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Exhibit 4.12
WARRANT CERTIFICATE FACE
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY,
MAY NOT BE OFFERED, SOLD OR 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 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 AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) or (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON, IS NOT
ACQUIRING THIS SECURITY FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON, AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATIONS UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE
TIME PERIOD REFERRED TO IN 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 WITH RESPECT TO SUCH TRANSFER, ON THE DATE OF THE TRANSFER OF THIS
SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE RESORT AT
SUMMERLIN, LIMITED PARTNERSHIP (THE "ISSUER") OR ANY SUBSIDIARY THEREOF, (B)
INSIDE THE UNITED STATES TO A QIB IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRANSFER AGENT A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE WARRANT AGENT), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE, BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER), (F)
PURSUANT TO AN EFFECTIVE REGISTRATION
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STATEMENT UNDER THE SECURITIES ACT OR (G) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (BASED UPON AN OPINION
OF COUNSEL ACCEPTABLE TO THE ISSUER) AND IN EACH CASE, IN ACCORDANCE WITH
APPLICABLE SECURITIES LAWS AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. 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 WARRANT AGREEMENT CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
SECURITY IN VIOLATION OF THE FOREGOING RESTRICTIONS.
THIS WARRANT AND THE LIMITED PARTNER INTERESTS OF THE PARTNERSHIP INTO
WHICH THIS WARRANT IS EXERCISABLE ARE SUBJECT TO A REGISTRATION RIGHTS AND
LIMITED PARTNERS AGREEMENT, DATED AS OF DECEMBER 30, 1997, WHICH CONTAINS
PROVISIONS REGARDING THE RESTRICTIONS ON THE TRANSFER AND PROVISIONS REQUIRING
THE MANDATORY TRANSFER OF SUCH PARTNERSHIP INTERESTS AND OTHER MATTERS. A COPY
OF SUCH AGREEMENT IS AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE
PARTNERSHIP.
COMMENCING WITH THE DATE A NONRESTRICTED GAMING LICENSE IS ISSUED TO
THE PARTNERSHIP BY THE NEVADA GAMING COMMISSION AND THEREAFTER UNTIL THE
PARTNERSHIP HAS BEEN REGISTERED AS A REGISTERED COMPANY AND GRANTED THE
EXEMPTIONS BY THE NEVADA GAMING COMMISSION, THE SALE, ASSIGNMENT, TRANSFER,
PLEDGE, OR OTHER DISPOSITION OF ANY INTEREST IN THE PARTNERSHIP IS VOID UNLESS
APPROVED IN ADVANCE BY THE NEVADA GAMING COMMISSION. IF AT ANY TIME THE NEVADA
GAMING COMMISSION FINDS THAT AN INDIVIDUAL OWNER OR ANY SUCH INTEREST IS
UNSUITABLE TO HOLD THAT INTEREST, THE NEVADA GAMING COMMISSION SHALL IMMEDIATELY
NOTIFY THE LIMITED PARTNERSHIP OF THAT FACT. THE PARTNERSHIP SHALL, WITHIN TEN
DAYS FROM THE DATE THAT IT RECEIVES THE NOTICE FROM THE NEVADA GAMING
COMMISSION, RETURN TO THE UNSUITABLE OWNER THE AMOUNT OF HIS CAPITAL ACCOUNT AS
REFLECTED ON THE BOOKS OF THE PARTNERSHIP
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BEGINNING ON THE DATE WHEN THE NEVADA GAMING COMMISSION SERVES NOTICE OF A
DETERMINATION OF UNSUITABILITY, PURSUANT TO THE PRECEDING SENTENCE, UPON THE
PARTNERSHIP, IT IS UNLAWFUL FOR THE UNSUITABLE OWNER: (A) TO RECEIVE ANY SHARE
OF THE PROFITS OR DISTRIBUTIONS OF ANY CASH OR OTHER PROPERTY OTHER THAN A
RETURN OF CAPITAL AS REQUIRED ABOVE; (B) TO EXERCISE, DIRECTLY OR THROUGH ANY
TRUSTEE OR NOMINEE, ANY VOTING RIGHT CONFERRED BY SUCH INTEREST; OR (C) TO
RECEIVE ANY REMUNERATION IN ANY FORM FROM THE PARTNERSHIP, FOR SERVICES RENDERED
OR OTHERWISE.
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EXERCISABLE ON OR AFTER THE DATE OF ISSUANCE
AND ON OR BEFORE DECEMBER 15, 2007
_______ Warrants
No. 1
Warrant
CUSIP No.:
Warrant Certificate
The Resort at Summerlin, Limited Partnership
This Warrant Certificate certifies that ___________________
___________________ or registered assigns, is the registered holder of
______________ Warrants expiring December 15, 2007 (the "Warrant") to purchase
limited partner interests ("LP Partnership Interest") in The Resort at
Summerlin, Limited Partnership, a Nevada limited partnership (the
"Partnership"). Each Warrant initially entitles the holder upon exercise to
receive from the Partnership on or after the date hereof and on or before 5:00
p.m. New York City Time on December 15, 2007, one LP Partnership Interest at the
initial exercise price (the "Exercise Price") of $0.01 payable in lawful money
of the United States of America upon surrender of this Warrant Certificate and
payment of the Exercise Price at the office or agency of the Warrant Agent, but
only subject to the conditions set forth herein and in the Warrant Agreement
referred to herein. The Exercise Price and the number of LP Partnership
Interests issuable upon exercise of each Warrant are subject to adjustment upon
the occurrence of certain events set forth in the Warrant Agreement.
No Warrant may not be exercised after 5:00 p.m., New York City
Time, on December 15, 2007, and to the extent not exercised by such time the
Warrant shall become void.
This Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent, as such term is used in the Warrant
Agreement.
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This Warrant Certificate shall be governed and construed in
accordance with the internal laws of the State of New York.
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Warrants expiring December 15, 2007, entitling the
holders on exercise of each Warrant initially to receive one LP Partnership
Interest, and is issued or to be issued pursuant to a Warrant Agreement dated as
of December 30, 1997 (the "Warrant Agreement"), duly executed and delivered by
the Partnership and United States Trust Company of New York, a banking
corporation organized and existing under the laws of the State of New York, as
warrant agent (the "Warrant Agent"). The Warrant Agreement is hereby
incorporated by reference in and made a part of this Warrant Certificate and is
hereby referred to for a description of the rights, limitation of rights,
obligations, duties and immunities thereunder of the Warrant Agent, the
Partnership and the holders (the words "holders" or "holder" meaning the
registered holders or registered holder) of the Warrants. A copy of the Warrant
Agreement may be obtained by the holder hereof upon written request to the
Partnership.
The Warrants may be exercised at any time on or after the date
hereof and on or before December 15, 2007, subject to extension as provided in
the Warrant Agreement. The holder of the Warrants evidenced by this Warrant
Certificate may exercise any such Warrant by surrendering this Warrant
Certificate, with the form of election to purchase set forth hereon properly
completed and executed, together with payment of the Exercise Price only in
full, and not in part. No adjustment shall be made for any distributions on the
LP Partnership Interests issuable upon exercise of this Warrant.
The Warrant Agreement provides that upon the any occurrence of
certain events the LP Partnership Interest issuable upon exercise of the Warrant
may, subject to certain conditions, be adjusted. No fractional LP Partnership
Interests will be issued upon the exercise of Warrants, but the Partnership will
pay the cash value thereof determined as provided in the Warrant Agreement.
This Warrant Certificate, when surrendered at the office of
the Warrant Agent by the registered holder thereof in person or by legal
representative or attorney duly authorized in writing, may be exchanged, in the
manner and subject to the limitations provided in the Warrant Agreement, but
without payment of any service charge, for another Warrant Certificate or
Warrant Certificates of like tenor evidencing in the aggregate Warrants to
purchase to purchase the aggregate number of LP Partnership Interests to which
the surrendered Warrant was entitled.
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Upon due presentation for registration of transfer of this
Warrant Certificate at the office of the Warrant Agent a new Warrant Certificate
or Warrant Certificates of like tenor and representing in the aggregate the
right to purchase a like amount of LP Partnership Interests shall be issued to
the transferee(s) in exchange for this Warrant Certificate, subject to the
limitations provided in the Warrant Agreement, without charge except for any tax
or other governmental charge imposed in connection therewith.
The Partnership and the Warrant Agent may deem and treat the
registered holder(s) thereof as the absolute owner(s) of this Warrant
Certificate (notwithstanding any notation of ownership or other writing hereon
made by anyone), for the purpose of any exercise hereof, of any distribution to
the holder(s) hereof, and for all other purposes, and neither the Partnership
nor the Warrant Agent shall be affected by any notice to the contrary. Neither
the Warrants nor this Warrant Certificate entitles any holder hereof to any
rights of a limited partner of the Partnership.
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IN WITNESS WHEREOF, The Resort at Summerlin, Limited
Partnership has caused this Warrant Certificate to be signed by its general
partner, The Resort at Summerlin, Inc., by its President and by its Vice
President.
Dated: ___________, 1997
THE RESORT AT SUMMERLIN,
LIMITED PARTNERSHIP
BY: THE RESORT AT SUMMERLIN,
INC., General Partner
By:
-----------------------
Name:
Title:
By: /s/
------------------------
Name:
Title:
Countersigned:
United States Trust Company of New York,
as Warrant Agent
By:
----------------------
Authorized Signature
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Election to Purchase
(To be Executed upon Exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the
right, represented by this Warrant Certificate, to receive _________ limited
partner interests in, and herewith tenders payment for such partnership interest
to the order of, The Resort at Summerlin, Limited Partnership in the amount of
$___________ in accordance with the terms hereof. The undersigned requests that
a certificate for such partnership interest be registered in the name of
____________, whose address is _________________________ and that evidence of
such partnership interest be delivered to ___________________________________,
whose address is ______________________________________.
Signature:
Date:
Signature Guarantee:
___________________________________
(Signatures must be guarantee by an
"eligible guarantor institution"
meeting the requirements of the
Registrar, which requirements will
include membership or partnership
in the Securities Transfer Agents
Medallion Program ("STAMP") or such
other "signature guarantee program"
as may be determined by the
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.)
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