" means Deutsche Bank Trust Company Americas in
its capacity as collateral agent as described in clause (c) above, and (iv) in
all other cases, "Collateral Agent" means Deutsche Bank Trust Company Americas
in each of its capacities described in clauses (a), (b), and (c) above.
"COMPANY" has the meaning given in the recitals hereto.
"COMPANY GROUP" means, collectively, the Company and any Affiliate
of the Company that from time to time incurs any Obligations or pledges any
Collateral under any Financing Agreement, unless released from such Obligations
or pledges pursuant to the applicable Financing Agreements.
"CREDIT BID RIGHTS" means, in respect of any order relating to a
sale of assets in any Insolvency or Liquidation Proceeding, that:
(a) such order grants the Second Lien Secured Parties
(individually and in any combination) the right to bid at the sale of
such assets and the right to offset such Second Lien Secured Parties'
claims secured by Liens upon such assets against the purchase price of
such assets if:
(i) the bid of such Second Lien Secured Parties
is the highest bid or otherwise determined
by the court to be the best offer at the
sale; and
(ii) the bid of such Second Lien Secured Parties
includes a cash purchase price component
payable at the closing of the sale in an
amount that would be sufficient on the date
of the closing of the sale to achieve the
Discharge of the First Lien Secured
Obligations and to satisfy all Liens
entitled to priority over the Liens
securing the First Lien Secured Obligations
that attach to the proceeds of the sale, if
such amount were applied on the date of the
sale to the payment in cash of:
(A) all unpaid First Lien Secured Obligations;
(B) all unpaid claims secured by any such
Liens entitled to priority over the Liens
securing the First Lien Secured
Obligations; and
(C) all claims and costs, including those
incurred in connection with the sale by
the Collateral Agent, the Bank Agent, the
Bank Lenders, the 2014 Notes Indenture
Trustee, the 2014 Noteholders, the
representatives of any Permitted
Additional Senior Secured Debt Agreement
and the holders of any Permitted
Additional Senior Secured Debt Agreement,
required by such order to be paid from the
proceeds of the sale, whether or not the
order requires or permits such amount to
be so applied; and
(b) such order allows the claims of the Second Lien Secured
Parties in such Insolvency or Liquidation Proceeding to the extent
required for the grant of such rights.
"DEFAULT PURCHASE OPTION" means the option granted to a
representative on behalf of the Second Lien Secured Parties pursuant to Section
7 to purchase all but not less than all of the First Lien Secured Obligations.
"DISBURSEMENT AGREEMENT" has the meaning given in the recitals
hereto.
"DISBURSEMENT AGREEMENT DEFAULT" means the occurrence and
continuance of an Event of Default under and as defined in the Disbursement
Agreement.
"DISBURSEMENT AGREEMENT DEFAULT DATE" the date upon which a
Disbursement Agreement Default occurs.
"DISCHARGE" means (a) in respect of the Bank Credit Facility, the
termination of all commitments to extend credit under the Bank Credit Facility,
payment in full in cash of the principal of and interest and premium (if any)
on all Bank Secured Obligations, termination, cancellation, expiration or cash
collateralization of all letters of credit issued under the Bank Credit
Facility and payment in full in cash of all other Bank Secured Obligations that
are unpaid at the time the principal and interest are paid in full in cash, (b)
in respect of the 2014 Notes, the satisfaction and discharge (pursuant to
Article 12 of the 2014 Notes Indenture), defeasance (pursuant to Article 8 of
the 2014 Notes Indenture) or other satisfaction in full of the 2014 Notes
Secured Obligations and (c) in respect of any other Class of Secured
Obligations, the termination of all commitments to extend credit under such
Class of Secured Obligations, the discharge, defeasance or payment in full in
cash of the principal of and interest and premium (if any) on all such Secured
Obligations, the termination, cancellation, expiration or cash
collateralization of all letters of credit, if any, issued under any Facility
Agreement and the discharge, defeasance or payment in full in cash of all other
Secured Obligations of such Class that are unpaid at the time the principal and
interest are paid in full in cash, discharged or defeased.
"ELIGIBLE PURCHASER" means any Person or Persons at any time or
from time to time designated by the holders of at least 25% in outstanding
principal amount of the Second Lien Secured Obligations, voting as a single
class, as entitled to exercise the Default Purchase Option.
"EVENT OF DEFAULT" means, as the context requires, (a) a
Disbursement Agreement Default, or (b) the occurrence and continuance of an
"Event of Default" (or comparable term) by or with respect to the Company under
the applicable Facility Agreement that has not been waived by the applicable
Project Credit Party (it being understood that the provisions of Section 1.2
shall not apply to any such waiver).
"FACILITY AGREEMENTS" means, collectively, the Bank Credit
Agreement, the 2014 Notes Indenture, each Permitted Additional Senior Secured
Debt Agreement and each Permitted Additional Junior Secured Debt Agreement.
"FIRST LIEN" means a Lien granted by a Security Document to the
Collateral Agent, for the benefit of the First Lien Secured Parties (or any of
them), upon any property or assets of the Company or any other member of the
Company Group to secure First Lien Secured Obligations.
"FIRST LIEN DOCUMENTS" means, collectively, the 2014 Indenture, the
2014 Notes, the Bank Credit Agreement, each Permitted Additional Senior Secured
Debt Agreement, the First Lien Security Documents, and all other agreements
governing, securing or relating to any First Lien Secured Obligations.
"FIRST LIEN SECURED CLAIM REDUCTION" has the meaning given in
Section 6.3.
"FIRST LIEN SECURED OBLIGATIONS" means, collectively, (a) the Bank
Secured Obligations, (b) the 2014 Notes Secured Obligations and (c) Obligations
under any Permitted Additional Senior Secured Debt Agreement.
"FIRST LIEN SECURED PARTIES" means, collectively, the holders of
First Lien Secured Obligations, the Bank Agent, the 2014 Notes Indenture
Trustee, the Collateral Agent and the representative for the holders of any
Indebtedness under any Permitted Additional Senior Secured Debt Agreement.
"FIRST LIEN SECURITY DOCUMENTS" means, collectively, the Wynn Las
Vegas Deed of Trust, the Wynn Sunrise Deed of Trust, the Wynn Golf Deed of
Trust, the Security Agreement, the 2014 Notes Environmental Indemnity
Agreements, the Collateral Agency Agreement, the Bank Guarantee, the Collateral
Account Agreements, the Completion Guaranty and any guaranties, deeds of trust,
security agreements or collateral account agreements or any other document
creating or perfecting a lien, security interest or other preferential
arrangement, and any related documents executed, filed, recorded or delivered
from time to time by any member of the Company Group in favor of the Collateral
Agent to secure the First Lien Secured Obligations.
"GUARANTOR" has the meaning given in the Bank Credit Agreement.
"INSOLVENCY OR LIQUIDATION PROCEEDING" means (a) any case commenced
by or against the Company Group or any Person within the Company Group under
any Bankruptcy Law, any other proceeding for the reorganization,
recapitalization or adjustment or marshalling of the assets or liabilities of
the Company Group or any Person within the Company Group, any receivership or
assignment for the benefit of creditors relating to the Company Group or any
Person within the Company Group or any similar case or proceeding relative to
the Company Group or any Person within the Company Group or their creditors, as
such, in each case whether or not voluntary; (b) any liquidation, dissolution,
marshalling of assets or liabilities or other winding up of or relating to the
Company Group or any Person within the Company Group, in each case whether or
not voluntary and whether or not involving bankruptcy or insolvency; or (c) any
other proceeding of any type or nature in which substantially all claims of
creditors of the Company Group or any Person within the Company Group are
determined and any payment or distribution is or may be made on account of such
claims.
"JOINDER AGREEMENT" has the meaning given in Section 10.15.
"JOINT COMMITTEE" means a joint committee appointed with the
written consent of representatives of each Class of First Lien Secured Parties
(acting in accordance with their respective Facility Agreements), to perform
such duties and with such authority to act on behalf of each Class of First
Lien Secured Parties, in connection with directing the manner and method of
enforcement proceedings under the First Lien Security Documents, as the
representatives of each Class of First Lien Secured Parties (acting in
accordance with their respective Facility Agreements) jointly agree to delegate
to such Joint Committee.
"LIEN" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law.
"NOTICE OF DEFAULT" means a notice of default which must be
recorded in the official real property records of Clark County, Nevada, in
order to commence non-judicial foreclosure of a Deed of Trust in accordance
with applicable Nevada law.
"PERMITTED ADDITIONAL JUNIOR SECURED DEBT AGREEMENT" shall mean one
or more agreements evidencing secured indebtedness with, or guaranteed by, the
Company or any other member of the Company Group, provided that such agreement
is expressly permitted to be entered into and secured with a junior lien
(subject and subordinate to First Liens) on the Shared Collateral pursuant to
the First Lien Documents and the Second Lien Documents and that the provider of
such indebtedness becomes a party to this Agreement and agrees to be bound by
and comply with all of the terms and provisions hereof.
"PERMITTED ADDITIONAL SENIOR SECURED DEBT AGREEMENT" shall mean one
or more agreements evidencing senior secured indebtedness with, or guaranteed
by, the Company or any other member of the Company Group (including any
Specified Hedge Agreement), provided that such agreement is expressly permitted
to be entered into and secured with a First Lien on the Shared Collateral
pursuant to the First Lien Documents and the Second Lien Documents and that the
provider of such indebtedness becomes a party to this Agreement and agrees to
be bound by and comply with all of the terms and provisions hereof.
"PHASE I PROJECT" has the meaning given in the recitals hereto.
"PHASE II PROJECT" has the meaning given in the recitals hereto.
"PRIMARY OBLIGATIONS" has the meaning given in Section 8.2.
"PRO RATA PAYMENTS" means:
(a) with respect to any amount paid to a First Lien Secured
Party on a given date other than pursuant to Sections 4.15 and 4.16 of
the 2014 Notes Indenture, that the ratio of such payment to the total
payments made to all First Lien Secured Parties on such date is the
same as the ratio of (i) the total principal amount of First Lien
Secured Obligations outstanding with respect to such First Lien
Secured Party to (ii) the total principal amount of First Lien Secured
Obligations outstanding with respect to all First Lien Secured
Parties; provided, however, that (A) the principal amount will be
calculated without duplication of the underlying obligation for
"Guarantees" (as defined in the 2014 Notes Indenture) and Specified
Hedge Agreements, (B) reimbursement obligations for outstanding
Letters of Credit that are secured by a Lien on the Shared Collateral
ranking pari passu with the Liens securing the First Lien Secured
Obligations shall be considered outstanding First Lien Secured
Obligations and (C) with respect to Specified Hedge Agreements, the
"total principal amount of First Lien Secured Obligations outstanding"
of any First Lien Secured Party in its capacity as a counterparty or
intermediary to a Specified Hedge Agreement shall be deemed to equal
the aggregate amount of all costs, fees and expenses which would be
payable by a member of the Company Group if such Specified Hedge
Agreement was terminated on such date; and
(b) with respect to any amount paid to a First Lien Secured
Party on a given date in connection with Section 4.15 or 4.16 of the
2014 Notes Indenture, that such payment has been allocated among the
First Lien Secured obligations in accordance with such section of the
2014 Notes Indenture.
"PRO RATA SHARE" has the meaning given in Section 8.2.
"PROJECT CREDIT PARTIES" means the Bank Agent and the 2014 Notes
Indenture Trustee and any other Persons that from time to time become parties
hereto in accordance with Section 10.15.
"PROJECTS" has the meaning given in the recitals hereto.
"REQUIRED CLASS LENDERS" means, with respect to each Class of
Secured Parties, the requisite percentage of Secured Parties within such Class
whose approval is needed in order to take or consent to a specified action on
behalf of such Class.
"REQUIRED SECURED PARTIES" shall mean:
(a) for purposes of causing the Collateral Agent to commence
enforcement proceedings against the Shared Collateral pursuant to the
Shared Collateral Documents:
(i) at any time after the expiration of 30 days
following the earlier of (A) the occurrence and continuation
of an Event of Default under Section 6.01(a) or (b) of the
2014 Notes Indenture or (B) an acceleration of the 2014
Notes, then the holders of the majority of the aggregate
outstanding amount of 2014 Notes and Loans under the Bank
Credit Facility shall constitute the "Required Secured
Parties" for purposes of causing the Collateral Agent to
commence enforcement proceedings pursuant to the Shared
Security Documents; and
(ii) at any time that an Event of Default has
occurred and is continuing under the Bank Credit Agreement,
then the Bank Agent (acting under the Bank Credit Agreement)
shall constitute the "Required Secured Parties" for purposes
of causing the Collateral Agent to commence enforcement
proceedings pursuant to the Shared Security Documents;
provided that, if an event described in clause (i)(A) or (i)(B) above
has occurred and is continuing for more than 30 days and an Event of
Default has occurred and is continuing under the Bank Credit
Agreement, then either (x) the Bank Agent (acting under the Bank
Credit Agreement) or (y) the holders of the majority of the aggregate
outstanding amount of the 2014 Notes and Loans under the Bank Credit
Facility shall constitute the "Required Secured Parties" for purposes
of causing the Collateral Agent to commence enforcement proceedings
pursuant to the Shared Security Documents.
(b) for purposes of causing the Collateral Agent to commence
enforcement proceedings against the 2014 Notes Separate Collateral,
the 2014 Notes Indenture Trustee shall constitute the "Required
Secured Parties";
(c) for purposes of causing the Collateral Agent to commence
enforcement proceedings against the Bank Separate Collateral, the Bank
Agent shall constitute the "Required Secured Parties";
(d) once enforcement proceedings have been commenced in
accordance with clause (a) above, if either the 2014 Notes Indenture
Trustee or the Bank Agent (but not both) has directed the Collateral
Agent to commence such proceedings, then only the Required Secured
Parties that directed the Collateral Agent to commence such
proceedings shall be required to direct the Collateral Agent to
discontinue the proceedings; provided, however, that the Collateral
Agent shall not discontinue such proceedings if any other Required
Secured Parties who, at such time, would be entitled to direct the
Collateral Agent to commence the exercise of remedies in accordance
with clause (a) above instruct the Collateral Agent to continue such
proceedings;
(e) for purposes of directing the manner and method of
enforcement proceedings, once commenced in accordance with clause (a)
above, the Collateral Agent shall make all decisions that it deems
appropriate to diligently prosecute and complete such proceedings
unless instructed to do otherwise by the Joint Committee (if one has
been formed and is then in effect) or, if a Joint Committee is not
then in effect, by both the 2014 Notes Indenture Trustee (acting under
the 2014 Indenture) and the Bank Agent (acting under the Bank Credit
Agreement), acting together, who shall constitute the "Required
Secured Parties" under such circumstances. If the Collateral Agent
requests instructions from the Required Secured Parties with respect
to the manner and method of enforcement proceedings, then:
(i) if a Joint Committee has been formed and is then
in effect, such Joint Committee shall constitute the
"Required Secured Parties"; and
(ii) if a Joint Committee has not been formed or is
not then in effect both the 2014 Notes Indenture Trustee
(acting under the 2014 Notes Indenture) and the Bank Agent
(acting under the Bank Credit Agreement), acting together,
shall constitute the "Required Secured Parties";
provided, however, that if the 2014 Notes Indenture Trustee and the
Bank Agent both fail to respond to the Collateral Agent's request for
instructions or if the Collateral Agent receives conflicting
instructions from the 2014 Notes Indenture Trustee and the Bank Agent,
the Collateral Agent shall not act under the requested instructions
until a non-conflicting instruction is received from either (x) both
the 2014 Notes Indenture Trustee and the Bank Agent or (y) the holders
of the majority of the then outstanding indebtedness under the 2014
Notes Indenture and the Bank Credit Agreement; provided, further, that
if one of the 2014 Notes Indenture Trustee (acting under the 2014
Notes Indenture) or Bank Agent (acting under the Bank Credit
Agreement) responds with instructions to the Collateral Agent within
ten (10) Banking Days but the other Required Secured Creditor fails to
respond during such time frame, then the "Required Secured Parties"
under such circumstances shall constitute the Person who responded
during such time frame;
(f) for purposes of amending, modifying, varying or waiving
any provisions of the Shared Security Documents or other Security
Documents with respect to Shared Collateral (including any event of
default thereunder), the Bank Agent (acting under the Bank Credit
Agreement) shall constitute the "Required Secured Parties" entitled to
amend, modify, vary or waive any provision of such Security Documents
(without the consent of any other Project Credit Party), and any such
amendment, modification, variance or waiver shall be effective with
respect to, and shall automatically apply to the corresponding
provisions of, any Security Documents entered into with respect to the
2014 Notes Indenture, any Permitted Additional Senior Secured Debt
Agreement or any Permitted Additional Junior Secured Debt Agreement;
provided, however, that, (i) to the extent that such amendment,
modification, variance or waiver will result in the release of any
portion of the Collateral under the Shared Security Documents, (A) the
consent of the 2014 Notes Indenture Trustee and each other Project
Credit Party representing each Class of First Lien Secured Obligations
and Second Lien Secured Obligations shall be required (unless
otherwise specifically set forth in the 2014 Notes Indenture or
Facility Agreement governing such Class of First Lien Secured
Obligations or Second Lien Secured Obligations, as the case may be),
and (B) the "Required Secured Parties" under such circumstances shall
consist of the Bank Agent, the 2014 Notes Indenture Trustee and each
other Project Credit Party whose consent is required under clause (A)
above, (ii) any amendment, modification, variance or waiver adversely
affecting the relative rights and benefits of one or more Classes of
Secured Parties (and not all Secured Parties in a similar manner)
shall require the written consent of the representatives of such
Classes of Secured Parties (acting in such capacity); (iii) any
amendment or modification to the definition of "Excluded Assets" in
the Security Agreement or the definition of "Excluded Property" in the
Wynn Las Vegas Deed of Trust, the Wynn Sunrise Deed of Trust or the
Wynn Golf Deed of Trust shall require the consent of the 2014 Notes
Indenture Trustee if as a result of such amendment or modification the
2014 Notes will not be secured by substantially all of the assets of
the Company and the Guarantors (as defined in the 2014 Notes
Indenture) and (iv) any Potential Event of Default or Event of Default
occurring under a Shared Security Document by reason of a Potential
Event of Default or Event of Default under the 2014 Notes Indenture, a
Permitted Additional Senior Secured Debt Agreement or a Permitted
Additional Junior Secured Debt Agreement may only be waived by the
2014 Notes Indenture Trustee, the representative under such Permitted
Additional Senior Secured Debt Agreement or the representative under
such Permitted Additional Junior Secured Debt Agreement, as the case
may be, in each case, acting in such capacity; provided, however,
that, notwithstanding the foregoing, the consent of the 2014 Notes
Indenture Trustee, the representative under such Permitted Additional
Senior Secured Debt Agreement or the representative under such
Permitted Additional Junior Secured Debt Agreement shall not be
required to the extent that such amendment, modification, variance or
waiver is expressly permitted to occur without such Project Credit
Party's consent under the terms of the 2014 Notes Indenture, such
Permitted Additional Senior Secured Debt Agreement or such Permitted
Additional Junior Secured Debt Agreement, respectively;
(g) For purposes of adjusting settlement of all insurance
claims and condemnation awards in the event of any covered loss, theft
or destruction or condemnation of any Shared Collateral, and all
claims under insurance constituting Shared Collateral, the Bank Agent
(acting pursuant to the Bank Credit Agreement) shall constitute the
"Required Secured Parties";
(h) Notwithstanding clauses (a) through (g) above, if at the
time of an action by the Required Secured Parties all Obligations
under the Bank Credit Agreement have been Discharged and Obligations
under the 2014 Notes remain outstanding, then the "Required Secured
Parties" at such time shall be the 2014 Notes Indenture Trustee
(acting pursuant to the 2014 Notes Indenture);
(i) Notwithstanding clauses (a) through (h) above, if at the
time of an action by the Required Secured Parties all Bank Secured
Obligations and all 2014 Notes Secured Obligations have been
Discharged, then the Required Secured Creditors at such time shall be
the representatives of each Class of any other First Lien Secured
Obligations; and
(j) Notwithstanding clauses (a) through (i) above, if at the
time of an action by the Required Secured Parties all First Lien
Secured Obligations have been Discharged, then the Required Secured
Creditors at such time shall be the representatives of each Class of
any Second Lien Secured Obligations.
"SECOND LIEN DOCUMENTS" means, collectively, any Permitted
Additional Junior Secured Debt Agreement, the Second Lien Security Documents,
and all other agreements governing, securing or relating to any Second Lien
Secured Obligations entered into or delivered by any member of the Company
Group on, prior to, or after the Closing Date in connection with any of the
foregoing.
"SECOND LIEN RECOVERY" has the meaning given in Section 6.3.
"SECOND LIEN SECURED OBLIGATIONS" means all Obligations of the
Company Group under the Second Lien Documents.
"SECOND LIEN SECURED PARTIES" means, collectively, the holders of
the Second Lien Secured Obligations, the Collateral Agent and any
representative for the holders of indebtedness under any Permitted Additional
Junior Secured Debt Agreement.
"SECOND LIEN SECURITY DOCUMENTS" means, collectively, any
guaranties, deeds of trust, security agreements, pledge agreements, collateral
agency agreements, or collateral account agreements or any other document
creating or perfecting a Lien, security interest or other preferential
arrangement, and any related documents executed, filed, recorded or delivered
from time to time by any member of the Company Group in respect of any Second
Lien Secured Obligations.
"SECONDARY OBLIGATIONS" has the meaning given in Section 8.2.
"SECURED OBLIGATIONS" means, without duplication, any or all of the
First Lien Secured Obligations and/or the Second Lien Secured Obligations, as
the context requires.
"SECURED PARTIES" means, collectively, the First Lien Secured
Parties and the Second Lien Secured Parties.
"SECURITIES INTERMEDIARY" means any entity acting in its capacity
as securities intermediary under any Collateral Account Agreement.
"SECURITY DOCUMENTS" means, collectively, the First Lien Security
Documents and the Second Lien Security Documents.
"SEPARATE COLLATERAL" means, collectively, the 2014 Notes Separate
Collateral and the Bank Separate Collateral.
"SHAREABLE RECOVERY" has the meaning given in Section 6.3.
"SHARED COLLATERAL" means all real and personal property encumbered
to secure more than one Class of Secured Obligations; provided that "Shared
Collateral" shall exclude (a) the Bank Separate Collateral, (b) the 2014 Notes
Separate Collateral or (c) after the release of all or any portion of the
Shared Collateral in accordance with the Bank Credit Agreement and the 2014
Notes Indenture, such released Collateral.
"SHARED SECURITY DOCUMENTS" means each of the First Lien Security
Documents and Second Lien Security Documents entered into with the Collateral
Agent, whereby the Collateral Agent is acting on behalf of more than one Class
of Secured Parties.
"SPECIFIED HEDGE AGREEMENT" has the meaning given in the Bank
Credit Agreement.
1.2 INTERPRETATION. To the extent that reference is made in this
Agreement to any term defined in, or to any other provision of, any other
agreement, such term or provision shall continue to have the original meaning
thereof notwithstanding any termination, expiration or amendment of such other
agreement; provided, however, that to the extent that any agreement to which
all of the Project Credit Parties are parties is amended in accordance with the
terms thereof and hereof, then any references herein to the terms and
provisions of such agreement shall be to such terms or provisions as so
amended; and provided, further, that to the extent the 2014 Notes Indenture
allows for the amendment of any "Collateral Document" (as defined in the 2014
Notes Indenture) without the consent of the 2014 Notes Indenture Trustee, any
references herein to the terms and provisions of such document shall be to such
terms or provisions as so amended.
2. COLLATERAL AGENT.
2.1 APPOINTMENT. The Bank Agent and the 2014 Notes Indenture
Trustee hereby designate Deutsche Bank Trust Company Americas as the Collateral
Agent to act as specified herein and in each of the Shared Security Documents.
The Bank Agent hereby designates Deutsche Bank Trust Company Americas as its
collateral agent for purposes of the granting of a security interest in the
Bank Separate Collateral for the benefit of the Bank Agent and for the purposes
of the perfection of such security interest. The 2014 Indenture Trustee hereby
designates Deutsche Bank Trust Company Americas as its collateral agent for
purposes of the granting of a security interest in the 2014 Notes Separate
Collateral for the benefit of the 2014 Indenture Trustee and for the purposes
of the perfection of such security interest. Each Secured Party hereby
irrevocably authorizes, and each holder of any Note or any other instrument
evidencing any Secured Obligations by the acceptance of such Note or other
instrument evidencing any Secured Obligations shall be deemed irrevocably to
authorize, the Collateral Agent to take such action on its behalf under the
provisions of this Agreement, the Shared Security Documents and any other
instruments and agreements referred to herein or therein and to exercise such
powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Collateral Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto. The
Collateral Agent may perform any of its duties hereunder or thereunder by or
through its authorized agents or employees.
2.2 NATURE OF DUTIES. The Collateral Agent shall have no duties or
responsibilities except those expressly set forth herein and in the Shared
Security Documents. Neither the Collateral Agent nor any of its officers,
directors, employees or agents shall be liable for any action taken or omitted
by it as such hereunder or under the Shared Security Documents or in connection
herewith or therewith to the maximum extent permitted by law. The duties of the
Collateral Agent shall be mechanical and administrative in nature. The
Collateral Agent shall not have, by reason of this Agreement, the Shared
Security Documents, any Facility Agreement, Specified Hedge Agreement or any
other document or instrument or otherwise, a fiduciary relationship in respect
of any Secured Party; and nothing in this Agreement, the Shared Security
Documents, any Facility Agreement, any Specified Hedge Agreement or any other
document or instrument, expressed or implied, is intended to or shall be so
construed as to impose upon the Collateral Agent any obligations in respect of
the Shared Security Documents except as expressly set forth herein or therein.
2.3 LACK OF RELIANCE ON THE COLLATERAL AGENT. Independently and
without reliance upon the Collateral Agent, each Secured Party, to the extent
it deems appropriate, has made and shall continue to make (a) its own
independent investigation of the financial condition and affairs of the members
of the Company Group and their Affiliates in connection with the making and the
continuance of the Obligations and the taking or not taking of any action in
connection therewith, and (b) its own appraisal of the creditworthiness of the
members of the Company Group and their Affiliates, and the Collateral Agent
shall have no duty or responsibility, either initially or on a continuing
basis, to provide any Secured Party with any credit or other information with
respect thereto, whether coming into its possession before the extension of any
Obligations or the purchase of any Notes, or at any time or times thereafter.
The Collateral Agent shall not be responsible to any Secured Party for any
recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity, enforceability,
perfection, collectibility, priority or sufficiency of the Shared Security
Documents or the Shared Collateral or the financial condition of any members of
the Company Group or any of their Affiliates or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of the Shared Security Documents, or the financial condition of
any members of the Company Group or their Affiliates, or the existence or
possible existence of any Potential Event of Default or Event of Default.
2.4 CERTAIN RIGHTS OF THE COLLATERAL AGENT; PARI PASSU IN PRIORITY
OF LIENS; SEPARATE COLLATERAL.
2.4.1 No Secured Party shall have the right to take any action with
respect to (or against) any Shared Collateral, but instead may only cause the
Collateral Agent to take any action with respect to (or against) any Shared
Collateral in accordance with the terms and subject to the limitations set
forth herein. Notwithstanding the preceding sentence or any other provision of
this Agreement to the contrary, (a) the 2014 Notes Indenture Trustee (acting in
accordance with the 2014 Indenture) shall have the right at any time to
exercise (or to cause the Collateral Agent to exercise) any rights or remedies
with respect to the 2014 Notes Separate Collateral and (b) the Bank Agent
(acting in accordance with the Bank Credit Agreement) shall have the right at
any time to exercise (or to cause the Collateral Agent to exercise) any rights
or remedies with respect to the Bank Separate Collateral. If the Collateral
Agent shall request instructions from the Required Secured Parties with respect
to any act or action (including failure to act) in connection with this
Agreement or the Shared Security Documents, the Collateral Agent shall be
entitled to refrain from such act or taking such action unless and until it
shall have received instructions from the Required Secured Parties and to the
extent requested, appropriate indemnification in respect of actions to be
taken, and the Collateral Agent shall not incur liability to any Secured Party
or any other Person by reason of so refraining. Without limiting the foregoing,
no Secured Party shall have any right of action whatsoever against the
Collateral Agent as a result of the Collateral Agent acting or refraining from
acting (i) hereunder in accordance with the instructions of the Required
Secured Parties or (ii) under any Shared Security Document as provided for
therein.
2.4.2 Notwithstanding anything to the contrary contained in this
Agreement, the Collateral Agent is authorized, but not obligated, (a) to take
any action reasonably required to perfect or continue the perfection of the
Liens on the Shared Collateral for the benefit of the Secured Parties,
including entering into any Security Document with respect to Shared Collateral
or any other document in connection with a Security Document, as secured party
or beneficiary, as applicable, on behalf of the applicable Secured Parties (and
each Project Credit Party, on behalf of the Secured Parties it represents,
agrees to be bound by such documents to the extent the Collateral Agent has
entered into such documents on behalf of such parties), and (b) when
instructions from the Required Secured Parties have been requested by the
Collateral Agent but have not yet been received, to take any action which the
Collateral Agent, in good faith, believes to be reasonably required to promote
and protect the interests of the Secured Parties in the Shared Collateral;
provided that once instructions have been received, the actions of the
Collateral Agent shall be governed thereby and the Collateral Agent shall not
take any further action which would be contrary thereto. In addition, once the
Collateral Agent has been instructed by the Required Secured Parties to
commence enforcement proceedings under the Shared Security Documents, the
Collateral Agent shall in good faith and in the manner reasonably believed by
the Collateral Agent to be in the interest of the Secured Parties, promptly
commence and diligently pursue to completion the exercise of all rights and
remedies available to the Collateral Agent under the Shared Security Documents,
subject to the Collateral Agent's right to request instructions and/or
indemnities from the Required Secured Parties as provided in Sections 2.4.1 and
2.4.3.
2.4.3 Notwithstanding anything to the contrary contained in this
Agreement, the Collateral Agent shall not be required to take any action that
exposes or, in the good faith judgment of the Collateral Agent may expose, the
Collateral Agent or its officers, directors, agents or employees to personal
liability unless the Collateral Agent shall be adequately indemnified as
provided herein or that is, or in the good faith judgment of the Collateral
Agent may be, contrary to the Shared Security Documents or applicable Legal
Requirements. In addition, none of the provisions of this Agreement shall be
construed to require the Collateral Agent to expend or risk its own funds or
otherwise to incur any personal financial liability in the performance of any
of its duties hereunder or under the Shared Security Documents, or in the
exercise of any of its rights or powers if it shall have reasonable grounds for
believing that repayment of such funds or inadequate indemnity against such
risk or liability is not reasonably assured to it.
2.5 RELIANCE. The Collateral Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, telex, teletype or facsimile message,
cablegram, order or other document or telephone message signed, sent or made by
a Person believed by it to be authorized to sign, send or make the same, and,
with respect to all legal matters pertaining to this Agreement or the Shared
Security Documents and its duties hereunder and thereunder, upon the advice of
counsel selected by it.
2.6 INDEMNIFICATION. To the extent the Collateral Agent is not
reimbursed and indemnified by the Company or any other member of the Company
Group under the respective Shared Security Documents to which they are a party,
the Collateral Agent shall be entitled to reimbursement from the proceeds of
the Shared Collateral, but shall have no claim against any Secured Party for
reimbursement or indemnification.
2.7 COLLATERAL AGENT IN ITS INDIVIDUAL CAPACITY. The Collateral
Agent may accept deposits from, lend money to, and generally engage in any kind
of banking, trust or other business with the Company or any other member of the
Company Group or any of their Affiliates as if it were not performing the
duties specified herein or in the Shared Security Documents, and may accept
fees and other consideration from the Company or any other member of the
Company Group or any of their Affiliates for services in connection with the
Bank Credit Agreement, the other Bank Credit Documents and otherwise without
having to account for the same to the Secured Parties.
2.8 HOLDERS. The Collateral Agent may deem and treat the registered
owner of any Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment, transfer or endorsement thereof, as the
case may be, shall have been filed with the Collateral Agent. Any request,
authority or consent of any person or entity who, at the time of making such
request or giving such authority or consent, is the registered owner of any
Note shall be final and conclusive and binding on any subsequent holder,
transferee, assignee or endorsee, as the case may be, of such Note or any Note
issued in exchange therefor.
2.9 RESIGNATION AND REMOVAL OF THE COLLATERAL AGENT.
2.9.1 The Collateral Agent may resign from the performance of all
of its functions and duties under the Shared Security Documents at any time by
giving 30 days' prior written notice to the Company, the 2014 Notes Indenture
Trustee and the Bank Agent and may be removed at any time, with or without
cause, (i) by the 2014 Notes Indenture Trustee and the Bank Agent, acting
together or (ii) in the event that the Deutsche Bank Trust Company Americas is
no longer the Bank Agent, then by the Administrative Agent under the Bank
Credit Facility at such time.
2.9.2 Upon receiving notice of any such resignation or removal, a
successor Collateral Agent shall be appointed by the 2014 Notes Indenture
Trustee and the Bank Agent, acting together; provided, however, that such
successor Collateral Agent shall be (a) a bank or trust company having a
combined capital and surplus of at least $500,000,000 subject to supervision or
examination by a federal or state banking authority; and (b) authorized under
the laws of the jurisdiction of its incorporation or organization to assume the
functions of the Collateral Agent; and (c) not disqualified to act in such
capacity pursuant to applicable gaming laws and regulations. If the appointment
of such successor shall not have become effective (as provided in Section
2.9.3) within such 30 day period after the Collateral Agent shall have given
such notice, then the 2014 Notes Indenture Trustee, the Bank Agent either or
both (acting together) may petition a court of competent jurisdiction for the
appointment of a successor Collateral Agent. Such court shall, after such
notice as it may deem proper, appoint a successor Collateral Agent meeting the
qualifications specified in this Section 2.9.2. The Secured Parties hereby
consent to such petition and appointment so long as such criteria are met.
2.9.3 The resignation of a Collateral Agent shall become effective
on the date specified in the notice provided in accordance with Section 2.9.1.
The removal of a Collateral Agent shall become effective only upon the
execution and delivery of such documents or instruments as are necessary to
transfer the rights and obligations of the Collateral Agent under the Shared
Security Documents and the recording or filing of such documents, instruments
or financing statements as may be necessary to maintain the priority and
perfection of any security interest granted by any Shared Security Document.
Copies of each such document or instrument shall be delivered to each Project
Credit Party. The appointment of a successor Collateral Agent pursuant to
Section 2.9.2 shall become effective upon the acceptance of such appointment
(and execution by such successor of the documents, instruments or financing
statements referred to above) and such successor Collateral Agent shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Collateral Agent and shall be deemed to be the "Collateral Agent"
hereunder.
2.9.4 After any resignation or removal hereunder of the Collateral
Agent, the indemnification provisions of this Agreement shall continue to inure
to its benefit as to any actions taken or omitted to be taken by it in
connection with its agency hereunder while it was Collateral Agent.
3. COLLATERAL, PRIORITY OF LIENS, SUBORDINATION AND RELEASE.
3.1 LIENS AND SECURITY INTERESTS. The Project Credit Parties agree
that each Secured Party shall have the benefit of the following Liens on and
security interests in the Collateral:
3.1.1 COLLATERAL FOR BANK SECURED OBLIGATIONS. The Bank Secured
Obligations shall be secured by a first priority lien on and security interest
in the Bank Separate Collateral and the Shared Collateral, which first priority
lien and security interest in the Shared Collateral shall be pari passu in
priority with the lien and security interest in the Shared Collateral securing
the 2014 Notes Secured Obligations and the Obligations securing any Permitted
Additional Senior Secured Debt Agreement, subject to the sharing of proceeds
provisions hereof.
3.1.2 COLLATERAL FOR 2014 NOTES SECURED OBLIGATIONS. The 2014
Notes Secured Obligations shall be secured by a first priority lien on and
security interest in the 2014 Notes Separate Collateral and the Shared
Collateral, which first priority lien and security interest in the Shared
Collateral shall be pari passu in priority with the lien and security interest
in the Shared Collateral securing the Bank Secured Obligations and the
Obligations securing any Permitted Additional Senior Secured Debt Agreement,
subject to the sharing of proceeds provisions hereof.
3.1.3 COLLATERAL FOR OTHER PERMITTED SENIOR SECURED DEBT. The
Permitted Additional Senior Secured Debt Agreements shall be secured by a first
priority lien on and security interest in the Shared Collateral, which first
priority lien and security interest in the Shared Collateral shall be pari
passu in priority with the lien and security interest in the Shared Collateral
securing the Bank Secured Obligations and the 2014 Notes Secured Obligations,
subject to the sharing of proceeds provisions hereof.
3.1.4 COLLATERAL FOR SECOND LIEN SECURED OBLIGATIONS. The
Second Lien Secured Obligations shall be secured by a second priority lien on
and security interest in the Shared Collateral, which second priority lien and
security interest in the Shared Collateral shall be subject and subordinate to
the lien and security interest in the Shared Collateral securing the First Lien
Secured Obligations.
3.2 SEPARATE COLLATERAL. The 2014 Notes Separate Collateral secures
only the 2014 Notes Secured Obligations, and no other Project Credit Party
shall have any Liens thereon or any security interest therein. The Bank
Separate Collateral secures only the Bank Secured Obligations, and no other
Project Credit Party shall have any Liens thereon or any security interest
therein.
3.3 CONFIRMATION OF LIENS. Each Project Credit Party hereby
confirms and agrees that the Liens and security interests held by or for the
benefit of each Secured Party in the Collateral, as provided for in the
preceding provisions of this Section 3, shall secure all Obligations of the
Company Group and any Person within the Company Group now or hereafter owing to
each Secured Party in connection with the applicable Facility Agreement
throughout the term of this Agreement, in each case with the priority specified
in Section 3.1, notwithstanding (a) the availability of any other collateral to
any Secured Party, (b) the execution, delivery, recording, filing or perfection
of any of the Security Documents, the order of such execution, delivery,
recording, filing or perfection or the priorities which would otherwise result
therefrom, (c) the fact that any lien or security interest created by any of
the Security Documents, or any claim with respect thereto, is or may be
subordinated, avoided or disallowed in whole or in part under any Bankruptcy
Law, (d) the taking of possession of any Shared Collateral by any Project
Credit Party or (e) any other matter whatsoever. All provisions of this
Agreement, including but not limited to, all matters relating to the creation,
validity, perfection, priority, subordination and release of the Liens and
security interests intended to be created by the Shared Security Documents and
all provisions regarding the allocation and priority of payments with respect
to any Class of Secured Obligations shall survive any Insolvency or Liquidation
Proceeding and be fully enforceable by and against each Project Credit Party
during any such proceeding. In the event of an Insolvency or Liquidation
Proceeding, each Project Credit Party further confirms and agrees that the
Obligations due and outstanding under and with respect to each Class of Secured
Obligations shall include all principal, additional advances permitted
thereunder, Protective Advances made by such Project Credit Party and the
Secured Parties under its Facility Agreement, interest, default interest, LIBOR
breakage and swap breakage, post petition interest and all other amounts due
thereunder, for periods before and for periods after the commencement of any
such proceedings, even if the claim for such amounts is disallowed pursuant to
applicable law, and all proceeds from the sale or other disposition of the
Collateral shall be paid to the Secured Parties in the order and priority
provided for in this Section 3 notwithstanding the disallowance of any such
claim or the invalidity or subordination of any lien on or security interest in
the Collateral under applicable law.
4. RIGHTS AND LIMITATION OF ACTIONS WITH RESPECT TO COLLATERAL.
4.1 RIGHTS AND LIMITATIONS APPLICABLE TO SECOND LIEN SECURED
PARTIES.
4.1.1 Subject to Section 4.1.2, at any time prior to the
Discharge of all First Lien Secured Obligations, the Second Lien Secured
Parties shall not, and shall not authorize or direct the Collateral Agent or
any other Person acting for them or to, exercise any right or remedy with
respect to any Collateral (including any right of set-off) or take any action
to enforce, collect or realize upon any Collateral, including, without
limitation, any right, remedy or action to:
(a) take possession of or control over any Collateral;
(b) exercise any collection rights in respect of any
Collateral;
(c) exercise any right of set-off against any property
subject to any lien securing any First Lien Secured
Obligations;
(d) foreclose upon any Collateral or take or accept any
transfer of title in lieu of foreclosure upon any
Collateral;
(e) enforce any claim to the proceeds of insurance upon
any Collateral;
(f) deliver any notice, claim or demand relating to the
Collateral to any Person (including any securities
intermediary, depositary bank or landlord) in the
possession or control of any Collateral or acting as
bailee, custodian or agent for any of the First Lien
Secured Obligations in respect of any Collateral;
(g) otherwise enforce any remedy available upon default
for the enforcement of any lien upon any Collateral;
(h) deliver any notice or commence any proceeding for
any of the foregoing purposes;
(i) seek relief in any Insolvency or Liquidation
Proceeding permitting it to do any of the foregoing;
or
(j) subject to Section 4.2.3, retain any proceeds of
accounts and other obligations receivable paid to it
directly by any account debtor.
4.1.2 Notwithstanding Section 4.1.1, any right or remedy set
forth in clauses (a) through (j) thereof may be exercised and any such action
may be taken, authorized or instructed by the Second Lien Secured Parties:
(a) if all the First Lien Secured Obligations are
purchased by a Person entitled to purchase the
outstanding First Lien Secured Obligations upon
exercise of the Default Purchase Option; or
(b) as necessary to redeem any Collateral in a
creditor's redemption permitted by law or to deliver
(subject to the prior Discharge of the First Lien
Secured Obligations) any notice or demand necessary
to enforce any right to claim, take or receive
proceeds of Collateral remaining after the Discharge
of the First Lien Secured Obligations in the event
of foreclosure or other enforcement of any lien
securing the First Lien Secured Obligations, so long
as the enforcement of any such lien securing the
First Lien Secured Obligations is not adversely
affected or delayed.
4.1.3 Notwithstanding Section 4.1.1, any right or remedy set
forth in clauses (a) through (j) thereof may be exercised and any such action
may be taken, authorized or instructed by the Second Lien Secured Parties:
(a) as necessary to perfect a lien upon any Shared
Collateral by any method of perfection except
through possession or control;
(b) if an Event of Default shall have occurred and be
continuing under any Permitted Additional Junior
Secured Debt Agreement, subject to all the other
provisions of this Agreement, as necessary to prove
(but not enforce) the Liens upon any Shared
Collateral securing the Second Lien Secured
Obligations or as necessary to preserve or protect
(but not enforce) the Liens upon any Shared
Collateral securing the Second Lien Secured
Obligations in any manner that is not adverse to the
grant, perfection, priority or enforcement of Liens
securing the First Lien Secured Obligations and does
not adversely affect or delay any exercise or
enforcement of the rights and remedies of the First
Lien Secured Parties; or
(c) if an Event of Default shall have occurred and be
continuing under any Permitted Additional Junior
Secured Debt Agreement, after obtaining the prior
written consent of the Project Credit Party
representing each Class of First Lien Secured
Obligations, which consent shall be subject to each
such Project Credit Party's sole discretion.
4.1.4 Nothing in this Agreement or any other Financing
Agreement shall:
(a) impair, as between the Company Group and the Second
Lien Secured Parties, the obligation of the Company
and all Guarantors, which is absolute and
unconditional, to pay principal of, premium and
interest, if any, on the Second Lien Secured
Obligations in accordance with the terms of the
applicable Second Lien Documents;
(b) affect the relative rights of the Second Lien
Secured Parties, collectively, vis a vis creditors
of the Company or any other member of the Company
Group (other than the First Lien Secured Parties);
or
(c) if an Event of Default shall have occurred and be
continuing under any Permitted Additional Junior
Secured Debt Agreement, restrict the right of the
Second Lien Secured Parties to sue for payments that
are then due and owing or accelerate the Second Lien
Secured Obligations; provided that in the event any
Second Lien Secured Party becomes a judgment Lien
creditor in respect of Collateral as a result of its
enforcement of its rights as an unsecured creditor
with respect to the Second Lien Secured Obligations,
such judgment Lien shall be subject to the terms of
this Agreement for all purposes (including in
relation to the First Lien Secured Obligations) as
the other Liens securing the Second Lien Secured
Obligations are subject to this Agreement.
4.2 RIGHTS AND LIMITATIONS APPLICABLE TO THE FIRST LIEN SECURED
PARTIES.
4.2.1 Subject to Sections 4.2.2 and 4.2.3, at all times until
Discharge of all First Lien Secured Obligations, the Collateral Agent at the
direction of the Required Secured Parties shall have the exclusive right to
manage, perform and enforce the terms of the First Lien Security Documents with
respect to all Shared Collateral and to exercise and enforce all privileges and
rights thereunder according to its discretion and exercise of its business
judgment, including, without limitation, the exclusive right to take the
actions enumerated in clauses (a) through (j) of Section 4.1.1. Without
limiting the generality of the foregoing, until Discharge of all First Lien
Secured Obligations:
(a) the Collateral Agent acting at the direction of the
Required Secured Parties will have the sole right to
adjust settlement of all insurance claims and
condemnation awards in the event of any covered
loss, theft or destruction or condemnation of any
Collateral and all claims under insurance
constituting Shared Collateral;
(b) subject to Section 5.14 of the Disbursement
Agreement, all proceeds of insurance on or
constituting Shared Collateral and all condemnation
awards resulting from a taking of any Shared
Collateral will inure to the benefit of, and will be
paid to, the First Lien Secured Parties; and
(c) the Project Credit Parties with respect of each
Class of Second Lien Secured Obligations will
cooperate, if necessary and as reasonably requested
by the Bank Agent, the 2014 Notes Indenture Trustee,
the representatives for the holders of any
Indebtedness under any Permitted Additional Senior
Secured Debt Agreement or the Collateral Agent, in
effecting the payment of insurance proceeds to the
First Lien Secured Parties as described above.
In connection therewith, each Second Lien Secured Party waives any
and all rights to affect the method or challenge the appropriateness of any
action by the First Lien Secured Parties and, subject to Sections 4.2.2 and
4.2.3, hereby consents to each of the First Lien Secured Parties exercising or
not exercising such rights and remedies as if no lien securing any Second Lien
Secured Obligations existed, except only that the Second Lien Secured Parties
reserve all rights granted by law (i) to request or receive notice of any sale
of Shared Collateral in foreclosure of any Lien securing the First Lien Secured
Obligations and (ii) to redeem any Shared Collateral or enforce any right to
claim, take or receive proceeds of Shared Collateral remaining after the
Discharge of the First Lien Secured Obligations as provided in Section
4.1.2(b).
4.2.2 (a) Notwithstanding Sections 4.1.1(c) and 4.2.1, the
Second Lien Secured Parties shall be permitted to receive and retain, free from
any Liens or security interests in favor of the First Lien Secured Parties, any
and all payments made thereto by or on behalf of the Company Group or any
Person within the Company Group, other than:
(i) payments which are made prior to the Discharge of
all First Lien Secured Obligations in breach of any
provision of the Bank Credit Agreement, the 2014
Notes Indenture any Permitted Additional Senior
Secured Debt Document or any First Lien Security
Documents;
(ii) payments of amounts prior to the Discharge of all
First Lien Secured Obligations which constitute
proceeds from the sale, transfer or other
disposition of any Collateral or proceeds from any
insurance policy or condemnation settlement or
award, in each case, in respect of any Collateral;
(iii) payments obtained or received prior to the Discharge
of all First Lien Secured Obligations in connection
with or as a result of any breach of Sections
4.1.1(a) through (j); and
(iv) payments obtained or received prior to the Discharge
of all First Lien Secured Obligations (A) at any
time after the representative for each Class of
Second Lien Secured Obligations has received written
notice (and prior to the rescission of such notice)
that a Blocking Event has occurred or (B) at any
time after the commencement of an Insolvency or
Liquidation Proceeding in respect of the Company
Group or any Person within the Company Group.
Any payment received by any Second Lien Secured Party (including, without
limitation, payments and prepayments made for application against the Second
Lien Secured Obligations and all other payments and deposits made pursuant to
any provision of any Permitted Additional Junior Secured Debt Agreement or any
Second Lien Security Document) prior to the Discharge of all First Lien Secured
Obligations in violation of any of clauses (i) through (iv) above shall be held
in trust for the benefit of the First Lien Secured Parties and shall be turned
over to the Collateral Agent promptly upon the request of the Collateral Agent
or any other First Lien Secured Party.
(b Notwithstanding the provisions of Section 4.2.1, after the
occurrence and during the continuance of an Event of Default under the Bank
Credit Agreement or the 2014 Notes Indenture or any other First Lien Secured
Obligation, but so long as a Blocking Event has not occurred, the Collateral
Agent, at the direction of the Required Secured Parties, may seize control of
the Accounts and the Accounts Collateral and issue instructions to the
Disbursement Agent or any Securities Intermediary under any Collateral Account
Agreement with respect to the Accounts and the Accounts Collateral.
4.3 NOTIFICATION OF EVENTS OF DEFAULT. Each Project Credit Party
hereby agrees, for the benefit of each other Project Credit Party, to use its
best efforts to provide written notice to each other Project Credit Party
within 10 Banking Days after obtaining actual knowledge of the occurrence or
assertion of an Event of Default under their respective Financing Agreements.
No Project Credit Party shall have any liability to the other for failing to
provide any such notice, but such release from liability shall not affect the
First Lien Secured Parties' rights and obligations under Section 4.2.2.
4.4 CERTAIN WAIVERS BY SECOND LIEN SECURED PARTIES. To the fullest
extent permitted by law, the Second Lien Secured Parties waive and agree not to
assert or enforce at any time prior to the Discharge of the First Lien Secured
Obligations:
(a) any right of subrogation to the rights or interests
of the First Lien Secured Parties or any claim or
defense based upon impairment of any such right of
subrogation;
(b) any right of marshalling accorded to a junior
lienholder, as against a priority lienholder, under
equitable principles; and
(c) any statutory right of appraisal or valuation
accorded to a junior lienholder in a proceeding to
foreclose a senior lien;
in each case, that otherwise may be enforceable in respect of any lien securing
any of the Second Lien Secured Obligations as against the First Lien Secured
Parties.
5. RIGHTS AND LIMITATIONS WITH RESPECT TO AMENDMENTS, WAIVERS AND
OTHER ACTIONS UNDER FACILITY AGREEMENTS.
5.1 RIGHTS AND LIMITATIONS APPLICABLE TO SECOND LIEN SECURED
PARTIES. Prior to the Discharge of the First Lien Secured Obligations, the
Second Lien Secured Parties will not enter into, authorize or direct, any
amendment of or supplement to any Second Lien Security Document relating to any
Collateral that would make such document inconsistent in any material respect
with the comparable provisions of the First Lien Security Document upon such
Collateral. For purposes of the foregoing, any provision granting rights or
powers to any Second Lien Secured Party that are not granted to the First Lien
Secured Parties will constitute a material inconsistency.
5.2 RIGHTS AND LIMITATIONS APPLICABLE TO THE FIRST LIEN SECURED
PARTIES.
5.2.1 The First Lien Secured Parties may at any time and from
time to time, without the consent of or notice to any Second Lien Secured
Party, without incurring any responsibility or liability to any Second Lien
Secured Party and without in any manner prejudicing, affecting or impairing the
ranking or priority of the Liens and the security interests in the Collateral
created by the First Lien Security Documents or the rights and obligations of
the Project Credit Parties hereunder, take (or instruct the Collateral Agent to
take) any of the following:
(a) make loans and advances to the Company Group or any Person
within the Company Group or issue, guaranty or obtain
letters of credit for account of the Company Group or any
Person within the Company Group or otherwise extend credit
to the Company Group or any Person within the Company Group
in any amount and on any terms, whether pursuant to a
commitment or as a discretionary advance and whether or not
any default or Event of Default or failure of condition is
then continuing;
(b) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, compromise,
accelerate, extend or, subject to Section 10.14, refinance
any First Lien Secured Obligations or any agreement,
guaranty, lien or obligation of the Company Group or any
Person within the Company Group or any other Person in any
manner related thereto, or otherwise amend, supplement or
change in any manner any First Lien Secured Obligations or
Liens securing First Lien Secured Obligations or any such
agreement, guaranty, lien or obligation;
(c) increase or reduce the amount of any First Lien Secured
Obligation or the interest, premium, fees or other amounts
payable in respect thereof;
(d) release or discharge any First Lien Secured Obligation or
any guaranty thereof or any agreement or obligation of the
Company Group or any Person within the Company Group or any
other Person with respect thereto;
(e) take or fail to take any first priority lien or any other
collateral security for any First Lien Secured Obligation
or take or fail to take any action which may be necessary
or appropriate to ensure that any lien securing a First
Lien Secured Obligation or any other lien upon any property
is duly enforceable or perfected or entitled to priority as
against any other lien or to ensure that any proceeds of
any property subject to any lien are applied to the payment
of any First Lien Secured Obligation or any other
obligation secured thereby;
(f) release, discharge or permit the lapse of any or all Liens
securing a First Lien Secured Obligation or any other Liens
upon any property at any time;
(g) exercise or enforce, in any manner, order or sequence, or
fail to exercise or enforce, any right or remedy against
the Company or any Guarantor or any collateral security or
any other Person or property in respect of any First Lien
Secured Obligation or any lien securing any First Lien
Secured Obligation or any right or power under the First
Lien Security Documents and hereunder and apply any payment
or proceeds of collateral in any order of application; or
(h) sell, exchange, release, foreclose upon or otherwise deal
with any property that may at any time be subject to any
lien securing any First Lien Secured Obligation.
5.2.2 No (a) exercise, delay in exercising or failure to
exercise any right arising under the First Lien Security Documents or this
Agreement, (b) act or omission of any First Lien Secured Party in respect of
the Company Group or any Person within the Company Group or any other Person or
any collateral security for any First Lien Secured Obligation or any right
arising under the First Lien Security Documents and hereunder, (c) change,
impairment, or suspension of any right or remedy of any First Lien Secured
Party, or (d) other act, failure to act, circumstance, occurrence or event,
including, without limitation, the acts listed in Section 5.2.1, which, but for
this provision, would or could act as a release or exoneration of the
agreements or obligations of any Second Lien Secured Party hereunder shall in
any way affect, decrease, diminish or impair any of such agreements or
obligations, including, without limitation, the lien subordination provisions
and the standstill obligations set forth in Sections 3.1 and 4.1.
5.3 WAIVERS AND DEFERRALS OF PAYMENTS. Any Project Credit Party
may, without the consent of the other Project Credit Parties, defer any
payments due under its Class of Secured Obligations or waive any provisions
thereof.
5.4 LIMITATION OF LIABILITY
5.4.1 Except as expressly set forth herein (and, with respect
to any rights or obligations among Secured Parties within the same Class, in
their respective Facility Agreements), no Secured Party will have any duty,
express or implied, fiduciary or otherwise, to any other Secured Party.
5.4.2 To the maximum extent permitted by law, each Secured
Party waives any claim it may have against any other Secured Party with respect
to or arising out of any action or failure to act or any error of judgment or
negligence on the part of any other Secured Party or their respective
directors, officers, employees or agents with respect to any exercise of rights
or remedies in respect of the Secured Obligations or under the Shared Security
Documents or any transaction relating to the Collateral. Neither any Secured
Party nor any of their respective directors, officers, employees or agents will
be liable for failure to demand, collect or realize upon any of the Collateral
or for any delay in doing so, except to the extent arising out of the gross
negligence or willful misconduct of such Secured Party or any of their
respective directors, officers, employees or agents, or will be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
any Person within the Company Group or upon the request of any other Secured
Party or any other Person or to take any other action whatsoever with regard to
the Collateral or any part thereof.
5.4.3 Each Secured Party (subject to its respective Facility
Agreement) shall be responsible for keeping itself informed of the financial
condition of the Company Group and all other circumstances bearing upon the
risk of nonpayment of any Secured Obligations. Except as set forth in Section
4.3, no Project Credit Party shall have any duty to advise any other Project
Credit Party of information regarding such condition or circumstances or as to
any other matter. Subject, with respect to any rights and obligations among
Secured Parties of the same Class, to the provisions of their respective
Facility Agreements, if any Secured Party, in its sole discretion, undertakes
at any time or from time to time to provide any such information to any other
Secured Party, it shall be under no obligation to provide any similar
information on any subsequent occasion, to provide any additional information,
or undertake any investigation, or to disclose any information which, pursuant
to accepted or reasonable commercial finance practice, it wishes to maintain
confidential.
6. INSOLVENCY OR LIQUIDATION PROCEEDINGS
6.1 RIGHT TO FILE INVOLUNTARY BANKRUPTCY. Notwithstanding any
other provision of this Agreement to the contrary, any Project Credit Party
shall be entitled, at any time and at its sole discretion, to initiate or join
as a petitioning creditor in an involuntary Insolvency or Liquidation
Proceeding against any Person within the Company Group.
6.2 CERTAIN AGREEMENTS AND CONSENTS BY SECOND LIEN SECURED sPARTIES.
6.2.1 At no time prior to the Discharge of all First Lien
Secured Obligations shall any Second Lien Secured Party:
(a) request judicial relief in an Insolvency or Liquidation
Proceeding or in any other court, that would hinder, delay,
limit or prohibit the exercise or enforcement of any right or
remedy otherwise available to the holders of First Lien
Secured Obligations that would limit, invalidate, avoid or
set aside any lien securing the First Lien Secured
Obligations or subordinate the lien securing the First Lien
Secured Obligations to the Liens securing the Second Lien
Secured Obligations or grant the Liens securing the Second
Lien Secured Obligations equal ranking to the Liens securing
the First Lien Secured Obligations;
(b) oppose or otherwise contest any motion for relief from the
automatic stay or from any injunction against foreclosure or
enforcement of Liens securing the First Lien Secured
Obligations made by any holder of First Lien Secured
Obligations in any Insolvency or Liquidation Proceeding;
(c) oppose or otherwise contest any exercise by any holder of
First Lien Secured Obligations of the right to credit bid
First Lien Secured Obligations at any sale in foreclosure of
lien securing the First Lien Secured Obligations; or
(d) oppose or otherwise contest any other request for judicial
relief made in any court by any holder of First Lien Secured
Obligations relating to the enforcement of any lien securing
the First Lien Secured Obligations.
6.2.2 If, in any Insolvency or Liquidation Proceeding prior to
the Discharge of all First Lien Secured Obligations, the First Lien Secured
Parties:
(a) consent to any order for use of cash collateral for payment
of (i) expenses reasonably necessary or appropriate for the
conduct of the Phase I Project and/or the Phase II Project or
for the preservation of the Collateral, (ii) debt secured by
Liens upon the Shared Collateral that are senior to the Liens
securing the Second Lien Secured Obligations or (iii)
administrative expenses arising in connection with the
Insolvency or Liquidation Proceeding;
(b) consent to any order granting any priming lien, replacement
lien, cash payment or other relief on account of First Lien
Secured Obligations as adequate protection (or its
equivalent) for the interests of the First Lien Secured
Parties in property subject to the Liens securing the First
Lien Secured Obligations in connection with any order for use
of cash collateral; or
(c) consent to any order relating to any sale of assets of any
Person within the Company Group and providing, to the extent
the sale is to be free and clear of Liens, that all such
Liens shall attach to the proceeds of the sale, and, in
connection therewith, consent to and support before the court
any request for Credit Bid Rights made by any Second Lien
Secured Party (except that the First Lien Secured Parties
need not admit, consent to or support any valuation of the
Collateral alleged in support of the allowance of any secured
claim based upon the Liens securing the Second Lien Secured
Obligations),
then, so long as the First Lien Secured Parties do not oppose or
otherwise contest any request made by any Second Lien Secured Party
(which may be made only if, pursuant to any such order, the First
Lien Secured Parties are, or are to be, granted a lien upon any
property) for the grant to a representative of behalf of, and for
the benefit of, the Second Lien Secured Parties and as adequate
protection (or its equivalent) for such representative's interest
in the Collateral pursuant to the Liens securing the applicable
Second Lien Secured Obligations of a junior lien upon such property
that is co-extensive in all respects with, but subordinated (as set
forth herein) in all respects to, all Liens securing the First Lien
Secured Obligations upon such property and any such lien granted to
the First Lien Secured Parties pursuant to such order,
the Second Lien Secured Parties will not oppose or otherwise contest the entry
of such order, except that any such order relating to a sale of assets may be
opposed or otherwise contested by them (x) as necessary to secure the grant of
Credit Bid Rights or (y) based on any ground that may be asserted by a holder
of unsecured claims (but not except for Credit Bid Rights, on any grounds
arising from or relating to any lien securing the Second Lien Secured
Obligations or any secured claim or secured creditor rights based on any lien
securing the Second Lien Secured Obligations).
6.2.3 If, in any Liquidation or Insolvency Proceeding, debt
obligations of the reorganized debtor secured by Liens upon any property of the
reorganized debtor are distributed pursuant to a plan of reorganization or
similar dispositive restructuring plan, on more than one Class of Secured
Obligations, then, to the extent the debt obligations distributed on such
account are secured by Liens upon the same property, the provisions of this
Agreement will survive the distribution of such debt obligations pursuant to
such plan and will apply with like effect to the Liens securing such debt
obligations.
6.2.4 The Second Lien Secured Parties will not assert or
enforce, at any time prior to the Discharge of the First Lien Secured
Obligations, any claim under ss.506(c) of the United States Bankruptcy Code
with respect to the Liens securing the First Lien Secured Obligations for costs
or expenses of preserving or disposing of any Shared Collateral.
6.2.5 If, for purposes of valuation of the secured claims of
the First Lien Secured Parties in any Insolvency or Liquidation Proceeding, the
First Lien Secured Parties determine, and the Collateral Agent or any other
First Lien Secured Party notifies any Project Credit Party on behalf of any
Class of Second Lien Secured Obligations, that the Collateral should be valued
as of any particular time in the period from the date of commencement of such
Insolvency or Liquidation Proceeding to the date of confirmation of any plan of
reorganization or other dispositive restructuring plan therein, then the Second
Lien Secured Parties shall not oppose or otherwise contest that the date as of
which such secured claims should be valued is the date chosen by the First Lien
Secured Parties, but the Second Lien Secured Parties shall remain free (a) to
contest without any restriction any valuation claimed or asserted by the First
Lien Secured Parties as of such date and (b) to assert and seek relief
determining that the Collateral should be valued at another date if a valuation
at the other date would have the effect of placing a higher value upon the
Collateral, taken as a whole. Notwithstanding the foregoing, the Second Lien
Secured Parties shall not have the right to assert the lack of adequate
protection of their Liens or the collateral securing the Second Lien Secured
Obligations as a basis for opposing a motion or other relief sought in any
Insolvency or Liquidation Proceeding and approved by the First Lien Secured
Parties.
6.2.6 If, in connection with the approval by creditors of any
plan of reorganization or other dispositive restructuring plan in any
Insolvency or Liquidation Proceeding, either:
(a) secured claims based upon the Second Lien Secured Obligations
are classified in the same class of secured claims as secured
claims based upon the First Lien Secured Obligations; or
(b) secured claims based upon the Second Lien Secured Obligations
are classified in a separate class from secured claims based
upon the First Lien Secured Obligations and are treated under
such plan as an impaired secured class, and such plan could
not lawfully be confirmed or approved by the court in such
Insolvency or Liquidation Proceeding unless the class of
secured claims based upon the Second Lien Secured Obligations
votes, as a class or as classes, to accept such plan;
then the holders of secured claims based upon the Second Lien Secured
Obligations shall not vote such secured claims to accept such plan if: (i) the
Collateral Agent or any other First Lien Secured Party notifies the holders of
such secured claims (in such manner and to such Person at such addresses as
each Project Credit Party on behalf of any Class of Second Lien Secured
Obligations may direct), at least 10 Banking Days before ballots are due in the
voting on such plan, that fewer than the holders of two-thirds in amount of
secured claims based upon the Bank Secured Obligations or fewer than the
holders of two-thirds in amount of secured claims based upon the 2014 Notes
Secured Obligations or fewer than the holders of two-thirds in amount of
secured claims based upon Obligations under any Permitted Additional Senior
Secured Debt Agreement will vote, in each case as a separate class (or as if
they were a separate class), to accept such plan, (ii) such notice is not
withdrawn by the Collateral Agent or any other First Lien Secured Party by
written notice to such Project Credit Party (or, if required by law, to the
holders of such secured claims) and (iii) such plan is not accepted by the
holders of secured claims based upon the First Lien Secured Obligations voting
as a separate class (or as if they were a separate class).
The Project Credit Party on behalf of each Class of Second Lien
Secured Obligations shall provide the Collateral Agent with such information as
may be available to such Project Credit Party as to the names and notice
addresses of the holders of secured claims based upon such Class of Second Lien
Secured Obligations. The notice described in clause (i) of the preceding
paragraph shall be conclusively deemed sufficiently given if mailed by ordinary
mail, postage prepaid, to such names and addresses. No ballot voting a secured
claim based upon any of the Second Lien Secured Obligations shall be delivered
in respect of any such plan by any holder of secured claims based upon any of
the Second Lien Secured Obligations prior to the last date on which the notice
described in clause (i) may be given. Any ballot cast in violation of this
Section 6.2.6 will be invalid.
6.3 AVOIDANCE OF BANK SECURED OBLIGATIONS IN BANKRUPTCY. If (a) any
lien securing a First Lien Secured Obligation is avoided in any Insolvency or
Liquidation Proceeding, (b) by reason of such avoidance, there is a resultant
reduction (a "FIRST LIEN SECURED CLAIM REDUCTION") in the amount of the secured
claims (without regard to unsecured claims) that, but for such avoidance, would
have been allowed in such Insolvency or Liquidation Proceeding on account of
claims based upon First Lien Secured Obligations, and (c) a distribution is
made in such Insolvency or Liquidation Proceeding on account of secured claims
(without regard to any unsecured claims) based upon the Second Lien Secured
Obligations, whether such distribution is made in cash, securities or
otherwise, or any Second Lien Secured Party or representative of any Second
Lien Secured Party receives any proceeds from the foreclosure or other
enforcement of the Liens securing any of the Second Lien Secured Obligations
(such distribution or receipt, a "SECOND LIEN RECOVERY"), then a portion of
such Second Lien Recovery (the "SHAREABLE RECOVERY") determined by multiplying:
(i) a percentage by dividing (A) the aggregate amount
allowed in such Insolvency or Liquidation Proceeding
on account of all unsecured claims based upon First
Lien Secured Obligations (after giving effect to
such avoidance) by (B) the aggregate amount allowed
in such Insolvency or Liquidation Proceeding on
account of all unsecured claims based upon First
Lien Secured Obligations (after giving effect to
such avoidance) and all secured and unsecured claims
based upon Second Lien Secured Obligations; by
(ii) the lesser of (A) the amount of such First Lien
Secured Claim Reduction and (B) the amount of such
Second Lien Recovery,
shall be received and held by the applicable Second Lien Secured Party or
representative of Second Lien Secured Party subject to an option, exercisable
solely by the Collateral Agent at the direction of the Required Secured Parties
by written notice delivered to such Second Lien Secured Party or representative
no later than the 20th Banking Day after the latest of:
(1) the date on which such Second Lien Recovery is received;
(2) the date on which the amount (if any) of secured
claims and unsecured claims based on the First Lien
Secured Obligations and the Second Lien Secured
Obligations are allowed in such Insolvency or
Liquidation Proceeding; and
(3) the date on which the amount of such First Lien
Secured Claim Reduction is determined,
to exchange the Shareable Recovery (in the form received, with any interest
accrued thereon) for an equivalent amount (net of any such accrued interest) of
unsecured claims allowed in such Insolvency or Liquidation Proceeding based
upon First Lien Secured Obligations or for any substantially contemporaneous
distribution (exchanged in the form received, with any interest accrued
thereon) made in such Insolvency or Liquidation Proceeding on account of such
equivalent amount of unsecured claims based upon First Lien Secured
Obligations. Such exchange shall be made by each party thereto without any
recourse, representation, warranty or liability whatsoever.
6.4 NO OTHER RESTRICTIONS ON SECOND LIEN SECURED PARTIES.
Notwithstanding any other provision of this Agreement to the contrary, except
as expressly provided herein, the Second Lien Secured Parties shall not, in any
Insolvency or Liquidation Proceeding, be restricted in voting any secured
claims based upon the Second Lien Secured Obligations and will not be in any
respect restricted in voting any unsecured claims based upon the Obligations
outstanding under any Second Lien Documents.
7. DEFAULT PURCHASE OPTION. Each Project Credit Party on behalf of
each Class of First Lien Secured Obligations hereby grants the Project Credit
Parties on behalf of each Class of Second Lien Secured Obligations the right
(without any obligation) to purchase, at any time during the period that begins
when all commitments to extend credit constituting all First Lien Secured
Obligations have terminated and all First Lien Secured Obligations have matured
(whether at the stated maturity, upon acceleration or otherwise, including by
virtue of the commencement of an Insolvency or Liquidation Proceeding) and ends
on the 45th day after receipt by the Project Credit Parties on behalf of each
Class of Second Lien Secured Obligations of written notice of such maturity
from the Project Credit Party on behalf of the applicable First Lien Secured
Obligations, all, but not less than all, of the principal of and interest on
and all prepayment or acceleration penalties and premiums in respect of all
First Lien Secured Obligations outstanding at the time of purchase and all
other First Lien Secured Obligations then outstanding, together with all Liens
securing such First Lien Secured Obligations and all guarantees and other
supporting obligations relating to such First Lien Secured Obligations:
(a) for a purchase price equal to 100% of the principal amount
and accrued interest outstanding on the First Lien Secured
Obligations on the date of purchase (including fees and
interest accruing after the commencement of a Liquidation or
Insolvency Proceeding at the rate provided for in any
Facility Agreement related to any First Lien Secured
Obligation (regardless of whether such item is an allowed
claim under applicable law) and any costs of collection) plus
all other First Lien Secured Obligations (including any LIBOR
breakage costs but excluding any prepayment or acceleration
penalty or premium) then unpaid;
(b) with such purchase price payable in cash on the date of
purchase against transfer to an Eligible Purchaser or its
nominee or transferee (without recourse and without any
representation or warranty whatsoever, whether as to the
enforceability of any First Lien Secured Obligations or the
validity, enforceability, perfection, priority or sufficiency
of any lien securing or guarantee or other supporting
obligation for any First Lien Secured Obligations or as to
any other matter whatsoever, except only the representation
and warranty that the transferor is transferring free and
clear of all Liens and encumbrances (other than that will be
satisfied and discharged concurrently with the closing of the
purchase from the proceeds of the purchase price), and has
good right to convey whatever claims and interests it
purports to have in respect of First Lien Secured Obligations
and any such Liens, guarantees and supporting obligations
pursuant to the applicable Facility Agreement and/or Shared
Security Documents);
(c) with such purchase accompanied by a deposit of cash
collateral under the dominion and control of the Collateral
Agent on behalf of the First Lien Secured Parties in an
amount equal to 105% of the undrawn amount of each letter of
credit then outstanding as Bank Secured Obligations and each
letter of credit then outstanding as any other First Lien
Secured Obligations, as security for the additional
obligation of the purchaser to purchase, at par plus accrued
interest, the reimbursement obligation in respect of each
such letter of credit as and when each such letter of credit
is funded and to pay all Bank Secured Obligations or any
other First Lien Secured Obligations, as applicable, then
outstanding with respect to each such letter of credit; and
(d) pursuant to an Assignment and Acceptance in the form of
Exhibit E to the Bank Credit Agreement and otherwise
consistent with this Section 7.
8. APPLICATION OF PROCEEDS OF SHARED COLLATERAL.
8.1 APPLICATION OF PROCEEDS GENERALLY. All monies collected by the
Collateral Agent or any other Secured Party (i) in connection with an Event of
Loss, to the extent required to be used to prepay the Secured Obligations in
accordance with the Facility Agreements (provided that any proceeds from an
Event of Loss received by the Collateral Agent which are to be applied pursuant
to the Disbursement Agreement to repair or restore the Projects shall be
promptly delivered by the Collateral Agent to the Disbursement Agent), or (ii)
upon any sale or other disposition of any Shared Collateral pursuant to the
enforcement of any of the Shared Security Documents with respect to Shared
Collateral or the exercise of any of the remedial provisions thereof, together
with all other monies received by the Collateral Agent or any other Secured
Party hereunder or under the Shared Security Documents with respect to Shared
Collateral as a result of any such enforcement or the exercise of any such
remedial provisions or as a result of any distribution of any Shared Collateral
upon the bankruptcy, arrangement, receivership, assignment for the benefit of
creditors or any other action or proceeding involving the readjustment of the
obligations and indebtedness of any Person within the Company Group, or the
application of any Shared Collateral to the payment thereof or any distribution
of the Shared Collateral upon the liquidation or dissolution of any Person
within the Company Group, or the winding up of the assets or business of any
Person within the Company Group, or any distribution made on or in connection
with any Facility Agreement or otherwise payable under any Shared Security
Documents with respect to Shared Collateral shall be applied as follows:
(a) first, to the payment of all amounts owing to the Collateral
Agent in the event of any proceeding for the collection or
enforcement of any indebtedness or payment obligations of any
member of the Company Group, after an Event of Default shall
have occurred and be continuing, the reasonable expenses of
re-taking, holding, preparing for sale or lease, selling or
otherwise disposing of or realizing on the Shared Collateral,
or of any exercise by the Collateral Agent of its rights
hereunder or under the Shared Security Documents with respect
to Shared Collateral, together with reasonable attorneys'
fees and court costs;
(b) second, to the extent proceeds remain after the application
pursuant to the preceding clause (a), an amount equal to the
outstanding Primary Obligations shall be paid to the First
Lien Secured Parties as provided in Section 8.2, with each
Class of First Lien Secured Parties collectively receiving an
amount equal to their respective aggregate outstanding
Primary Obligations or, if the proceeds are insufficient to
pay in full all such Primary Obligations, their respective
Pro Rata Share of the amount remaining to be distributed;
(c) third, to the extent proceeds remain after the application
pursuant to the preceding clauses (a) and (b), an amount
equal to the outstanding Secondary Obligations shall be paid
to the First Lien Secured Parties as provided in Section 8.2,
with each Class of First Lien Secured Parties collectively
receiving an amount equal to their respective aggregate
outstanding Secondary Obligations or, if the proceeds are
insufficient to pay in full all such Secondary Obligations,
their respective Pro Rata Share of the amount remaining to be
distributed;
(d) fourth, to the extent proceeds remain after the application
pursuant to the preceding clauses (a) through (c), inclusive,
an amount equal to the outstanding Primary Obligations shall
be paid to the Second Lien Secured Parties as provided in
Section 8.2, with each Class of Second Lien Secured Parties
collectively receiving an amount equal to their respective
aggregate outstanding Primary Obligations or, if the proceeds
are insufficient to pay in full all such Primary Obligations,
their respective Pro Rata Share of the amount remaining to be
distributed;
(e) fifth, to the extent proceeds remain after the application
pursuant to the preceding clauses (a) through (d), inclusive,
an amount equal to the outstanding Secondary Obligations
shall be paid to the Second Lien Secured Parties as provided
in Section 8.2, with each Class of Second Lien Secured
Parties collectively receiving an amount equal to their
respective aggregate outstanding Secondary Obligations or, if
the proceeds are insufficient to pay in full all such
Secondary Obligations, their respective Pro Rata Share of the
amount remaining to be distributed;
(f) sixth, to the extent proceeds remain after the application
pursuant to the preceding clauses (a) through (e), inclusive,
and following the termination of this Agreement pursuant to
the terms hereof, to the respective Person within the Company
Group under its respective Security Documents, or to whomever
may be lawfully entitled to receive such surplus.
8.2 CERTAIN TERMS. For purposes of this Agreement (a) "Pro Rata
Share" means, when calculating each Class of Secured Parties' respective
portions of any distribution or amount, the amount (expressed as a percentage)
equal to a fraction the numerator of which is the then aggregate unpaid amount
of the Primary Obligations or Secondary Obligations, as the case may be, owed
to such Class of Secured Parties and the denominator of which is the then
outstanding amount of all Primary Obligations or Secondary Obligations, as the
case may be, (b) "Primary Obligations" means all principal of, and interest on
and other extensions of credit under such Class of Secured Obligations; in each
case, including any Protective Advances made by any First Lien Secured Party to
preserve the Shared Collateral or to preserve its security interest in the
Shared Collateral but excluding indemnities, fees (including, without
limitation, attorneys' fees) and similar obligations and liabilities and (c)
"Secondary Obligations" means all Obligations owed to such Class of Secured
Parties other than Primary Obligations; provided, however, that the principal
amount will be calculated without duplication of the underlying obligation for
any guarantees.
8.3 SHARING OF NON-PRO RATA PAYMENTS. Each First Lien Secured Party
agrees that in the event any First Lien Secured Party shall obtain payment that
is not a Pro Rata Payment of any amounts due to it on or in respect of any
First Lien Secured Obligations and such payment arises from the items or
circumstances listed in items (a), (b) or (c) below, then such First Lien
Secured Party shall promptly remit to the Collateral Agent for distribution to
other First Lien Secured Parties the portion of such payment necessary to
ensure that each First Lien Secured Party shall have received a Pro Rata
Payment; provided that, if at such time redistribution of such payment in such
manner is inadvisable in the reasonable judgment of the Collateral Agent, then
at the request of such First Lien Secured Party, the Project Credit Parties
representing such First Lien Secured Parties shall promptly consult with each
other to determine whether there is a preferable manner to make equitable
adjustments (including the purchase by such First Lien Secured Parties) to
permit all First Lien Secured Parties to share such payment (net of expenses
incurred by the recipient First Lien Secured Party in obtaining or preserving
such payment) pro rata (in accordance with the definition of Pro Rata Payment).
If any such redistributed or shared payment is rescinded or must otherwise be
restored by the First Lien Secured Party who originally obtained such payment,
then each First Lien Secured Party which shares the benefit of such payment
shall return to such First Lien Secured Party its portion of the payment so
rescinded or required to be restored. The payments that are subject to the
foregoing provisions are those that: (a) arise from any exercise of a right of
setoff, banker's lien or counterclaim, or from any security or from any
realization (whether through attachment, foreclosure or otherwise) of assets of
any member of the Company Group, (b) are made after an Event of Default has
occurred and is continuing, or (c) are made in connection with the events or
circumstances described in Section 3.09 of the 2014 Notes Indenture, but in the
case of this clause (c), only to the extent that a prepayment of principal
outstanding under any Class of First Lien Secured Obligations is required in
connection with the same events or circumstances.
8.4 OVERPAYMENTS. When payments to Secured Parties are based upon
their respective Pro Rata Shares, the amounts received by such Secured Parties
hereunder shall be applied (for purposes of making determinations under this
Section 8 only) (a) first, to their Primary Obligations and (b) second, to
their Secondary Obligations. If any payment to any Secured Party of its Pro
Rata Share of any distribution would result in overpayment to such Secured
Party, then (x) such Secured Party shall promptly notify the other Secured
Parties within the same Class as such Secured Party of such overpayment and (y)
the amount of such overpayment shall instead be distributed in respect of the
unpaid Primary Obligations or Secondary Obligations, as the case may be, of the
other Secured Parties of such Class. Each Secured Party of such Class whose
Primary Obligations or Secondary Obligations, as the case may be, have not been
paid in full shall receive an amount equal to such overpayment amount
multiplied by a fraction the numerator of which is the unpaid Primary
Obligations or Secondary Obligations, as the case may be, of such Secured Party
and the denominator of which is the unpaid Primary Obligations or Secondary
Obligations, as the case may be, of all Secured Parties entitled to such
distributions.
8.5 PAYMENT TO CLASS REPRESENTATIVES. All payments required to be
made under this Section 8 shall be made, with respect to each Class of Secured
Parties, to the Project Credit Party acting on behalf of such Class. Each such
Project Credit Party shall apply such funds in accordance with its respective
Facility Agreement.
9. REPRESENTATIONS AND WARRANTIES. Each Project Credit Party
represents and warrants to each other Project Credit Party as follows:
9.1 ORGANIZATION. It is duly organized and is validly existing
under the laws of the jurisdiction under which it was organized with full power
to execute, deliver, and perform this Agreement and consummate the transactions
contemplated hereby.
9.2 AUTHORIZATION. All actions necessary to authorize the
execution, delivery and performance of this Agreement on behalf of such party
have been duly taken, and all such actions continue in full force and effect as
of the date hereof.
9.3 BINDING AGREEMENT. It has duly executed and delivered this
Agreement and this Agreement constitutes the legal, valid, and binding
agreement of such party enforceable in accordance with its terms and subject to
(a) Bankruptcy Laws, and (b) principles of equity, which may apply regardless
of whether a proceeding is brought in law or in equity.
9.4 NO CONSENT REQUIRED. To the best of its knowledge, no consent
of any other party and no consent, license, approval, or authorization of, or
exemption by, or registration or declaration or filing with, any governmental
authority, bureau or agency is required in connection with the execution,
delivery, or performance by such party of this Agreement or consummation by
such party of the transactions contemplated by this Agreement.
9.5 NO CONFLICT. None of the execution, delivery, and performance
of this Agreement nor the consummation of the transactions contemplated by this
Agreement will (a) violate or conflict with any provision of the organizational
or governing documents, if any, of such party; (b) to the best of its
knowledge, violate, conflict with, or result in the breach or termination of,
or otherwise give any other contracting party the right to terminate, or
constitute (or with notice or lapse of time, or both, would constitute) a
default under the terms of any contract, mortgage, lease, bond, indenture,
agreement, or other instrument to which such party is a party or to which any
of its properties are subject; (c) to the best of its knowledge, result in the
creation of any lien, charge, encumbrance, mortgage, lease, claim, security
interest, or other right or interest upon the properties or assets of such
party pursuant to the terms of any such contract, mortgage, lease, bond,
indenture, agreement, franchise, or other instrument; (d) violate any judgment,
order, injunction, decree, or award of any court, arbitrator, administrative
agency, or governmental or regulatory body of which it has knowledge against,
or binding upon such party or upon any of the securities, properties, assets,
or business of such party; or (e) to the best of its knowledge, constitute a
violation by such party of any statute, law, or regulation that is applicable
to such party.
10. MISCELLANEOUS PROVISIONS.
10.1 NOTICES; ADDRESSES. Any communications between the Project
Credit Parties hereto or notices herein to be given may be given to the
following addressees:
If to the Bank Agent: Deutsche Bank Trust Company Americas
c/o Deutsche Bank Securities Inc.
200 Crescent Court, Suite 550
Dallas, TX 75201
Attn: Gerard Dupont
Facsimile No.: (214) 740-7910
If to the 2014 Notes U.S. Bank National Association
Indenture Trustee: Corporate Trust Services
60 Livingston Avenue
St. Paul, MN 55107 Attn: Lori
Rosenberg Facsimile No.: (651)
495-8097
If to the Collateral Agent: Deutsche Bank Trust Company Americas
60 Wall Street, 27th Floor
New York, NY 10005
Attention: Estelle Lawrence
Facsimile No.: (732) 578-4636
All notices or other communications required or permitted to be given hereunder
shall be in writing and shall be considered as properly given (a) if delivered
in person, (b) if sent by reputable overnight delivery service, (c) in the
event overnight delivery services are not readily available, if mailed by first
class mail, postage prepaid, registered or certified with return receipt
requested or (d) if sent by prepaid telex, or by telecopy with correct answer
back received. Notice so given shall be effective upon receipt by the
addressee, except that any communication or notice so transmitted by telecopy
or other direct written electronic means shall be deemed to have been validly
and effectively given on the day (if a Banking Day and, if not, on the next
following Banking Day) on which it is validly transmitted if transmitted before
4 p.m., recipient's time, and if transmitted after that time, on the next
following Banking Day; provided, however, that if any notice is tendered to an
addressee and the delivery thereof is refused by such addressee, such notice
shall be effective upon such tender. Any party shall have the right to change
its address for notice hereunder to any other location by giving of no less
than twenty (20) days' notice to the other parties in the manner set forth
hereinabove.
10.2 FURTHER ASSURANCES. Each Project Credit Party (a) shall
deliver to each other Project Credit Party, to the Disbursement Agent and to
any Securities Intermediary such instruments, agreements, certificates and
documents as any such Person may reasonably request to confirm the validity and
priority of the Liens on and security interests in the Collateral granted
pursuant to the Security Documents as affected hereby, (b) shall fully
cooperate with each other, with the Disbursement Agent and with any Securities
Intermediary, and (c) shall perform all additional acts reasonably requested by
any such Person to effect the purposes of this Agreement.
10.3 WAIVER. Any waiver, permit, consent or approval of any kind or
character on the part of any of the Project Credit Parties, the Disbursement
Agent or any Securities Intermediary of any Potential Event of Default, Event
of Default or other breach or default under this Agreement, any Security
Document or any other Financing Agreement, or any waiver on the part of any of
the Project Credit Parties, the Disbursement Agent or any Securities
Intermediary, of any provision or condition of this Agreement or any other
operative document, must be in writing and shall be effective only to the
extent in such writing specifically set forth.
10.4 ENTIRE AGREEMENT. As among the Project Credit Parties, this
Agreement and any agreement, document or instrument attached hereto or referred
to herein integrate all the terms and conditions mentioned herein or incidental
hereto and supersede all oral negotiations and prior writings in respect to the
subject matter hereof, all of which negotiations and writings are deemed void
and of no force and effect. As among the Project Credit Parties, in the event
of any conflict between the terms of this Agreement and the terms of the
Disbursement Agreement, the terms of this Agreement shall control.
10.5 GOVERNING LAW. This Agreement shall be governed by the laws of
State of New York of the United States of America and shall for all purposes be
governed by and construed in accordance with the laws of such state without
regard to the conflict of law rules thereof other than Sections 5-1401 and
5-1402 of the New York General Obligations Law.
10.6 SEVERABILITY. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby, and the parties hereto
shall enter into good faith negotiations to replace the invalid, illegal or
unenforceable provision.
10.7 HEADINGS. Section headings have been inserted in this
Agreement as a matter of convenience for reference only and it is agreed that
such headings are not a part of this Agreement and shall not be used in the
interpretation of any provision of this Agreement.
10.8 LIMITATIONS ON LIABILITY. No claim shall be made by any
Project Credit Party or any of its Affiliates against any other Project Credit
Party, the Disbursement Agent, any Securities Intermediary or any of their
respective Affiliates, directors, employees, attorneys or agents for any
special, indirect, consequential or punitive damages (whether or not the claim
therefor is based on contract, tort or duty imposed by law), in connection
with, arising out of or in any way related to the transactions contemplated by
this Agreement or any act or omission or event occurring in connection
therewith; and each Project Credit Party hereby waives, releases and agrees not
to sue upon any such claim for any such special, indirect, consequential or
punitive damages, whether or not accrued and whether or not known or suspected
to exist in its favor.
10.9 CONSENT OF JURISDICTION. Any legal action or proceeding
arising out of this Agreement may be brought in or removed to the courts of the
State of New York, in and for the County of New York, or of the United States
of America for the Southern District of New York. By execution and delivery of
this Agreement, each Project Credit Party, accepts, for its and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts for legal proceedings arising out of or in connection with this
Agreement and irrevocably consents to the appointment of the Prentice-Hall
Corporation System Inc. as its agent to receive service of process in New York,
New York. Nothing herein shall affect the right to serve process in any other
manner including judicial or non-judicial foreclosure of real property
interests which are part of the Collateral. Each Project Credit Party hereby
waives any right to stay or dismiss any action or proceeding under or in
connection with any or all of the Project, this Agreement or any other
operative document brought before the foregoing courts on the basis of forum
non-conveniens.
10.10 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, this Agreement shall
terminate upon the Discharge of all but one of the Classes of Secured
Obligations (and each Secured Party whose Secured Obligations have been
Discharged shall cease to be a party hereto with respect to such Secured
Obligations upon such Discharge). Upon the Discharge of all but one of the
Classes of Secured Obligations, the Collateral Agent agrees to deliver any and
all Shared Collateral of which it has possession (subject to the terms of the
Shared Security Documents), either directly or through an agent, custodian or
other representative as requested by the Project Credit Party whose Secured
Obligations have not been discharged, and to notify each Securities
Intermediary, each counterparty to a Consent and such other Persons as such
Project Credit Party may reasonably request that such obligations have been
terminated and discharged in full.
10.11 COUNTERPARTS. This Agreement may be executed in one or more
duplicate counterparts and when signed by all of the Project Credit Parties
listed below shall constitute a single binding agreement.
10.12 NO THIRD PARTY BENEFICIARIES. Except for the Bank Lenders,
the 2014 Noteholders, any other First Lien Secured Parties, any Second Lien
Secured Parties, the Disbursement Agent and each Securities Intermediary, the
Project Credit Parties do not intend the benefits of this Agreement to inure to
the benefit of nor shall it be enforceable by any third party (including,
without limitation, the Company or any of its Affiliates) nor shall this
Agreement be construed to make or render any Project Credit Party liable to any
third party (including, without limitation, the Company or any of its
Affiliates) for the performance or failure to perform any obligations
hereunder.
10.13 CO-COLLATERAL AGENTS; SEPARATE COLLATERAL AGENTS. (a) If at
any time or times it shall be necessary or prudent in order to conform to any
law of any jurisdiction in which any of the Shared Collateral shall be located,
or the Collateral Agent shall be advised by counsel, satisfactory to it and to
the Bank Agent, that it is necessary or prudent in the interest of the
Collateral Agent or the Secured Parties to conform to such law, the Collateral
Agent shall execute and deliver all instruments and agreements necessary or
proper to constitute another bank or trust company, or one or more individuals
approved by the Collateral Agent and the Bank Agent, either to act as
co-collateral agent or co-collateral agents jointly with the Collateral Agent
originally named herein or any successor or successors, or to act as a separate
or sub-collateral agent or agents of the Collateral Agent and the Secured
Parties in respect of the Shared Collateral. Any co-collateral agent or
separate or sub-collateral agent appointed to act with respect to the Project
shall meet the requirements for a successor Collateral Agent set forth in
Section 2.9.
(b) Every separate or sub-collateral agent (and all references
herein to a "separate collateral agent" shall be deemed to refer also to a
"sub-collateral agent" or a "collateral sub-agent") and every co-collateral
agent, other than any collateral agent which may be appointed as successor to
any Collateral Agent, shall, to the extent permitted by applicable law, be
appointed and act and be such, subject to the following provisions and
conditions, namely:
(i) all rights, remedies, powers, duties and
obligations conferred upon, reserved to or imposed upon the Collateral
Agent in respect of the custody, control and management of monies,
papers or securities shall be exercised solely by the Collateral Agent
hereunder;
(ii) all rights, remedies, powers, duties and
obligation conferred upon, reserved or imposed upon the Collateral
Agent hereunder shall be conferred, reserved or imposed and exercised
or performed by the Collateral Agent and such separate collateral
agent or separate collateral agents or co-collateral agent or
co-collateral agents, jointly or severally, as shall be provided in
the instrument appointing such separate collateral agent or separate
collateral agents or co-collateral agent or co-collateral agents,
except to the extent that, under any law of any jurisdiction in which
any particular act or acts are to be performed, the Collateral Agent
shall be incompetent or unqualified to perform such act or acts, in
which event such rights, remedies, powers, duties and obligations
shall be exercised and performed by such separate collateral agent or
separate collateral agents or co-collateral agent or co-collateral
agents;
(iii) no power given hereby to, or which it is
provided hereby may be exercised by, any such separate collateral
agent or separate collateral agents or co-collateral agent or
co-collateral agents shall be exercised hereunder by such separate
collateral agent or separate collateral agents or co-collateral agent
or co-collateral agents except (subject to applicable law) jointly
with, or with the consent or at the direction in writing of, the
Collateral Agent;
(iv) all provisions of this Agreement relating to
the Collateral Agent or to releases of Collateral shall apply to any
such separate collateral agent or separate collateral agents or
co-collateral agent or co-collateral agents;
(v) no collateral agent constituted under this
Section 10.13 shall be personally liable by reason of any act or
omission of any other separate or co-collateral agent or the
Collateral Agent hereunder; and
(vi) subject to clause (c) below, the Collateral
Agent at any time by an instrument in writing, executed by it, may (x)
accept the resignation of any such separate collateral agent or
co-collateral agent, (y) remove any such separate collateral agent or
co-collateral agent, and in that case, by an instrument in writing
executed by the Collateral Agent, and (z) appoint a successor to such
separate collateral agent or co-collateral agent.
(c) Notwithstanding any other provision of this Section
10.13, the Collateral Agent shall not appoint any separate collateral agent or
co-collateral agent at the objection of any Project Credit Party.
10.14 AMENDMENTS.
10.14.1 Upon any refinancing of any Class of Secured Obligations,
or the incurring of other Indebtedness of the Company (subject to the rights of
the existing Project Credit Parties under their respective Financing Agreements
with respect to any such refinancing or other Indebtedness), the applicable
lender shall be bound by the terms of this Agreement and such lender, or an
agent or trustee on its behalf, and the Project Credit Parties shall execute
and deliver an amendment to this Agreement to make such Person a Project Credit
Party hereunder. Any such new Project Credit Party shall also execute any other
joinder agreements, amendments or counterparts to any existing credit or
security documents to which each of the existing Project Credit Parties is a
party, as required by such documents or as reasonably requested by the
Collateral Agent.
10.14.2 Except as otherwise set forth in this Section 10.14.2,
no amendment, modification or waiver of any of the provisions of this Agreement
shall be deemed to be made unless the same shall be in a writing signed by each
Project Credit Party who is a party hereto and, if such amendment, modification
or waiver affects the rights or obligations of the Collateral Agent, a writing
signed by the Collateral Agent. Notwithstanding the foregoing, the Bank Agent
shall be entitled to amend or modify this Agreement without the consent of any
other First Lien Secured Party for the purpose of revising or altering the
subordination provisions applicable to any Second Lien Secured Obligations;
provided that no such amendment shall affect the relative rights and
obligations between or among the First Lien Secured Parties unless consented to
by all First Lien Secured Parties (or the applicable Project Credit Parties on
their behalf); and provided, further, that the Bank Agent shall only be
entitled to so amend or modify this Agreement if the outstanding Bank Secured
Obligations shall equal or exceed $100.0 million at such time and immediately
after giving effect to the incurrence of any Second Lien Secured Obligations in
connection with such amendment or modification.
10.15 ADDITIONAL SECURED PARTIES. Upon the entering into of any
Specified Hedge Agreement or other Permitted Additional Senior Secured Debt
Agreement or Permitted Additional Junior Secured Debt Agreement (subject to the
rights of the existing Secured Parties under their respective Facility
Agreements with respect to any such refinancing, replacement or restructuring
of a Class of Secured Obligations or the entering into of such Specified Hedge
Agreement, Permitted Additional Senior Secured Debt Agreement or Permitted
Additional Junior Secured Debt Agreement), a representative of the applicable
lender or hedge counterparty shall execute a joinder to this Agreement in
substantially the form attached as Exhibit A hereto (each, a "JOINDER
AGREEMENT"). Upon the execution and delivery of such a Joinder Agreement by the
representative on behalf of such new lenders or hedge counterparty (and the
execution by such representative of any other joinder agreements, amendments or
counterparts to any existing credit or security documents to which each of the
existing Project Credit Parties is a party, as required by such documents or as
reasonably requested by the Collateral Agent), (a) such new lenders shall
become, as the case may be, a "First Lien Secured Party" or a "Second Lien
Secured Party" hereunder and (b) such representative shall become a "Project
Credit Party" hereunder, with the same force and effect as if it were
originally a party to this Agreement in such capacity. The execution and
delivery of such a Joinder Agreement shall not require the consent of any other
Project Credit Party or Secured Party hereunder so long as such addition does
not otherwise give rise to an express violation of the terms of any Facility
Agreement, and the rights and obligations of each Project Credit Party and
Secured Party hereunder shall remain in full force and effect notwithstanding
the addition of any new Project Credit Party as a party to this Agreement.
10.16 TRUST INDENTURE ACT. The parties do not intend that the
provisions of this Agreement violate the requirements of the Trust Indenture
Act of 1939, as amended.
10.17 REINSTATEMENT. If the payment of any amount applied to any
First Lien Secured Obligations is later avoided, or rescinded (including by
settlement of any claim for avoidance or rescission) or otherwise set aside,
then:
(a) to the fullest extent lawful, all claims for the payment
of such amount as First Lien Secured Obligations and, to
the extent securing such claims, all such Liens under the
First Lien Security Documents will be reinstated and
entitled to the benefits hereof, and
(b) if a Discharge of First Lien Secured Obligations became
effective prior to such reinstatement, all obligations of
the Second Lien Secured Parties that were terminated as a
result of such Discharge of First Lien Secured Obligations
shall be concurrently reinstated to the extent such claims
and Liens under the First Lien Security Documents are
reinstated, beginning on such date but prospectively only
(and not retroactively), as though no First Lien Secured
Obligations or Liens under the First Lien Security
Documents had been outstanding at any time prior to such
date and will remain effective until the claims for such
amount are paid in full in cash.
10.18 ATTORNEYS' FEES. Unless paid by the Company Group, the
prevailing party in any dispute or controversy hereunder shall be entitled to
an award of its reasonable attorneys' fees.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Project Credit Parties hereto have
caused this Agreement to be executed by their respective officers or agents
thereunto duly authorized as of the day and year first above written.
2014 Notes Indenture Trustee:
----------------------------
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Lori Anne Rosenberg
------------------------------
Name: Lori Anne Rosenberg
Title: Vice President
Bank Agent:
----------
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ Alexander B.V. Johnson
-------------------------------
Name: Alexander B.V. Johnson
Title: Managing Director
By: /s/ Brenda Casey
-------------------------------
Name: Brenda Casey
Title: Vice President
Collateral Agent:
----------------
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as collateral agent on behalf of the
Bank Agent, the 2014 Notes
Indenture Trustee and any other
Project Credit Party that from time
to time becomes a party hereto
By: /s/ Alexander B.V. Johnson
--------------------------------
Name: Alexander B.V. Johnson
Title: Managing Director
By: /s/ Brenda Casey
--------------------------------
Name: Brenda Casey
Title: Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS
as collateral agent on behalf of the
Bank Agent
By: /s/ Alexander B.V. Johnson
--------------------------------
Name: Alexander B.V. Johnson
Title: Managing Director
By: /s/ Brenda Casey
--------------------------------
Name: Brenda Casey
Title: Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS
as collateral agent on behalf of
the 2014 Notes Indenture Trustee
By: /s/ Alexander B.V. Johnson
--------------------------------
Name: Alexander B.V. Johnson
Title: Managing Director
By: /s/ Brenda Casey
--------------------------------
Name: Brenda Casey
Title: Vice President
Exhibit 10.5
FIRST SUPPLEMENTAL INDENTURE
WYNN LAS VEGAS, LLC
and
WYNN LAS VEGAS CAPITAL CORP.,
as joint and several obligors
and
DESERT INN WATER COMPANY, LLC
WYNN DESIGN & DEVELOPMENT, LLC
WYNN RESORTS HOLDINGS, LLC
WYNN SHOW PERFORMERS, LLC
WYNN SUNRISE, LLC
LAS VEGAS JET, LLC
WORLD TRAVEL, LLC
PALO, LLC,
and
VALVINO LAMORE, LLC
as Guarantors
and
WYNN RESORTS, LIMITED
as the Parent Guarantor
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee
_____________________
First Supplemental Indenture
Dated as of December 14, 2004
Supplementing the Indenture
Dated as of October 30, 2002
_____________________
12.0% Second Mortgage Notes due 2010
THIS FIRST SUPPLEMENTAL INDENTURE (this "First Supplemental Indenture"),
dated as of December 14, 2004, between Wynn Las Vegas, LLC, a Nevada limited
liability company ("Wynn Las Vegas"), and Wynn Las Vegas Capital Corp., a
Nevada corporation ("Wynn Capital," and together with Wynn Las Vegas, the
"Issuers"), as joint and several obligors, and Desert Inn Water Company, LLC, a
Nevada limited liability company, Wynn Design & Development, LLC, a Nevada
limited liability company, Wynn Resorts Holdings, LLC, a Nevada limited
liability company, Wynn Show Performers, LLC, a Nevada limited liability
company, Wynn Sunrise, LLC, a Nevada limited liability company, Las Vegas Jet,
LLC, a Nevada limited liability company, World Travel, LLC, a Nevada limited
liability company, Palo, LLC, a Delaware limited liability company, and Valvino
Lamore, LLC, a Nevada limited liability company, as guarantors, Wynn Resorts,
Limited, a Nevada corporation, as the parent guarantor, and Wells Fargo Bank,
National Association, as trustee (the "Trustee"), under the Indenture, dated as
of October 30, 2002 (as supplemented to date, the "Indenture"). Capitalized
terms used herein and not otherwise defined shall have the meaning ascribed to
them in the Indenture.
W I T N E S S E T H:
WHEREAS, the Issuers, the Trustee, the Parent Guarantor and the Initial
Guarantors have heretofore executed and delivered the Indenture providing for
the issuance by the Issuers of 12.0% Second Mortgage Notes due 2010 (the
"Notes");
WHEREAS, Wynn Show Performers, LLC and Wynn Sunrise, LLC have each
previously entered into an Assumption Agreement in favor of the Trustee
pursuant to which they agreed to guarantee the Notes;
WHEREAS, as part of a series of transactions to refinance the Issuers'
existing debt and to improve their financial flexibility, Wynn Las Vegas has,
among other things, (i) made an offer to purchase for cash any and all of the
outstanding Notes (the "Tender Offer"), (ii) solicited consents from the
Holders of the Notes to certain proposed amendments to the Indenture and the
Collateral Documents (the "Consent Solicitation"), in each case, in accordance
with the terms and conditions of an Offer to Purchase and Consent Solicitation
Statement, dated November 10, 2004 (the "Solicitation Statement");
WHEREAS, Section 9.02 of the Indenture provides that, with the consent of
the Holders of a majority in principal amount of the Notes then outstanding,
voting as a single class, the Issuers, the Guarantors, the Parent Guarantor and
the Trustee may amend or supplement the Indenture and the Notes;
WHEREAS, the Holders of a majority of the principal amount of the Notes
outstanding have duly consented to the proposed amendments set forth in this
First Supplemental Indenture in accordance with Section 9.02 of the Indenture;
WHEREAS, the Issuers have heretofore delivered or are delivering
contemporaneously herewith to the Trustee (i) copies of resolutions of the
Board of Directors of the Issuers and the Guarantors authorizing the execution
of this First Supplemental Indenture, (ii) evidence of the written consent of
the Holders set forth in the immediately preceding paragraph, and (iii) the
Officers' Certificate and the Opinion of Counsel described in Sections 13.04
and 13.05 of the Indenture; and
WHEREAS, all other acts and proceedings required by law and the Indenture
necessary to authorize the execution and delivery of this First Supplemental
Indenture and to make this First Supplemental Indenture a valid and binding
agreement for the purposes expressed herein, in accordance with its terms, have
been complied with or have been duly done or performed.
NOW, THEREFORE, in consideration of the foregoing and notwithstanding any
provision of the Indenture which, absent this First Supplemental Indenture,
might operate to limit such action, the parties hereto, intending to be legally
bound hereby, agree as follows.
ARTICLE ONE
AMENDMENTS
SECTION 1.01. Amendment of Definitions.
(a) The definition of "Aircraft Assets" contained in Section 1.01
entitled "Definitions" is hereby amended to read as follows:
"Aircraft Assets" means the 1999 Boeing 737-79U Business Jet
aircraft bearing manufacturer's serial number 29441 and United States
Federal Aviation Administration Registration Number N88WZ, together with
engines attached thereto, and any aircraft acquired in exchange therefor
or in replacement thereof.
(b) The definition of "Collateral" contained in Section 1.01 entitled
"Definitions" is hereby amended to insert the following phrase at the end of
the definition: "provided, however, that Collateral shall not include the
Aircraft Assets and Released Collateral."
(c) The definition of "Collateral Documents" contained in Section 1.01
entitled "Definitions" is hereby amended to read as follows:
"Collateral Documents" means:
(1) the Completion Guarantee,
(2) the Deeds of Trust,
(3) the Guarantee and Collateral Agreements,
(4) the Intercreditor Agreement,
(5) the Secured Account Agreement, and
(6) instruments, documents, pledges or filings that create,
evidence, perfect, set forth, consent to, acknowledge or
limit the security interest of the Trustee (or a collateral
agent or other agent acting on behalf of, among others, the
Trustee) in the Collateral,
in each case, as amended, restated, modified or otherwise supplemented from
time to time in accordance with their respective terms and with this Indenture
and the Collateral Documents.
(d) Section 1.01 entitled "Definitions" is hereby amended to add the
following definition:
"First Supplemental Indenture" means that certain First
Supplemental Indenture, dated as of December 14, 2004, by and among the
Issuers, the Guarantors, the Parent Guarantor and the Trustee.
(e) The definition of "Golf Course Land" contained in Section 1.01
entitled "Definitions" is hereby amended to read as follows:
"Golf Course Land" means that portion of the Project Site
designated as the Golf Course Land in the applicable Deeds of Trust,
together with all improvements thereon and all rights appurtenant
thereto.
(f) The definition of "Guarantors" contained in Section 1.01 entitled
"Definitions" is hereby amended to insert the following phrase at the end of
the definition: "provided, further, that Guarantors shall not include the
Released Guarantors."
(g) The definition of "Intercreditor Agreements" contained in Section
1.01 entitled "Definitions" is hereby deleted and replaced with the following:
"Intercreditor Agreement" means the Project Lenders
Intercreditor Agreement
(h) All references to "Intercreditor Agreements" in the Indenture shall
hereby be replaced with the phrase "Intercreditor Agreement."
(i) Section 1.01 entitled "Definitions" is hereby amended to add the
following definition:
"Released Collateral" shall have the meaning set forth in the First
Supplemental Indenture.
(j) Section 1.01 entitled "Definitions" is hereby amended to add the
following definition:
"Released Guarantors" shall have the meaning set forth in the First
Supplemental Indenture.
(k) The definition of "Restricted Entity" contained in Section 1.01
entitled "Definitions" is hereby deleted, and all references to Restricted
Entity or Restricted Entities contained in the Indenture are hereby deleted.
(l) The definition of "Restricted Subsidiary" contained in Section 1.01
entitled "Definitions" is hereby amended to read as follows:
"Restricted Subsidiary" means any Subsidiary of Wynn Las Vegas that
is not an Unrestricted Subsidiary.
(m) The definition of "Secured Account Agreement" contained in Section
1.01 entitled "Definitions" is hereby amended to read as follows:
"Secured Account Agreement" means any account control agreement
among the Issuers, the securities intermediary named therein, and the
Trustee (or a collateral agent or other agent acting on behalf of, among
others, the Trustee), relating to the Secured Account, as such agreement
is amended, modified or otherwise supplemented from time to time in
accordance with its terms, this Indenture and the other Collateral
Documents.
(n) The definition of "Significant Restricted Entity" contained in
Section 1.01 entitled "Definitions" is hereby deleted in its entirety.
(o) The definition of "Significant Restricted Subsidiary" contained in
Section 1.01 entitled "Definitions" is hereby amended to read as follows:
"Significant Restricted Subsidiary" means any Restricted Subsidiary
if such Restricted Subsidiary (a) contributes at least 10% of the total
consolidated income from continuing operations of Wynn Las Vegas and its
Restricted Subsidiaries, before income taxes and extraordinary items, or
(b) owns at least 10% of the total assets of Wynn Las Vegas and its
Restricted Subsidiaries, on a consolidated basis.
(p) Paragraph (1) of the definition of "Subsidiary" contained in Section
1.01 entitled "Definitions" is hereby amended to insert the phrase ", excluding
any trust that owns the Aircraft Assets" after the phrase "(or a combination
thereof)."
(q) Section 1.01 entitled "Definitions" is hereby amended to add the
following definition:
"WLV Transfer Land" means the parcels of land located on the
periphery of the Golf Course Land identified by the following Clark
County assessor's parcel numbers: 162-16-510-023, 162-16-510-026,
162-16-510-027, 162-16-610-020, 162-16-610-023, 162-16-610-024,
162-16-610-025, 162-16-610-026, 162-16-610-027 and 162-16-610-031.
(r) Section 1.01 entitled "Definitions" is hereby amended to add the
following definition:
"Wynn Resorts Holdings Water Permits" means, collectively, the
permits identified as of the date of the First Supplemental Indenture as
Water Permit No. 69513 (Cert. 4765), Water Permit No. 69514 (Cert. 4766),
Water Permit No. 69515 (Cert. 7828), Water Permit No. 69516 (Cert. 7827),
Water Permit No. 68517 (Cert. 7829) and Water Permit No. 69518 (Cert.
7830), in each case as shown in the records of the State of Nevada,
Division of Water Resources, in Carson City, Nevada (and any successor or
replacement thereto).
(s) Notwithstanding the foregoing, the Indenture is hereby amended by
deleting the definitions of (a) any terms that are only used in sections
eliminated as a result of the amendments of the Indenture pursuant to this
First Supplemental Indenture, and (b) the following terms: "Disbursement
Agreement," "Intellectual Property Security Agreement," "Parent Security
Agreement," and "Management Fees Subordination Agreement."
SECTION 1.02. Other Amendments.
(a) The Indenture is hereby amended to delete the text of each of the
following sections in their entirety and to insert in lieu thereof the phrase
"Intentionally Omitted":
(1) Section 4.03 entitled "Reports;"
(2) Section 4.04 entitled "Compliance Certificate;"
(3) Section 4.05 entitled "Taxes;"
(4) Section 4.06 entitled "Stay, Extension and Usury Laws;"
(5) Section 4.07 entitled "Restricted Payments;"
(6) Section 4.08 entitled "Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries of Wynn Las
Vegas;"
(7) Section 4.09 entitled "Incurrence of Indebtedness and
Issuance of Preferred Equity;"
(8) Section 4.10 entitled "Asset Sales;"
(9) Section 4.11 entitled "Transactions With Affiliates;"
(10) Section 4.12 entitled "Liens;"
(11) Section 4.13 entitled "Line of Business;"
(12) Section 4.14 entitled "Corporate and Organizational
Existence;"
(13) Section 4.15 entitled "Offer to Purchase Upon Change of
Control;"
(14) Section 4.16 entitled "Events of Loss;"
(15) Section 4.17 entitled "Designation of Restricted and
Unrestricted Subsidiaries;"
(16) Section 4.18 entitled "Construction;"
(17) Section 4.19 entitled "Limitations on Use of Proceeds;"
(18) Section 4.20 entitled "Limitation on Status as Investment
Company;"
(19) Section 4.21 entitled "Limitation on Sale and Leaseback
Transactions;"
(20) Section 4.22 entitled "Limitation on Development of Phase II
Land;"
(21) Section 4.23 entitled "Limitation on Development of Golf
Course Land;"
(22) Section 4.24 entitled "Restrictions on Payments of Management
Fees;"
(23) Section 4.25 entitled "Advances to Guarantors;"
(24) Section 4.26 entitled "Limitation on Issuances and Sales of
Equity Interests in Wholly Owned Subsidiaries;"
(25) Section 4.27 entitled "Limitation on Issuances of Guarantees
of, or Security Interests to Secure, Indebtedness;"
(26) Section 4.28 entitled "Amendments to Certain Agreements;"
(27) Section 4.29 entitled "Amendments to Limited Liability
Company Agreements and Charter Documents;"
(28) Section 4.30 entitled "Insurance;"
(29) Section 4.33 entitled "Further Assurances;"
(30) Section 4.34 entitled "Nevada PUC Approvals;"
(31) Section 4.35 entitled "Payments for Consents;" and
(32) Section 4.36 entitled "Restrictions on Activities of Wynn
Capital."
Any and all references to the foregoing sections and any and all obligations
thereunder related solely to such sections are hereby deleted throughout the
Indenture and the Collateral Documents, and shall be of no further force or
effect.
(b) Clause (1) of the first paragraph of Section 4.31 of the Indenture
entitled "Additional Collateral; Formation or Acquisition of Restricted
Subsidiaries, Designation of Unrestricted Subsidiaries as Restricted
Subsidiaries or Permitted C-Corp. Conversion" is hereby amended to read as
follows: "(1) the formation or acquisition of any Restricted Subsidiary."
(c) Section 4.31 entitled "Additional Collateral; Formation or
Acquisition of Restricted Subsidiaries, Designation of Unrestricted
Subsidiaries as Restricted Subsidiaries or Permitted C-Corp. Conversion" is
hereby amended to delete paragraphs (2) and (3) of subsection (c) and to delete
subsection (f).
(d) Section 4.32 entitled "Additional Collateral; Acquisition of Assets
or Property" is hereby amended to delete paragraph (2) of subsection (b), and
subsection (c).
(e) The Indenture is hereby amended to delete paragraphs (4), (5), (6)
and (7) of subsection (a) of Section 5.01 entitled "Merger, Consolidation, or
Sale of Assets."
(f) The Indenture is hereby amended to delete subsections (c) through
(p), inclusive, of Section 6.01 entitled "Events of Default."
(g) Section 6.01 entitled "Events of Default" is hereby amended by the
addition of the following subsection, immediately following subsection (b)
thereof:
(c) the Issuers are in default in the performance of or compliance
with any indenture or instrument evidencing Indebtedness that is secured
by Liens on the Collateral, which Liens, pursuant to the Intercreditor
Agreement, are pari passu with the Liens securing the Notes, and, as a
consequence of such default, such Indebtedness has become, or has been
declared, due and payable before its stated maturity;
(h) The first sentence of Section 6.02 entitled "Acceleration" is hereby
amended to read in its entirety as follows: "In the case of an Event of Default
specified in clause (c) of Section 6.01 hereof, all outstanding Notes shall
become due and payable immediately without further action or notice."
(i) Section 6.02 entitled "Acceleration" is hereby amended to delete the
second paragraph thereof in its entirety.
(j) Paragraph (1) of subsection (a) of Section 10.03 entitled "Release of
Collateral" is hereby amended to read in its entirety as follows:
(1) all Collateral that is contributed, sold, leased, conveyed,
transferred, exchanged or otherwise disposed of (a) in a manner not
prohibited by this Indenture, (b) to an Unrestricted Subsidiary of Wynn
Las Vegas in accordance with this Indenture and the Collateral Documents
or (c) as expressly permitted by the Collateral Documents.
(k) Subsection (b) of Section 10.03 entitled "Release of Collateral" is
hereby amended to read in its entirety as follows:
(b) The Trustee shall release (at the sole cost and expense of the
Issuers) the Liens in favor of the Trustee for the benefit of the Holders
on all of the Golf Course Land so long as: (1) the lenders under the
Credit Agreement concurrently release their Liens on the Golf Course
Land, and (2) the Issuers deliver to the Trustee an Officers' Certificate
confirming that fact.
(l) Any and all references in the Indenture to any of the foregoing
sections, subsections, paragraphs, clauses or other terms that are deleted
pursuant to any of the foregoing provisions, and any and all obligations
thereunder related solely to such sections, subsections, paragraphs, clauses
and terms are hereby deleted throughout the Indenture, and shall be of no
further force or effect.
ARTICLE TWO
GUARANTEES AND COLLATERAL
SECTION 2.01. Release of Guarantors from their Note Guarantees. Wynn
Resorts is hereby released from the Parent Guarantee, and Wynn Resorts and each
of the following Persons (collectively, the "Released Guarantors") is hereby
released from its Note Guarantee, and shall have no further obligations under
the Indenture, the Notes or the Collateral Documents:
(a) Desert Inn Water Company;
(b) Palo, LLC;
(c) Valvino Lamore;
(d) Wynn Design; and
(e) Wynn Resorts Holdings.
The Trustee shall execute and deliver any documents reasonably required in
order to evidence the release of the Parent Guarantor from the Parent
Guarantee, and the release of the Released Guarantors from their Note
Guarantees.
SECTION 2.02. Release of Existing Collateral. The Trustee shall release
the Liens and security interests in favor of the Trustee on all of the
following assets (collectively, the "Released Collateral"):
(a) all Capital Stock and related interests in Valvino Lamore
held by Wynn Resorts;
(b) all Capital Stock and related interests in Wynn Design held
by Valvino Lamore;
(c) all Capital Stock and related interests in Desert Inn Water
Company held by Valvino Lamore;
(d) all Capital Stock and related interests in Desert Inn
Improvement Co. held by Desert Inn Water Company;
(e) all Capital Stock and related interests in Wynn Resorts
Holdings held by Valvino Lamore;
(f) all Capital Stock and related interests in Palo, LLC, held by
Wynn Resorts Holdings;
(g) all assets of the Released Guarantors (other than (i) Wynn
Resorts Holdings' Capital Stock and related interests in Wynn
Las Vegas and (ii) the Conveyance Real Property); and
(h) all interests and rights of Wynn Las Vegas in the Project
Lease and Easement Agreements.
SECTION 2.03. Real Estate Collateral; Water Permits.
(a) In order to facilitate transfers among Wynn Resorts and its
Subsidiaries of (i) the Wynn Resorts Holdings Water Permits, (ii) the real
property held by Wynn Resorts Holdings and Palo, LLC, and (iii) the WLV
Transfer Land (collectively, "Conveyance Real Property"), the Trustee shall, at
the request of the Issuers execute and deliver any and all documents necessary
or desirable to evidence the Trustee's consent to the conveyance, either
directly or through a series of transfers, of the Conveyance Real Property to
Wynn Las Vegas or one of the Guarantors subject to the existing Liens in favor
of the Trustee.
(b) At the request of the Issuers, the Trustee shall execute and deliver
any and all documents, and shall take all action, necessary or desirable to
effect the transfer, subject to any required approval of the State of Nevada,
Division of Water Resources, of certain water rights covered by or relating to
certain Wynn Resorts Holdings Water Permits so that they are covered by or
relate to other Wynn Resorts Holdings Water Permits.
SECTION 2.04. Amendment to Collateral Documents.
(a) From time to time at the request of the Issuers, the Trustee shall
execute and deliver any and all documents, and shall take all action, necessary
or desirable in order to evidence (i) the pledge as Collateral of all Capital
Stock and related interests of Wynn Las Vegas held by Wynn Resorts Holdings,
(ii) the release of the Parent Guarantor of its obligations under the Parent
Guarantee, (iii) each of the other Released Guarantors of its obligations under
its Note Guarantee, and (iv) the release of the Trustee's Liens on the Released
Collateral, including without limitation, the return of Released Collateral in
the Trustee's possession, and the execution and delivery of related instruments
of transfer, lien, releases, reconveyances, termination statements and any
similar documents and instruments.
(b) At the request of the Issuers, the Trustee shall, on or after the
Operative Date, execute and deliver to the Issuers the following documents:
(i) an amended and restated Guarantee and Collateral Agreement,
with terms substantially consistent with the terms of the Consent
Solicitation;
(ii) an amended and restated Project Lenders Intercreditor
Agreement, with terms substantially consistent with the terms of the
Consent Solicitation;
(iii) an Omnibus Termination of Agreements, with terms
substantially consistent with the terms of the Consent Solicitation;
(iv) amended and restated Deeds of Trust, with terms substantially
consistent with the Consent Solicitation; and
(v) an amended and restated Completion Guarantee, with terms
substantially consistent with the Consent Solicitation.
(c) The Issuers may, at their option, on or after the Operative Date,
cause to be executed and delivered any or all of the following documents:
(i) amended and restated control agreements, with terms
substantially consistent with the Consent Solicitation;
(ii) an amended and restated Secured Account Agreement, with terms
substantially consistent with the Consent Solicitation; and
(iii) amended and restated collateral account agreements, with
terms substantially consistent with the Consent Solicitation.
(d) From time to time, at the request of the Issuers, the Trustee shall
execute and deliver new intercreditor agreements, so long as their terms are
not materially less favorable to the holders of the Notes than the terms of the
amended and restated Project Lenders Intercreditor Agreement described in the
Solicitation Statement.
(e) Upon the request of the Issuers or any of the Guarantors or the
Parent Guarantor, the Trustee shall execute and deliver such additional
instruments, certificates or documents, and take all such actions as may be
reasonably required from time to time in order to carry out more effectively
the purposes of the Consent Solicitation.
ARTICLE THREE
WAIVER
SECTION 3.01. Waiver. Effective as of the date hereof, any and all
existing Defaults or Events of Default and their consequences under the
Indenture are waived (except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, or interest on, the Notes).
ARTICLE FOUR
EFFECTIVENESS OF FIRST SUPPLEMENTAL INDENTURE
SECTION 4.01. Effectiveness of First Supplemental Indenture. This First
Supplemental Indenture shall become effective when, and only when, all of the
following conditions shall have been satisfied:
(a) the Issuers shall have received the written consent of the
Holders of at least a majority in aggregate principal amount of the Notes
at the time outstanding to effect the amendments to the Indenture set
forth herein; and
(b) duly executed counterparts hereof shall have been executed and
delivered by the Issuers, the Parent Guarantor, the Guarantors and the
Trustee.
SECTION 4.02. Operativeness of Amendments. Notwithstanding Section 4.01
hereof, the amendments to the Indenture, the release of Note Guarantees and the
release of Collateral set forth in this First Supplemental Indenture shall
become operative on the earliest date (the "Operative Date") when all of the
following additional conditions shall have been satisfied:
(a) the Issuers shall have accepted the Notes validly tendered in
connection with the written consents referred to in Section 4.01(a) as of
the Consent Date (as defined in the Solicitation Statement); and
(b) the Financing Condition (as defined in the Solicitation
Statement) shall have been satisfied.
ARTICLE FIVE
MISCELLANEOUS
SECTION 5.01. Reference to and Effect on the Indenture. On and after the
Operative Date, each reference in the Indenture to "this Indenture,"
"hereunder," "hereof," or "herein" shall mean and be a reference to the
Indenture as supplemented by this First Supplemental Indenture unless the
context otherwise requires. The Indenture, as supplemented by this First
Supplemental Indenture, shall be read, taken and construed as one and the same
instrument. Except as specifically amended above, the Indenture shall remain in
full force and effect and is hereby ratified and confirmed.
SECTION 5.02. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK,
INCLUDING WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW, SHALL GOVERN AND BE USED TO CONSTRUE THIS FIRST SUPPLEMENTAL
INDENTURE, SUBJECT TO APPLICABLE GAMING LAWS.
SECTION 5.03. Trust Indenture Act Controls. No modification of any
provisions of the Indenture effected by this First Supplemental Indenture is
intended to eliminate or limit any provision of the Indenture that is required
to be included therein by the Trust Indenture Act of 1939, as amended, as in
force as of the effectiveness of this First Supplemental Indenture.
SECTION 5.04. Trustee Disclaimer; Trust. The recitals contained in this
First Supplemental Indenture shall be taken as the statements of the Issuers
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this First
Supplemental Indenture. The Trustee accepts the trust created by the Indenture,
as supplemented by this First Supplemental Indenture, and agrees to perform the
same upon the terms and conditions of the Indenture, as supplemented hereby.
SECTION 5.05. Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts, each of which shall be an original; but
such counterparts shall constitute but one and the same instrument.
SECTION 5.06. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
SECTION 5.07. Severability. In case any provision of this First
Supplemental Indenture shall be invalid, illegal or unenforceable, including
any amendment or waiver that, pursuant to Section 9.02 of the Indenture,
requires the consent of each Holder affected, the validity, legality and
enforceability of the remaining provisions shall not in any way be effected or
impaired thereby.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed all as of the date hereof.
ISSUERS:
WYNN LAS VEGAS, LLC,
a Nevada limited liability company,
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/ Ronald J. Kramer
-------------------------------
Name: Ronald J. Kramer
Title: President
WYNN LAS VEGAS CAPITAL CORP.,
a Nevada corporation,
By: /s/ Ronald J. Kramer
-------------------------------
Name: Ronald J. Kramer
Title: President
GUARANTORS:
DESERT INN WATER COMPANY, LLC,
a Nevada limited liability company,
By: Valvino Lamore, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited,
a Nevada corporation, its sole member
By: /s/ Ronald J. Kramer
-------------------------------
Name: Ronald J. Kramer
Title: President
WYNN DESIGN & DEVELOPMENT, LLC,
a Nevada limited liability company,
By: Valvino Lamore, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited,
a Nevada corporation, its sole member
By: /s/ Ronald J. Kramer
-------------------------------
Name: Ronald J. Kramer
Title: President
WYNN RESORTS HOLDINGS, LLC,
a Nevada limited liability company,
By: Valvino Lamore, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited,
a Nevada corporation, its sole member
By: /s/ Ronald J. Kramer
-------------------------------
Name: Ronald J. Kramer
Title: President
WYNN SHOW PERFORMERS, LLC,
a Nevada limited liability company,
By: Wynn Las Vegas, LLC,
a Nevada limited liability company,
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/ Ronald J. Kramer
-------------------------------
Name: Ronald J. Kramer
Title: President
WYNN SUNRISE, LLC,
a Nevada limited liability company,
By: Wynn Las Vegas, LLC,
a Nevada limited liability company,
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/ Ronald J. Kramer
-------------------------------
Name: Ronald J. Kramer
Title: President
LAS VEGAS JET, LLC,
a Nevada limited liability company,
By: Wynn Las Vegas, LLC,
a Nevada limited liability company,
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/ Ronald J. Kramer
-------------------------------------
Name: Ronald J. Kramer
Title: President
WORLD TRAVEL, LLC,
a Nevada limited liability company,
By: Wynn Las Vegas, LLC,
a Nevada limited liability company,
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/ Ronald J. Kramer
-------------------------------------
Name: Ronald J. Kramer
Title: President
PALO, LLC,
a Delaware limited liability company,
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/ Ronald J. Kramer
-------------------------------------
Name: Ronald J. Kramer
Title: President
VALVINO LAMORE, LLC,
a Nevada limited liability company,
By: Wynn Resorts, Limited, a Nevada corporation,
its sole member
By: /s/ Ronald J. Kramer
-------------------------------------
Name: Ronald J. Kramer
Title: President
PARENT GUARANTOR:
WYNN RESORTS, LIMITED,
a Nevada corporation
By: /s/ Ronald J. Kramer
--------------------------------------
Name: Ronald J. Kramer
Title: President
WELLS FARGO BANK, NATIONAL ASSOCIATION
By: Jane Y. Schweiger
--------------------------------
Name: Jane Y. Schweiger
Title: Vice President
Exhibit 99.1
Wynn Resorts, Limited Announces Completion of Refinancing
LAS VEGAS, Dec 14, 2004 (BUSINESS WIRE) -- Wynn Resorts, Limited (Nasdaq: WYNN)
today announced the completion of the refinancing of the indebtedness of its
subsidiary, Wynn Las Vegas, LLC. Stephen A. Wynn, Chairman and CEO of Wynn
Resorts commented: "In over 30 years of experience in Las Vegas and the
financial markets, today's financial developments for our company mark a most
significant moment. As a result of our recent equity and debt financings, Wynn
Resorts has now reached a new plateau of financial stability. It has been our
strategic goal to have each of our subsidiaries stand on its own, each of them
with appropriate equity and debt levels, at favorable rates. To our grand
delight, we have reached that goal today, years ahead of schedule. We offer our
gratitude and congratulations to our banks, bondholders and shareholders for
the achievement of this advanced degree of financial maturity. The Company's
financial structure is something to behold."
Wynn Las Vegas, LLC and its subsidiary, Wynn Las Vegas Capital Corp., completed
the sale of $1.3 billion aggregate principal amount of 6-5/8% first mortgage
notes due 2014. In addition, Wynn Las Vegas, LLC obtained $1 billion of new
senior secured credit facilities, comprised of a $600.0 million revolving
credit facility and a $400.0 million term loan facility. A portion of the
proceeds from the first mortgage notes, together with other funds available to
Wynn Las Vegas, LLC, including a $400 million capital contribution from Wynn
Resorts, Limited, was used to discharge approximately $919.9 million of
existing indebtedness.
Wynn Las Vegas, LLC intends to use the remaining proceeds from the sale of the
notes, available cash on hand, and borrowings under the new credit facilities
to pay costs associated with completion of its Wynn Las Vegas hotel and casino
resort, and to pay a portion of the costs to develop Encore at Wynn Las Vegas,
the recently announced expansion of Wynn Las Vegas.
The first mortgage notes and the new credit facilities are both guaranteed by
Wynn Las Vegas, LLC's subsidiaries, and are both secured by a first priority
lien on substantially all of the existing and future assets of the issuers and
guarantors. The holders of the notes will be entitled to certain registration
rights and will able to require the issuers to repurchase the notes upon the
occurrence of a change of control. The issuers will be entitled to redeem the
notes under certain circumstances.
The first mortgage notes have not been registered under the Securities Act of
1933, as amended or any state securities laws and unless so registered may not
be offered or sold in the United States except pursuant to an exemption from,
or in a transaction not subject to, the registration requirements of the
Securities Act of 1933, as amended and applicable state securities laws. This
announcement does not constitute an offer to sell or the solicitation of offers
to buy any security and shall not constitute an offer, solicitation or sale of
any security in any jurisdiction in which such offer, solicitation or sale
would be unlawful.
This press release contains "forward-looking statements" within the meaning of
the federal securities laws. The forward-looking statements in this press
release involve risks and uncertainties which could cause actual results to
differ from those expressed in or implied by the statements herein. Additional
information concerning potential factors that could affect the company's future
results is included under the caption "Risk Factors" in Item 1 of Wynn Resorts'
annual report on Form 10-K for the year ended December 31, 2003.
SOURCE: Wynn Resorts, Limited
CONTACT:
Wynn Resorts, Limited
Samanta Stewart, 702-770-7555
investorrelations@wynnresorts.com