Exhibit 10.3
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CREDIT AGREEMENT
among
BORA BORA, LLC,
as the Borrower,
The Several Lenders
from Time to Time Parties Hereto,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent,
Dated as of May 3, 2004
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TABLE OF CONTENTS
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Page
SECTION 1. DEFINITIONS............................................................................................2
1.1 Defined Terms...................................................................................2
1.2 Other Definitional Provisions..................................................................21
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.......................................................................22
2.1 Availability...................................................................................22
2.2 Procedure for Borrowing........................................................................22
2.3 Repayment of Loans; Evidence of Indebtedness...................................................23
2.4 Fees, etc......................................................................................24
2.5 Optional Prepayments...........................................................................24
2.6 Mandatory Prepayments..........................................................................25
2.7 Conversion and Continuation Option.............................................................25
2.8 Minimum Amounts and Maximum Number of Eurodollar Tranches......................................26
2.9 Interest Rates and Payment Dates...............................................................26
2.10 Computation of Interest and Fees...............................................................26
2.11 Inability to Determine Interest Rate...........................................................27
2.12 Pro Rata Treatment and Payments................................................................27
2.13 Requirements of Law............................................................................28
2.14 Taxes..........................................................................................30
2.15 Indemnity......................................................................................32
2.16 Illegality.....................................................................................33
2.17 Change of Lending Office.......................................................................33
2.18 Accounts.......................................................................................33
SECTION 3. REPRESENTATIONS AND WARRANTIES........................................................................34
3.1 LLC Existence; Compliance with Law.............................................................35
3.2 LLC Power; Authorization; Enforceable Obligations..............................................35
3.3 No Legal Bar...................................................................................35
3.4 No Material Litigation.........................................................................35
3.5 No Default.....................................................................................36
3.6 Ownership of Property; Liens...................................................................36
3.7 Taxes..........................................................................................36
3.8 Federal Regulations............................................................................36
3.9 ERISA..........................................................................................36
3.10 Investment Company Act; Other Regulations......................................................37
3.11 Use of Proceeds................................................................................37
3.12 Environmental Matters..........................................................................37
3.13 Accuracy of Information, etc...................................................................38
3.14 Security Documents.............................................................................39
3.15 Regulation H...................................................................................39
3.16 Insurance......................................................................................39
3.17 Phase II Land..................................................................................40
SECTION 4. CONDITIONS PRECEDENT THE CLOSING DATE AND ADVANCES....................................................40
4.1 Conditions Precedent to the Closing Date.......................................................40
4.2 No Waiver or Estoppel..........................................................................44
SECTION 5. AFFIRMATIVE COVENANTS.................................................................................44
5.1 Certificates; Other Information................................................................44
5.2 Payment of Obligations.........................................................................45
5.3 Conduct of Business and Maintenance of Existence, etc..........................................45
5.4 Maintenance of Property; Leases; Insurance; Taxes..............................................45
5.5 Inspection of Property; Books and Records; Discussions.........................................46
5.6 Notices........................................................................................47
5.7 Environmental Laws; Permits....................................................................47
5.8 Use of Proceeds................................................................................49
5.9 Compliance with Laws, Material Contracts, Permits..............................................49
5.10 Further Assurances.............................................................................50
SECTION 6. NEGATIVE COVENANTS....................................................................................50
6.1 Limitation on Indebtedness.....................................................................51
6.2 Limitation on Liens............................................................................51
6.3 Limitation on Fundamental Changes..............................................................52
6.4 Limitation on Disposition of Property..........................................................52
6.5 Limitation on Optional Payments and Modifications of Governing Documents.......................53
6.6 Limitation on Transactions with Affiliates.....................................................53
6.7 Limitation on Zoning and Contract Changes and Compliance.......................................54
6.8 No Joint Assessment; Separate Lots.............................................................54
6.9 Final Plans....................................................................................54
6.10 Limitation on Negative Pledge Clauses..........................................................54
6.11 Restrictions on Changes to Permits and Material Contracts......................................54
6.12 Limitations on Restricted Payments.............................................................55
SECTION 7. EVENTS OF DEFAULT.....................................................................................56
SECTION 8. THE ADMINISTRATIVE AGENT..............................................................................60
8.1 Appointment....................................................................................60
8.2 Delegation of Duties...........................................................................60
8.3 Exculpatory Provisions.........................................................................60
8.4 Reliance by Administrative Agent...............................................................60
8.5 Notice of Default..............................................................................61
8.6 Non-Reliance on Administrative Agent, Arranger and Other Lenders...............................61
8.7 Indemnification................................................................................62
8.8 The Arranger and the Administrative Agent in Their Individual Capacities.......................62
8.9 Successor Agents...............................................................................62
8.10 Authorization to Release Liens.................................................................63
8.11 The Arranger...................................................................................63
8.12 Withholdings...................................................................................63
SECTION 9. MISCELLANEOUS.........................................................................................64
9.1 Amendments and Waivers.........................................................................64
9.2 Notices........................................................................................65
9.3 No Waiver; Cumulative Remedies.................................................................66
9.4 Survival of Representations and Warranties.....................................................66
9.5 Payment of Expenses; Indemnification...........................................................66
9.6 Successors and Assigns; Participations and Assignments.........................................67
9.7 Adjustments; Set-off...........................................................................70
9.8 Counterparts...................................................................................70
9.9 Severability...................................................................................70
9.10 Integration....................................................................................70
9.11 GOVERNING LAW..................................................................................71
9.12 Submission To Jurisdiction; Waivers............................................................71
9.13 Acknowledgments................................................................................71
9.14 Confidentiality................................................................................72
9.15 Release of Collateral..........................................................................72
9.16 Construction...................................................................................73
9.17 WAIVERS OF JURY TRIAL..........................................................................73
9.18 Gaming Authorities.............................................................................73
9.19 Removal Upon a Disqualification Event..........................................................73
SCHEDULES:
1 Commitments
5.4(c) Insurance Requirements
EXHIBITS:
A Form of Borrower's Closing Certificate
B-1 Form of Collateral Account Agreement
B-2 Form of Deed of Trust
B-3 Form of Indemnity Agreement
C-1 Description of Phase II Land
C-2 Description of Phase II Additions
D Form of Assignment and Acceptance
E-1 Form of Notice of Borrowing
E-2 Form of Interest Reserve Disbursement Certificate
F Form of Note
G Form of Exemption Certificate
H Opinions
I Permitted Encumbrances
This CREDIT AGREEMENT is dated as of May 3, 2004 and entered into
among BORA BORA, LLC, a Nevada limited liability company (the "Borrower"), the
several banks and other financial institutions or entities from time to time
parties to this Agreement (the "Lenders"), and DEUTSCHE BANK TRUST COMPANY
AMERICAS, as administrative agent (in such capacity, the "Administrative
Agent").
RECITALS
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WHEREAS, the Borrower owns the Phase II Land and proposes to
improve the Phase II Land with the Phase II Additions (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 to make a distribution through its
parent company, Bora, LLC, a Nevada limited liability company ("Bora"), to its
ultimate parent corporation, Wynn Resorts, Limited, a Nevada corporation
("WRL"), in the amount of $82,624,692 which will be used to make an equity
contribution to its Affiliate, Wynn Las Vegas, LLC, a Nevada limited liability
company ("WLV") (the "Equity Contribution");
WHEREAS, the Borrower desires that the Lenders extend the senior
secured credit facilities contemplated hereby to the Borrower to provide the
funds necessary to make the Phase II Additions and the Equity Contribution;
WHEREAS, subject to the terms and conditions hereof, the Lenders
are willing to extend such senior secured credit facilities to the Borrower;
WHEREAS, $17,827,965 of the proceeds of the Loans will be
deposited contemporaneously with the execution of this Agreement into the
Interest Reserve Account and will be periodically disbursed by the
Administrative Agent to pay interest due and owing under this Agreement.
$82,624,692 of the proceeds of the Loans comprising the Equity Contribution
will be distributed contemporaneously with the execution of this Agreement to
Bora, and Bora will distribute such proceeds to WRL. WRL will subsequently
contribute such proceeds to WLV, which will cause such proceeds to be
deposited into the "Company's Funds Account" as defined under, and to be
applied in accordance with, the Disbursement Agreement (as defined in the Wynn
Las Vegas Credit Agreement referred to herein). The remaining proceeds of the
Loans will be deposited contemporaneously with the execution of this Agreement
into the Phase II Proceeds Account and will be disbursed on the Closing Date
to pay closing costs and expenses and thereafter periodically disbursed by the
Borrower in order to pay costs and expenses incurred in connection with the
Phase II Additions (including reimbursement to WRL for costs and expenses
previously incurred relating to the Phase II Additions and properly documented
to the reasonable satisfaction of the Administrative Agent). The Interest
Reserve Account and the Phase II Proceeds Account are owned beneficially by
the Borrower, subject to the terms and conditions of this Agreement and the
Collateral Account Agreement. The Company's Funds Account is owned
beneficially by WLV, subject to the terms and conditions of the Wynn Las Vegas
Credit Agreement and certain other financing documents executed by WLV.
WHEREAS, the Borrower desires to secure all of its Obligations by
granting to the Administrative Agent on behalf of the Lenders Liens on the
Accounts and the Phase II Land and all improvements and personal property
located thereon, 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.
"Accounts": the Interest Reserve Account and the Phase II Proceeds
Account.
"Administrative Agent": as defined in the preamble hereto.
"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 Lease and Easement Agreements": collectively, the
following agreements:
(a) that certain Parking Facility Lease, dated as of May 3,
2004, between the Borrower, as lessor, and WLV, as lessee, with respect
to the lease of a portion of the Phase II Land upon which the parking lot
structure for use by WLV employees is located;
(b) that certain Driving Range Lease, dated as of May 3, 2004,
between the Borrower, as lessor, and WLV, as lessee, with respect to the
lease of a portion of the Phase II Land upon which the driving range for
WLV's golf course is located;
(c) that certain Office Building Agreement, dated as of May 3,
2004, between the Borrower, as lessor, and WLV, as lessee, with respect
to the lease of space in the office building existing on the date hereof
on the Phase II Land;
(d) that certain Art Gallery Lease, dated as of May 3, 2004,
between the Borrower, as lessor, and WLV, as lessee, with respect to the
lease of space for the art gallery existing on the date hereof on the
Phase II Land; and
(e) that certain Easement Agreement, dated as of October 21,
2002, among Wynn Resorts Holdings, LLC, Valvino Lamore, LLC and WLV, as
amended by that certain Amendment to Easement Agreement dated as of May
3, 2004;
in each case, as amended, modified or otherwise supplemented from time
to time in accordance with Section 6.11(b) hereof.
"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.
"Aggregate Exposure": with respect to any Lender at any time, an
amount equal to the amount of such Lender's Commitment then in effect or,
if the Closing Date has occurred and the Commitments have expired, the
amount of such Lender's 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, as amended, supplemented,
replaced or otherwise modified from time to time in accordance with this
Credit Agreement.
"Applicable Lenders": Non-Defaulting Lenders holding more than
33?% of the Total Extensions of Credit of Non-Defaulting Lenders
outstanding under this Agreement.
"Applicable Margin": shall be 5.50% per annum for Eurodollar Loans
and 4.50% per annum for Base Rate Loans.
"Appraisal": as defined in Section 4.1(r).
"Arranger": Deutsche Bank Trust Company Americas, in its capacity
as arranger.
"Asset Sale": any Disposition of Property or series of related
Dispositions of Property other than (i) the granting of any Lien
permitted by Section 6.2, (ii) any Disposition permitted by subsections
(a), (b), (c), (d), (e) or (f) of Section 6.4 (provided, that in the case
of Section 6.4(a), Dispositions of Property thereunder shall be
considered "Asset Sales" to the extent of any proceeds thereof not
applied to the replacement of Property pursuant to Section 6.4(a)(ii)).
"Assignee": as defined in Section 9.6(c).
"Assignment and Acceptance": as defined in Section 9.6(c).
"Assignor": as defined in Section 9.6(c).
"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.
"Benefited Lender": as defined in Section 9.7(a).
"Board": the Board of Governors of the Federal Reserve System of
the United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrower's Closing Certificate": a Closing Certificate in the
form of Exhibit A to this Agreement.
"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
clause (b) 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, and (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.
"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 member 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.
"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) interest-bearing demand
or time deposits (which may be represented by certificates of deposit)
issued by banks having general obligations rated (on the date of
acquisition thereof) at least "A" or the equivalent by S&P or Moody's or,
if not so rated, secured at all times, in the manner and to the extent
provided by law, by collateral security consisting of property of the
type specified in clause (a) or (b) of this definition, with a market
value of no less than the amount of monies so invested; (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 the highest rating
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 (d) of this definition; and
(g) to the extent not permitted in clauses (a) through (f) of this
definition, Permitted Securities.
"Change of Control": WRL shall cease to own, directly or
indirectly, 100% of the outstanding Capital Stock of the Borrower.
"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 4 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 Borrower or any other Person,
now owned or hereafter acquired, upon which a Lien is purported to be
created by any Security Document.
"Collateral Account Agreement": that certain Collateral Account
Agreement dated as of the date hereof among the Administrative Agent, the
Borrower and the Securities Intermediary substantially in the form of
Exhibit B-1.
"Commitment": as to any Lender, the obligation of such Lender, if
any, to make a Loan to the Borrower hereunder in a principal amount not
to exceed the amount set forth under the heading "Commitment" opposite
such Lender's name on Schedule 1 hereto or in any 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.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower 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.
"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.
"Deed of Trust": the Deed of Trust, Assignment of Rents and
Leases, Security Agreement and Fixture Filing, dated as of May 3, 2004,
made by the Borrower to the Title Insurance Company for the benefit of
the Administrative Agent substantially in the form of Exhibit B-2.
"Default": any of the events specified in Section 7, 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.
"Disposition": with respect to any Property, any sale, lease, sale
and leaseback, assignment, conveyance, grant of restriction, transfer or
other disposition thereof; and the terms "Dispose" and "Disposed of"
shall have correlative meanings.
"Disqualification Event": with respect to any Lender or the
Administrative Agent: (a) the failure of such Person to timely file any
application or other documents requested of such Person by any Nevada
Gaming Authority pursuant to the Nevada Gaming Laws in connection with
any licensing or determination of suitability of that Person as a lender
to the Borrower or otherwise; (b) the withdrawal by such Person (except
where requested or permitted by the Nevada Gaming Authorities) of any
such application or other documents; or (c) the final determination by
the Nevada Gaming Authorities that such Person is denied any approval or
license, or otherwise found unsuitable, pursuant to the Nevada Gaming
Laws applicable to such Person.
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"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 Section 9.1, any 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 subject to a
Disqualification Event 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 Capital Stock of any
such casino owner or operator 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 Capital Stock of any
entity owning such convention or trade show facility shall not constitute
ownership for the purpose of this definition), shall be an Eligible
Assignee.
"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, safety, 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 and safety, 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.)
("CAA");
(f) the Emergency Planning and Community Right to Know Act (42
U.S.C. Section 11001 et seq.) ("EPCRA");
(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, 104 Stat.
486);
(i) the Safe Drinking Water Act (42 U.S.C. Sections 300f et
seq.) ("SDWA");
(j) the Surface Mining Control and Reclamation Act of 1974 (30
U.S.C. Sections 1201 et seq.) ("SMCRA");
(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.) ("HMTA");
(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");
(o) the Nevada Hazardous Materials law (NRS Chapter 459);
(p) the Nevada Collection and Disposal of Solid Waste/Sewage
law (NRS Chapter 444);
(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
to 618.900, inclusive);
(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 (including, without limitation, in the case of
waste, any substance which constitutes a scrap material or an
effluent or other unwanted surplus substance arising from the
application of any process or activity (including making it re-usable
or reclaiming substances from it) and any substance or article which
is required to be disposed of as being broken, worn out, contaminated
or otherwise spoiled);
(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.
"Equity Contribution": as defined in the Recitals.
"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 for which the applicable rate of
interest 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 equal to (a) 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 Loan of the Administrative Agent (in its
capacity as a Lender) with maturities comparable to the Interest Period
applicable to such Loan commencing two Business Days thereafter as of
10:00 A.M. (New York time) on the first day of such Interest Period,
divided (and rounded upward to the nearest 1/100 of 1%) 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": any of the events specified in Section 7,
provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Event of Loss": with respect to any property or asset (tangible
or intangible, real or personal), any of the following: (a) any loss,
destruction or damage of such property or asset; (b) 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 (c) any settlement in lieu of clause (b) above.
"Extensions of Credit": as to any Lender at any time, an amount
equal to the aggregate principal amount of all Loans made by such Lender
then outstanding.
"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.
"Fee Letter": that certain Arranger and Administrative Agent Fee
Letter, dated as of the date hereof, between the Arranger, the
Administrative Agent and the Borrower, as the same may be amended,
modified or supplemented from time to time.
"Fiscal Year": the fiscal year of the Borrower ending on December
31 of each calendar year.
"Funding Office": the office specified from time to time by the
Administrative Agent as its funding office by notice to the Borrower and
the Lenders.
"GAAP": generally accepted accounting principles in the United
States of America as in effect from time to time. "Governing Documents":
collectively, as to any Person, the articles or certificate of
incorporation, organization or formation and bylaws, any shareholders
agreement, limited liability company or 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 self-regulatory agency (e.g.,
NASD), 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 Obligation": as to any Person (the "guaranteeing
person"), 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, leases,
dividends 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, (iv) otherwise to
assure or hold harmless the owner of any such primary obligation against
loss in respect thereof or (v) under Hedge Agreements; 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.
"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," "hazardous materials" or "regulated substances" by the
RCRA; those substances designated as a "hazardous substance" pursuant to
Section 311 of the CWA; those substances defined as "hazardous materials"
in Section 103 of the HMTA; 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 40 C.F.R. Part 1910, 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 the Borrower 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.
"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, completion guaranties, 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, (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, (j) for the purposes of Section 7(e)
only, all obligations of such Person in respect of Hedge Agreements and
(k) the liquidation value of any preferred Capital Stock of such Person
or its Subsidiaries held by any Person other than such Person and its
Wholly Owned Subsidiaries.
"Indemnified Liabilities": as defined in Section 9.5.
"Indemnitee": as defined in Section 9.5.
"Indemnity Agreement": that certain Indemnity Agreement dated as
of the date hereof, executed by the Borrower in favor of the
Administrative Agent, substantially in the form of Exhibit B-3.
"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 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 the Phase II Land or any other Collateral (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 the
Phase II Land or any other Collateral, or any other body exercising
similar functions.
"Interest Payment Date": (a) as to any Eurodollar Loan, the last
day of such Interest Period, and (b) 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 Termination Date, and (c) as to any Loan
(including any Base Rate 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 Loan and ending one month thereafter; and (b)
thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such Loan and ending one month thereafter;
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 Termination Date shall end on the Termination Date;
(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; and
(iv) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"Interest Reserve Account": the account referenced in Section 2.18
and established pursuant to the Collateral Account Agreement.
"Interest Reserve Disbursement Certificate": a certificate duly
executed by a Responsible Officer of the Borrower substantially in the
form of Exhibit E-2 hereto.
"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, or (b) any amount
required to be paid and/or reimbursed by such Lender to the
Administrative Agent or any other Lender hereunder or under any other
Loan Document, in each case at or prior to such time that the same is
required to be so made, paid or reimbursed by such Lender.
"Lenders": as defined in the preamble hereto.
"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, any option or other agreement
to sell or give a security interest in such Property and any filing of or
agreement to give any financing statement under the UCC (or equivalent
statues) of any jurisdiction).
"Loan Documents": this Agreement, the Security Documents, the
Indemnity Agreement, the Notes and the Fee Letter.
"Loans": as defined in Section 2.1.
"Loss Proceeds": 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 Borrower hereunder.
"Material Adverse Effect": one or a combination of conditions or
changes affecting, in a material adverse way (a) the assets, liabilities
or property of the Borrower, (b) the Phase II Land or the market value
thereof, (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 Affiliated Contracts": any Material Contract to which
the Borrower, on the one hand, and an Affiliate of the Borrower, on the
other hand, are parties.
"Material Contract": Any contract or arrangement to which (i) the
Borrower, on the one hand, and an Affiliate of the Borrower, on the other
hand, are parties pursuant to which the Borrower 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) the
Borrower is a party (other than the Loan Documents) 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.
"Multiemployer Plan": a Plan that is a multiemployer plan as
defined in Section 3(37) or 4001(a)(3) of ERISA.
"Net Cash Proceeds": in connection with any Asset Sale, 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, net of arm's length attorneys' fees, accountants' fees, investment
banking fees, amounts required to be applied to the repayment of
Indebtedness secured by a Lien expressly permitted hereunder on any asset
which is the subject of such Asset Sale (other than any Lien pursuant to
a Security Document) and other arm's length fees and expenses, in each
case, to the extent actually incurred in connection with such Asset Sale
and net of 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).
"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
and other governmental, regulatory and administrative agencies, boards
and officials of, or having jurisdiction over, gaming or gaming
activities or operations in the State of Nevada.
"Nevada Gaming Laws": the Nevada Gaming Control Act, as codified
in Chapter 463 of the NRS, as amended from time to time, the regulations
of the Nevada Gaming Commission promulgated thereunder, as amended from
time to time, and other regulations promulgated by the Nevada Gaming
Authorities and applying to gaming, the distribution of gaming devices
and associated equipment, or gaming operations in the State of Nevada.
"Non-Defaulting Lender": any Lender other than a Defaulting Lender.
"Non-Excluded Taxes": as defined in Section 2.14(a).
"Non-U.S. Lender": as defined in Section 2.14(f).
"Notes": as defined in Section 2.3(e).
"Notice of Borrowing": a certificate duly executed by a
Responsible Officer of the Borrower substantially in the form of Exhibit
E-1 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
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding,
relating to the Borrower, 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 the Borrower to the Arranger, to the
Administrative Agent or to 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 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 the Arranger, to the
Administrative Agent or to any Lender that are required to be paid by the
Borrower pursuant hereto or to any other Loan Document) or otherwise.
"Operative Documents": the Loan Documents and the Material
Contracts.
"Participant": as defined in Section 9.6(b).
"Payment Office": the office of the Administrative Agent specified
in Section 9.2 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 consents, orders, 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).
"Permitted Encumbrances": as defined in Section 4.1(p).
"Permitted Liens": the collective reference to the Liens permitted
by Section 6.2 (but only of the priority and to the extent of coverage
expressly set forth in Section 6.2).
"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 and in any event prior to the Scheduled Termination Date of
the Loans, or (b) shares of money market, mutual or similar funds which
invest exclusively in assets satisfying the requirements of clause (a) of
this definition.
"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 II Additions": (a) the demolition of the existing Desert Inn
located on the Phase II Land, (b) the relocation of office space and (c)
the expansion of the existing employee parking garage and the construction
of an additional parking garage, both on the Phase II Land, all as more
particularly described in Exhibit C-2 to this Agreement.
"Phase II Land": the approximately 20-acre tract of land owned by
the Borrower, as more particularly described in Exhibit C-1 to this
Agreement.
"Phase II Proceeds Account" the account referenced in Section 2.18
and established pursuant to the Collateral Account 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 Commonly Controlled Entity
maintains, administers, contributes to or is required to contribute to or
under which the Borrower or any Commonly Controlled Entity could incur any
liability.
"Plans and Specifications": all plans, specifications, design
documents, schematic drawings and related items for the design,
architecture and construction of the Phase II Additions which are
consistent with the standards of Exhibit C-2, in each case, as amended in
accordance with Section 6.9 of this Agreement.
"Prime Rate": 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 5.6(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.
"Register": as defined in Section 9.6(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).
"Reinvestment Deferred Amount": with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by the Borrower in
connection therewith that are not applied to prepay the Loans pursuant to
Section 2.6(a) 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 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 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 business.
"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 business.
"Reinvestment Prepayment Date": with respect to any Reinvestment
Event, the earlier of (a) the date occurring six months after such
Reinvestment Event (or, if the contemplated acquisition of assets in
connection with the corresponding Reinvestment Notice cannot be completed
within such six month period but is reasonably expected to be completed
within nine months after such Reinvestment Event, nine months after such
Reinvestment Event) and (b) the date on which the Borrower shall have
determined not to acquire assets useful in its business with all or any
portion of the relevant Reinvestment Deferred Amount.
"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.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"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 subsections .27, .28, .29, .30, .31, .32, .34 or .35 of
PBGC Reg. Section 4043.
"Required Lenders": at any time, Non-Defaulting Lenders holding
more than 50% of the sum of the Total 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,
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. Unless otherwise qualified, all references to a "Responsible
Officer" shall refer to a Responsible Officer of the Borrower.
"S&P": Standard & Poor's Ratings Group, a New York corporation, or
any successor thereof.
"Scheduled Termination Date": December 31, 2005.
"Secured Parties": collectively, the Arranger, the Administrative
Agent and the Lenders.
"Securities Intermediary": Deutsche Bank Trust Company Americas, in
its capacity as securities intermediary under the Collateral Account
Agreement.
"Security Documents": the collective reference to the Deed of
Trust, the Collateral Account Agreement and any and all other pledge and
security documents hereafter delivered to 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 the Borrower under any
Loan Document.
"Single Employer Plan": any Plan that is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"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.
"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).
"Taking": a taking or voluntary conveyance during the term of this
Agreement of all or part of the Phase II Land or any other Collateral, 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 the Phase II Land or
any other Collateral or any portion thereof, whether or not the same shall
have actually been commenced.
"Termination Date": the earlier of (a) the Scheduled Termination
Date and (b) the date on which the Loans become due and payable pursuant
to Section 7.
"Title Insurance Company": collectively, Nevada Title Company and
such other title insurance companies that have issued a Title Policy to
the Administrative Agent on behalf of the Lenders in connection with or
related to the Deed of Trust.
"Title Policy": the policy of title insurance issued by the Title
Insurance Company with respect to the Deed of Trust.
"Total Commitments": at any time, the aggregate amount of the
Commitments then in effect; provided, that the maximum amount of the Total
Commitments shall be $143,400,000.00.
"Total Extensions of Credit": at any time, the aggregate amount of
the Extensions of Credit of the Lenders outstanding at such time.
"Transferee": as defined in Section 9.14.
"Type": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar Loan.
"UCC": the Uniform Commercial Code, as in effect from time to time
in any jurisdiction.
"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.
"Wynn Las Vegas Credit Agreement": that certain Credit Agreement
dated as of October 30, 2002, as amended by that certain First Amendment
to Credit Agreement and Other Loan Documents dated as of May 28, 2003 and
that certain Second Amendment to Credit Agreement and Limited Waiver dated
as of May 3, 2004 among the Borrower, Deutsche Bank Securities Inc., as
lead arranger and joint book running manager, Deutsche Bank Trust Company
Americas, as administrative agent and swing line lender, Banc of America
Securities LLC, as lead arranger, joint book running manager and
syndication agent, Bear, Stearns & Co., Inc., as arranger and joint book
running manager, Bear Stearns Corporate Lending Inc., as joint
documentation agent, Dresdner Banking AG, New York and Grand Cayman
Branches, as arranger and joint documentation agent, and JPMorgan Chase
Bank, as joint documentation agent, as further amended or supplemented or
amended and restated from time to time.
"Wynn Las Vegas Credit Agreement Event of Default": an "Event of
Default" as defined in the Wynn Las Vegas Credit 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 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) 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, modified and supplemented from time to time and in effect at the time
of determination.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Availability. Subject to the terms and conditions hereof, and
in reliance upon the representations and warranties of the Borrower herein set
forth, each Lender severally agrees to make a term loan (the "Loans") to the
Borrower on the Closing Date in an aggregate principal amount not to exceed the
amount of the Commitment of such Lender. The Loans made on the Closing Date
shall be Eurodollar Loans and thereafter 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 2.2 and 2.7. Loans borrowed
and subsequently repaid or prepaid may not be reborrowed.
2.2 Procedure for Borrowing.
(a) Borrower shall request the borrowing of Loans by delivering to
Administrative Agent a Notice of Borrowing, appropriately completed, which
specifies:
(i) The aggregate amount of the Loans to be borrowed, which
amount of such Loans shall not exceed the Total Commitments;
(ii) The proposed date of such borrowing, which shall be the
Closing Date; and
(iii) In the case of Eurodollar Loans, the length of the
Interest Period therefor, which shall be one month.
(b) Borrower shall so deliver the Notice of Borrowing to
Administrative Agent so as to provide at least three Business Days' notice or
such shorter period as the Administrative Agent may otherwise agree to. The
Notice of Borrowing shall be irrevocable. Upon receipt of the Notice of
Borrowing from the Borrower, the Administrative Agent shall promptly notify
each Lender 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 Closing Date in funds
immediately available to the Administrative Agent. Such borrowing will then,
upon satisfaction or waiver of the conditions precedent specified in Section 4,
be made available by the Administrative Agent, in like funds as received by the
Administrative Agent from the Lenders, and deposited into the appropriate
Accounts and made available to the Borrower as specified in Section 3.11 and in
such Notice of Borrowing, to be applied by the Borrower in accordance with
Section 5.8.
(c) The Borrower shall be permitted to make only one borrowing of
Loans which shall occur on the Closing Date. Any Commitment remaining after the
making of the Loans on the Closing Date (to the extent that the borrowing of
Loans on the Closing Date is for an amount less that the Total Commitments)
shall irrevocably expire without right of reinstatement after such borrowing.
2.3 Repayment of Loans; Evidence of Indebtedness.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the appropriate Lender, the then unpaid
principal amount of the Loan of such Lender, with any remaining unpaid
interest, fees and costs, on the 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 2.9.
(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 9.6(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 2.3(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; 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 Loans of such
Lender, substantially in the form of Exhibit F hereto, with appropriate
insertions as to date and principal amount (such notes, respectively, "Notes").
2.4 Fees, etc.
(a) The Borrower agrees to pay to the Arranger the fees in the
amounts and on the dates previously agreed to in writing by the Borrower and
the Arranger, including, without limitation, pursuant to the Fee Letter.
(b) 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 Fee Letter.
(c) The Borrower agrees to pay to the Securities Intermediary the
Securities Intermediary's customary fees and charges associated with
establishing and maintaining the Accounts.
2.5 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 the Eurodollar Loans and at least
one Business Day prior thereto in the case of the Base Rate Loans, which notice
shall 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
2.15; provided, further, that a notice of prepayment delivered by the Borrower
may state that such notice is conditioned upon the effectiveness of other
credit facilities, in which case such notice may be revoked by the Borrower (by
notice to the Administrative Agent on or prior to the specified effective date)
if such condition is not satisfied and in the case of any such revocation, the
Borrower shall pay to such Lender such amounts, if any, as may be required
pursuant to Section 2.15. Upon receipt of any such notice the Administrative
Agent shall promptly notify each 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 accrued interest to such date on the amount
prepaid. Partial prepayments of Loans shall be in an aggregate principal amount
of $5,000,000 or a whole multiple in excess thereof. Each prepayment of the
Loans under this Section 2.5 shall be accompanied by accrued interest to the
date of such prepayment to the applicable Lender on the amount prepaid. The
application of any prepayment pursuant to Section 2.5 shall be made, first, to
Base Rate Loans and, second, to Eurodollar Loans.
2.6 Mandatory Prepayments.
(a) With respect to the Net Cash Proceeds from any Asset Sale as to
which the Borrower has not delivered a Reinvestment Notice within the period
required therefor such Net Cash Proceeds (or portion thereof not subject to
such a Reinvestment Notice) shall be applied, within one Business Day of the
expiration of the aforesaid required period for delivery of a Reinvestment
Notice with respect to such Asset Sale, on such date toward the prepayment of
the Loans; 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 $2,000,000 in
any Fiscal Year and (ii) on each Reinvestment Prepayment Date, an amount equal
to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment
Event shall be applied toward the prepayment of the Loans.
(b) No later than the Business Day following the date on which Loss
Proceeds are received by the Borrower, the Borrower shall prepay and the
Administrative Agent shall apply such funds toward the prepayment of the Loans.
Each prepayment of the Loans under this Section 2.6 shall be accompanied by
accrued interest to the date of such prepayment to the applicable Lender on the
amount prepaid. The application of any prepayment pursuant to Section 2.6 shall
be made, first, to Base Rate Loans and, second, to Eurodollar Loans.
2.7 Conversion and Continuation Option.
(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, provided that any
such conversion of Eurodollar Loans may only be made on the last day of an
Interest Period with respect thereto. 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
therefor), provided that no Base Rate Loan may be converted into a Eurodollar
Loan (i) when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Required Lenders have determined or the
Required Lenders have in its or their sole discretion not to permit such
conversions or (ii) after the date that is one month prior to the Termination
Date.
(b) Any Eurodollar Loan shall be continued as such upon the
expiration of the then current Interest Period with respect thereto in
accordance with clause (b) of the term "Interest Period" set forth in Section
1.1, provided that no Eurodollar Loan may be continued as such (i) when any
Event of Default has occurred and is continuing and the Administrative Agent
has or the Required Lenders 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 Termination Date, and provided, further, that 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 and shall thereafter accrue interest at the Base Rate plus the
Applicable Margin.
2.8 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 five Eurodollar Tranches
shall be outstanding at any one time.
2.9 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
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 (whether or not overdue) shall bear interest at a rate per
annum that is equal to the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions of this Section plus 2.0% , and (ii) if
all or a portion of any interest payable on any Loan or other amount payable
hereunder (in accordance with Section 2.4 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 highest
interest rate then applicable to any Loans then outstanding 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 (b) of this Section
shall be payable from time to time on demand. Interest shall be paid on each
Interest Payment Date from the portion of the Loan proceeds on deposit in the
Interest Reserve Account in accordance with Section 2.18 or in such other
manner as the Borrower may elect (provided that if Borrower elects to pay in a
manner other than by disbursement of funds from the Interest Reserve Account
pursuant to Section 2.18 and such interest payment is not timely received by
the Administrative Agent, the Administrative Agent shall be entitled to
withdraw amounts from the Interest Reserve Account to pay the interest due
hereunder as provided in Section 2.18).
2.10 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 on which the rate of interest is
calculated on the basis of the Prime Rate, the interest thereon shall be
calculated on the basis of a 365-/366- 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
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 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 2.9(a).
2.11 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 Lenders 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
Lenders as soon as practicable thereafter. If such notice is given (x) any
Loans requested to be made on the first day of such Interest Period shall be
made as Base Rate Loans, and (y) any outstanding Eurodollar Loans 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, all Loans shall be made (or continued) as Base Rate Loans
and shall accrue interest at the Base Rate plus the Applicable Margin and the
Borrower shall have no right to convert Loans to Eurodollar Loans.
2.12 Pro Rata Treatment and Payments.
(a) Each borrowing by the Borrower from the Lenders hereunder shall
be made pro rata according to the respective Aggregate Exposure Percentages of
the Lenders. Subject to Section 2.12(c), each payment 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 2.12 shall be made, first, to Base Rate Loans, and second, to
Eurodollar Loans.
(b) Each payment (including each prepayment) of Loans shall be
allocated among the Lenders holding such Loans pro rata based on the principal
amount of such Loans held by such Lenders. Amounts prepaid on account of the
Loans may not be reborrowed.
(c) 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 on a 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 sentence, interest thereon shall be
payable at the then applicable rate during such extension.
(d) 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 (the Base Rate plus the Applicable
Margin), on demand, from the Borrower.
(e) 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.
2.13 Requirements of Law.
(a) 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 subject any Lender to any tax of any kind whatsoever
with respect to this Agreement or any Loan made by it, or change the basis
of taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by Section 2.14 and changes in the rate of tax
on the overall net income of such Lender);
(ii) 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
(iii) 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 to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender on an after-tax basis for such increased cost or reduced
amount receivable. 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 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.
2.14 Taxes.
(a) All payments made by the Borrower 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, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Arranger, the Administrative Agent
or any Lender as a result of a present or former connection between such
Arranger, such Administrative Agent, 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 Administrative Agent'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). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any
amounts payable to the Arranger, the Administrative Agent or any Lender
hereunder, the amounts so payable to such Arranger, such Administrative Agent
or such Lender shall be increased to the extent necessary to yield to such
Arranger, such Administrative Agent 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 the Borrower shall not be required to
increase any such amounts payable to the Arranger, the Administrative Agent or
any Lender with respect to any Non-Excluded Taxes (i) that are attributable to
such Arranger's, such Administrative Agent's, or such Lender's failure to
comply with the requirements of subsection (f) or (g) of this Section 2.14, or
(ii) that are United States withholding taxes imposed on amounts payable to
such Arranger, such Administrative Agent, or such Lender at the time such
Arranger, such Administrative Agent, or such Lender becomes a party to this
Agreement, except to the extent that such Arranger's, such Administrative
Agent's, or such Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with respect to
such Non-Excluded Taxes pursuant to this Section 2.14(a). The Borrower 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 the Arranger, the Administrative Agent, or any Lender, as
applicable, receives a refund of a tax for which a payment has been made by the
Borrower pursuant to this Section 2.14, which refund in the good faith judgment
of such Arranger, the Administrative Agent, or Lender, as the case may be, is
attributable to such payment made by the Borrower, then such Arranger,
Administrative Agent or Lender, as the case may be, shall reimburse the
Borrower for such amount as such Arranger, Administrative Agent or Lender, as
the case may be, determines in good faith to be the proportion of the refund 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 under this
Section 2.14 had not been made. Subject to the first sentence of this Section
2.14(b), upon the reasonable request of the Borrower (and at the Borrower's
expense), the Lender or the Administrative Agent, as applicable, shall at its
sole discretion, exercised in good faith, use reasonable efforts to cooperate
with the Borrower with a view to obtaining a refund of any Non-Excluded Taxes
with respect to which the Borrower has paid any amounts pursuant to Section
2.14 and which the Borrower, on advice of counsel, reasonably believes were not
correctly or legally asserted by the relevant Governmental Authority.
(c) Subject to subsection (f) below, the Borrower shall indemnify
the Arranger, the Administrative Agent and any Lender for the full amount of
Non-Excluded Taxes to the extent payable but not paid by the Borrower pursuant
to Section 2.14(a) and paid by such Arranger, Administrative Agent 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 2.14(a) or this Section 2.14(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 the Arranger, the Administrative Agent, 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 2.14(a) shall use reasonable
efforts (consistent with legal and regulatory restrictions) to file any
certificate or document reasonably requested in writing by the Borrower 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, as
promptly as possible thereafter the Borrower shall send to the Administrative
Agent for the account of the Arranger, the Administrative Agent, or Lender, as
the case may be, a certified copy of an original official receipt received by
the Borrower showing payment thereof.
(e) The agreements in this Section 2.14 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, 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 G hereto 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 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 2.17 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 2.14(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 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 able to deliver.
(g) The Arranger, the Administrative Agent and each Lender that is
entitled to an exemption from non-U.S. withholding taxes under the law of the
jurisdiction in which the Borrower 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 (with a copy to the
Administrative Agent), at the time or times prescribed by applicable
Requirements of Law or reasonably requested by the Borrower, such properly
completed and executed documentation prescribed by applicable Requirements of
Law as will permit such payments to be made without withholding; provided, that
the Arranger, the Administrative Agent 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 shall pay all Non-Excluded Taxes to the relevant
Governmental Authority in accordance with applicable Requirements of Law.
2.15 Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss 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, (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 the revocation by Borrower of any notice of prepayment conditioned
upon the effectiveness of other credit facilities, or (c) the making of a
prepayment of 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 all other amounts payable hereunder.
2.16 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 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 and shall thereafter accrue interest at the Base Rate
plus the Applicable Margin. If any such conversion of a 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 2.15.
2.17 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.13, 2.14 or
2.16 with respect to such Lender, it will, if requested by the Borrower, 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 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 the Borrower or
any Lender pursuant to Section 2.13, 2.14 or 2.16.
2.18 Accounts.
(a) Establishment of Accounts. The Administrative Agent hereby
establishes at its offices located at 60 Wall Street, 11th Floor, New York, New
York 10005, the following accounts, each of which shall be maintained as a
special, segregated securities account at all times until such accounts are
closed as set forth in Section 9.15(b):
Account: Account Number:
Phase II Proceeds Account 41150
Interest Reserve Account 41149
The Administrative Agent shall hold and safeguard the Accounts (and the cash,
instruments and securities on deposit therein) during the term of this Agreement
and shall treat the Accounts and the cash, instruments, and securities in the
Account as funds, instruments and securities pledged by the Borrower to the
Administrative Agent for the ratable benefit of the Secured Parties to be held
in accordance with the provisions hereof and the Collateral Account Agreement.
(b) Phase II Proceeds Account Disbursements. So long as no Default
or Event of Default shall have occurred and be continuing and subject to the
Collateral Account Agreement, the Borrower shall be permitted from time to time
to draw checks on and otherwise withdraw amounts on deposit in the Phase II
Proceeds Account to pay costs and expenses incurred to construct the Phase II
Additions and other costs and expenses directly related to the ownership of the
Phase II Land (such as real property taxes) in accordance with Section 5.8.
Notwithstanding the foregoing, the Borrower shall be permitted to withdraw
amounts on deposit in the Phase II Proceeds Account to pay costs and expenses
pursuant to Sections 3.11(d) and (e).
(c) Interest Reserve Account Disbursements. At least five (5)
Business Days prior to each Interest Payment Date, the Borrower shall deliver
to the Administrative Agent an Interest Reserve Disbursement Certificate
certifying as to the interest required to be paid with respect to the Loans
under this Agreement on such Interest Payment Date and the calculation of such
amount. On each such Interest Payment Date, the Administrative Agent shall
liquidate securities held in the Interest Reserve Account (to the extent
required) and pay over to the Lenders in accordance with Section 2.12 the
interest due, as specified in such certificate, from the Interest Reserve
Account. In the event that the Borrower fails to deliver the certificate
required by the first sentence of this paragraph (or sets forth in such
certificate an incorrect calculation of the amount required to be paid under
this Agreement on such Interest Payment Date or otherwise fails to pay interest
due hereunder), the Administrative Agent may liquidate such securities (to the
extent required), and disburse to the Lenders in accordance with Section 2.12
the amounts necessary to pay the interest due hereunder. In the event there are
insufficient funds in the Interest Reserve Account to pay any amount due
pursuant to such certificate or direction so given by the Administrative Agent,
the Borrower shall, prior to the applicable Interest Payment Date, deposit in
cash into the Interest Reserve Account an amount equal to such deficiency;
provided, however, that the Administrative Agent shall disburse an amount equal
to such deficiency from the Phase II Proceeds Account to the Interest Reserve
Account in the event such amounts are not received from the Borrower on a
timely basis. The Borrower acknowledges that any failure by the Borrower to
provide notice or deposit funds referenced in this Section shall not in any way
exonerate or diminish its obligation to make all payments under this Agreement
as and when due.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that, on the Closing Date,
the following statements are true, correct and complete, it being understood
that such representations and warranties are being made solely as of the
Closing Date:
3.1 LLC Existence; Compliance with Law. The Borrower (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the limited liability company power
and authority, and the legal right, to own and operate its Property, 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.
3.2 LLC Power; Authorization; Enforceable Obligations. The Borrower
has the limited liability company power and authority, and the legal right, to
make, deliver and perform the Loan Documents and the other Operative Documents
to which it is a party and to carry out the transactions contemplated thereby
and to borrow hereunder. The Borrower has taken all necessary limited liability
company action to authorize the execution, delivery and performance of the Loan
Documents and the other Operative Documents to which it is a party and to
authorize the borrowings and issuances of Indebtedness on the terms and
conditions of this Agreement and the other Operative Documents. 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 the Borrower) is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of this Agreement, any of the Loan
Documents or any of the other Operative Documents, except the filings and
actions referred to in Section 3.14. Each Loan Document and other Operative
Document has been duly executed and delivered on behalf of the Borrower. This
Agreement constitutes, and each other Operative Document upon execution will
constitute, a legal, valid and binding obligation of the Borrower, enforceable
against the Borrower 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).
3.3 No Legal Bar. The execution, delivery and performance of this
Agreement and the other Operative Documents, the borrowings hereunder and the
use of the proceeds thereof will not violate any Requirement of Law or any
Contractual Obligation of the Borrower and will not result in, or require, the
creation or imposition of any Lien on any of its properties or revenues
pursuant to any Requirement of Law or any such Contractual Obligation (other
than the Liens created by the Security Documents). No Requirement of Law or
Contractual Obligation applicable to the Borrower could, individually or
collectively, reasonably be expected to have a Material Adverse Effect.
3.4 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 the Borrower or
against any of its properties or revenues (a) with respect to any of the Loan
Documents 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.
3.5 No Default. The Borrower is not 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.
3.6 Ownership of Property; Liens. The Borrower is the sole owner
of, legally and beneficially, and has good, marketable and insurable title to
all Phase II Land, and good title to all its other Property, and, except for
Permitted Liens, 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 business or assets of the Borrower), or to any Lien. None of
the Collateral is subject to any Lien except for Permitted Liens.
3.7 Taxes.
(a) The Borrower has filed, or caused to be filed, all 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. The Borrower has paid all taxes shown to be
due and payable on such returns and all other 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
Borrower other than Liens permitted pursuant to Section 6.2(a).
3.8 Federal Regulations. No part of the proceeds of the Loans will
be used for purchasing or carrying any "margin stock" (within the meaning of
Regulation U) or for the purpose of purchasing, carrying or trading in any
securities under such circumstances as to involve the Borrower in a violation
of Regulation X or to involve any broker or dealer in a violation of Regulation
T. No indebtedness being reduced or retired out of the proceeds of the Loans
was or will be incurred for the purpose of purchasing or carrying any "margin
stock" (within the meaning of Regulation U). Following application of the
proceeds of the Loans, "margin stock" (within the meaning of Regulation U) does
not constitute more than 25% of the value of the assets of the Borrower and its
Subsidiaries. None of the transactions contemplated by this Agreement
(including, without limitation, the direct and indirect use of proceeds of the
Loans) will violate or result in a violation of Regulation T, Regulation U or
Regulation X. If requested by any Lender or the Administrative Agent, the
Borrower will furnish to the Administrative Agent and each Lender a statement
to the foregoing effect in conformity with the requirements of FR Form G-3 or
FR Form U-1 referred to in Regulation U.
3.9 ERISA. 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. 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.
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 by a material amount. Neither the Borrower, nor any Commonly
Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan that has resulted or could reasonably be expected to result
in a material liability under ERISA, and neither the Borrower, 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 Borrower. As of
the Closing Date, no such Multiemployer Plan is in Reorganization or Insolvent.
3.10 Investment Company Act; Other Regulations. The Borrower is not
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Borrower is not 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.
3.11 Use of Proceeds. The proceeds of the extensions of credit
under this Agreement shall be used as follows:
(a) $82,624,692.00 of the Loan proceeds shall be distributed by the
Borrower through its parent company, Bora, to WRL and shall be used by WRL to
make the Equity Contribution to WLV to fund a portion of WLV's other projects
pursuant to the Wynn Las Vegas Credit Agreement;
(b) $17,827,965.00 of the Loan proceeds shall be deposited into the
Interest Reserve Account and shall be used to pay accrued interest on the Loans
in accordance with Sections 2.9 and 2.18; and
(c) the remaining Loan proceeds shall be deposited into the Phase
II Proceeds Account and shall be used on the Closing Date to pay closing costs
and expenses and thereafter shall be used to fund the development and
construction of the Phase II Additions on the Phase II Land and to pay other
costs and expenses reasonably related to the ownership of the Phase II Land
(such as real property taxes and including any additional Closing costs and
expenses not paid on the Closing Date) .
3.12 Environmental Matters.
(a) To the knowledge of the Borrower, the Borrower: (i) is, and
within the period of all applicable statutes of limitation has been, in
material compliance with all applicable Environmental Laws; and (ii) reasonably
believes that material compliance with all applicable Environmental Laws that
are or are expected to become applicable to it will be timely attained and
maintained.
(b) To the knowledge of the Borrower, Hazardous Substances are not
present at, on, under, in, or about the Phase II Land, 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 the Borrower under any applicable Environmental Law or otherwise
result in costs to the Borrower that could reasonably be expected to have a
Material Adverse Effect, or (ii) materially interfere with the Borrower's
continued operations, or (iii) materially impair the fair saleable value the
Phase II Land.
(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 the Borrower 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) The Borrower has not received any written request for
information, or been notified that it is a potentially responsible party, under
or relating to CERCLA or any similar Environmental Law.
(e) Except as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, the Borrower has not
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, the Borrower has not
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 Phase II Land and (ii) the Borrower
has never engaged in any Hazardous Materials Activities at any location.
3.13 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, or any other document,
certificate or statement furnished to the Administrative Agent, or the Lenders
or any of them, by or on behalf of the Borrower for use in connection with the
transactions contemplated by this Agreement or the other Loan Documents,
contained as of the date such statement, information, document or certificate
was so furnished, 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. There are no facts known to the Borrower that could,
individually or collectively, reasonably be expected to have a Material Adverse
Effect that has not been expressly disclosed herein, in the other Loan
Documents, or in any other documents, certificates and written statements
furnished to the Administrative Agent, and the Lenders for use in connection
with the transactions contemplated hereby and by the other Loan Documents.
3.14 Security Documents.
(a) The Deed of Trust is effective to create in favor of the
Administrative Agent, for the benefit of the Secured Parties, a legal, valid,
binding and enforceable Lien on, and security interest in, the Phase II Land
and all other Collateral described therein and proceeds and products thereof.
The Deed of Trust shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Borrower (i) in the Phase II
Land and all other Collateral described therein constituting real property or
fixtures and the proceeds and products thereof when the Deed of Trust is filed
in the office of the Clark County Recorder in the State of Nevada, and (ii) in
the case of the other Collateral described therein and the proceeds and
products thereof, when financing statements in appropriate form are filed in
the appropriate filing offices, in each case, as security for the Obligations,
and subject only to Permitted Liens and prior and superior in right to any
other Lien (other than Permitted Liens).
(b) The Collateral Account Agreement is effective to create in
favor of the Administrative Agent, for the benefit of the Secured Parties, a
legal, valid and enforceable security interest in the Accounts described
therein and proceeds and products thereof. Upon the execution of the Collateral
Account Agreement, the Collateral Account Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the Borrower 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 (other than Permitted Liens).
3.15 Regulation H. The Deed of Trust does not encumber 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.
3.16 Insurance. The Borrower 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 5.4; and the Borrower has no 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).
3.17 Phase II Land.
(a) The Phase II Land and the current use thereof complies with all
applicable Requirements of Law (including building and zoning ordinances and
codes) and with all Insurance Requirements, except where noncompliance or any
non-conforming use could not, individually or collectively, reasonably be
expected to have a Material Adverse Effect.
(b) No Taking has been commenced or, to the Borrower's knowledge,
is contemplated with respect to all or any portion of the Phase II Land or for
the relocation of roadways providing access to such Phase II Land except, in
each case, as could not, individually or collectively, reasonably be expected
to have a Material Adverse Effect.
(c) Except for assessments constituting Permitted Encumbrances, as
of the Closing Date there are no current, pending or, to the knowledge of the
Borrower, proposed special or other assessments for public improvements or
otherwise affecting the Phase II Land, nor are there any contemplated
improvements to such Phase II Land that may result in such special or other
assessments in each case as could reasonably be expected to result in a
material liability to the Borrower.
(d) The Borrower has not suffered, permitted or initiated the joint
assessment of the Phase II Land with any other real property constituting a
separate tax lot. The Phase II Land has been properly subdivided or entitled to
exception therefrom, and for all purposes the Phase II Land may be mortgaged,
conveyed and, otherwise dealt with as separate legal lots or parcels.
(e) The use being made of all Phase II Land is in conformity with
the certificate of occupancy and/or such other permits, licenses, variances and
certificates for such Phase II Land and any other reciprocal easement
agreements, restrictions, covenants or conditions affecting such Phase II Land
except, in each case, to the extent such non-conformity could not reasonably be
expected to materially and adversely affect the ownership, occupancy, use or
operation of the Phase II Land.
(f) There are no outstanding options to purchase or rights of first
refusal or restrictions on transferability affecting the Phase II Land (other
than those set forth in the Loan Documents and other than Permitted Liens).
SECTION 4. CONDITIONS PRECEDENT
THE CLOSING DATE AND ADVANCES
4.1 Conditions Precedent to the Closing Date. The occurrence of the
Closing Date and the making of the Loans are subject to the prior or concurrent
satisfaction of each of the conditions precedent hereinafter set forth in this
Section 4.1 in form and substance satisfactory to each of the Administrative
Agent and the Lenders in its sole discretion. Subject to Section 4.2, by
executing this Agreement each of the Administrative Agent and the Lenders shall
be deemed to have confirmed that it has become satisfied that each of the
following conditions precedent in this Section 4.1 has been satisfied.
(a) Loan Documents and Material Contracts. Delivery to the
Administrative Agent (with such number of originally executed copies as it may
reasonably request) of (i) executed originals of each Loan Document and true
and correct copies of each Affiliate Lease and Easement Agreement and each
Material Contract then in effect and any supplements or amendments thereto then
in effect, all of which shall be in form and substance satisfactory to the
Administrative Agent, shall have been duly authorized, executed and delivered
by the parties thereto, and each such Affiliate Lease and Easement Agreement
and each such Material Contract shall be certified by a Responsible Officer of
the Borrower as of the Closing Date as being true, complete and correct and in
full force and effect, and (ii) evidence satisfactory to the Administrative
Agent that each Operative Document is in full force and effect and that no
party to any such Operative Document is or, but for the passage of time or
giving of notice or both will be, in breach of any material obligation
thereunder.
(b) LLC Authority of the Borrower. Delivery to the Administrative
Agent of (i) a certified copy of the Articles of Organization of the Borrower,
(ii) good standing certificates for the Borrower issued by the Secretary of
State of Nevada, (iii) a certified copy of the operating agreement of the
Borrower certified by a Responsible Officer of WRL, the ultimate parent
corporation of the Borrower, and (iv) a copy of one or more resolutions or
other authorizations of the Borrower certified by a Responsible Officer of WRL,
the ultimate parent corporation of the Borrower, as being in full force and
effect on the Closing Date, authorizing the execution, delivery and performance
of this Agreement and the other Operative Documents and any instruments or
agreements required hereunder or thereunder to which the Borrower is a party.
(c) Incumbency of the Borrower. Delivery to the Administrative
Agent of a certificate from the Borrower reasonably satisfactory in form and
substance to the Administrative Agent signed by a Responsible Officer of WRL,
the ultimate parent corporation of the Borrower, and dated as of the Closing
Date, as to the incumbency of the Person or Persons authorized to execute and
deliver this Agreement, the other Material Contracts (not theretofore executed)
and the Loan Documents and any documents, instruments or agreements required
hereunder or thereunder to which the Borrower is a party.
(d) Insurance. Insurance complying in all material respects with
the requirements of Schedule 5.4(c) shall be in place and in full force and
effect. Borrower shall have delivered to the Administrative Agent 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
Schedule 5.4(c) and otherwise in form and substance reasonably satisfactory to
the Administrative Agent.
(e) Project Security. All actions necessary or desirable, including
all filings, in the opinion of the Administrative Agent, to perfect the
security interests granted in the Security Documents as a valid security
interest over the Collateral having the priority contemplated therefor by this
Agreement and the Security Documents shall have been delivered to the
Administrative Agent.
(f) Opinions. The Administrative Agent shall have received the
opinions identified in Exhibit H.
(g) Borrower's Closing Certificate. Delivery to the Administrative
Agent of the Borrower's Closing Certificate signed by a Responsible Officer of
the Borrower.
(h) Notice of Borrowing. Delivery to the Administrative Agent of a
Notice of Borrowing in accordance with Section 2.2.
(i) Litigation
(i) No action, suit, proceeding or investigation of any kind
shall have been instituted or, to the Borrower's knowledge, pending or
threatened, including actions or proceedings of or before any Governmental
Authority, to which the Borrower is a party or the Borrower or the Phase
II Land is subject, or by which it or any of its properties or the Phase
II Land are bound that could reasonably be expected to have a Material
Adverse Effect, nor is the Borrower 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.
(ii) The Lenders shall have received the results of a recent
lien, tax lien, judgment and litigation search in each relevant
jurisdiction with respect to the Borrower and the Phase II Land, and such
search shall reveal no liens on any of the assets of the Borrower or the
Phase II Land except for liens permitted by the Loan Documents or liens to
be discharged on or prior to the Closing Date pursuant to documentation
satisfactory to the Administrative Agent.
(j) Fees. All amounts required to be paid to or deposited with the
Administrative Agent, 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 4.1, shall have been paid or deposited,
as the case may be, in full to the extent invoiced prior to the Closing Date.
The Borrower shall have paid or arranged for payment out of the requested Loans
of all fees, expenses and other charges then due and payable by it under this
Agreement or the other Loan Documents.
(k) No Adverse Change. There shall not have occurred any disruption
or adverse change, as determined by the Administrative Agent in its sole
discretion, in the financial or capital markets generally, or in the markets
for bank loan syndication in particular or affecting the syndication or funding
of bank loans that may have an adverse impact on the ability to syndicate the
Loans.
(l) 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 Borrower in the Borrower's Closing Certificate.
(m) Representations and Warranties. Each representation and
warranty of the Borrower set forth in Article 3 hereof or in any of the other
Operative Documents 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), as certified by the Borrower in the Borrower's Closing Certificate.
(n) Service of Process. Delivery to the Administrative Agent of a
letter from Corporation Service Company or any other Person reasonably
satisfactory to the Administrative Agent consenting to its appointment by the
Borrower, in form and substance acceptable to the Administrative Agent and the
Borrower, as the Borrower's agent to receive service of process in New York,
New York.
(o) A.L.T.A. Survey. The Administration Agent shall have received
an A.L.T.A. survey of the Phase II Land, satisfactory in form and substance to
the Title Insurance Company and the Administrative Agent, 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 (i) as to the
Phase II Land, the exact location and dimensions thereof, including the
location of all means of access thereto and all easements of record relating
thereto; all improvements or other encroachments therein or thereon; (ii) the
existing utility facilities servicing the Phase II Land (including water,
electricity, gas, telephone, sanitary sewer and storm water distribution and
detention facilities); (iii) 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; (iv) whether the Phase II Land
or any portion thereof is located in a special earthquake or flood hazard zone;
and (v) 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. The Administrative Agent shall have received an overlay to the
A.L.T.A. Survey showing the proposed perimeters within which all of the
foundations for the Phase II Additions are to be located pursuant to the Plans
and Specifications.
(p) Title Policy. The Borrower shall have delivered to the
Administrative Agent, a lender's A.L.T.A. policy of title insurance, or a
commitment to issue such policy, in the amount of $143,400,000.00. Each such
policy or commitment shall (i) include such endorsements as are required by the
Administrative Agent, (ii) be reinsured by such reinsurance as is satisfactory
to the Administrative Agent, (iii) be issued by the Title Insurance Company in
form and substance satisfactory to the Administrative Agent and (iv) insure (or
agree to insure) that:
(i) The Borrower has fee simple title to the Phase II Land free
and clear of liens, encumbrances and other exceptions to title except
those exceptions specified on Exhibit I ("Permitted Encumbrances"); and
(ii) The Deed of Trust is (or will be when recorded) a valid
lien on the "Trust Estate" (as defined in the Deed of Trust) entitled to
the priority described therein, free and clear of all liens, encumbrances
and exceptions to title whatsoever, other than Permitted Liens.
(q) Fee Letters. The letters regarding the fees of the
Administrative Agent and the Arranger, respectively, shall have been executed
and delivered. The Borrower shall have complied with all of its obligations
under and agreements in the Fee Letter then required to be complied with.
(r) Real Estate Appraisal. The Administrative Agent shall have
received a FIRREA appraisal of the Phase II Land from an independent real
estate appraiser reasonably satisfactory to the Administrative Agent, in form,
scope and substance and demonstrating a value satisfactory to the
Administrative Agent and satisfying the requirements of any applicable laws and
regulations (the "Appraisal").
(s) Environmental Reports. The Administrative Agent shall have
received a Phase I environmental assessment for the Phase II Land (the "Phase I
Report") conducted by a firm satisfactory to the Administrative Agent and a
reliance letter from said firm authorizing the Administrative Agent and the
Lenders to rely on the Phase I Report.
(t) No Restrictions. No order, judgment or decree of any court,
arbitrator or governmental authority shall purport to enjoin or restrain any of
the Lenders from making the Loans to be made by them on the Closing Date.
(u) Violation of Certain Regulations. The making of the requested
Loans shall not violate any law including Regulation T, Regulation U or
Regulation X of the Board of Governors of the Federal Reserve System.
(v) Other Documents. The Administrative Agent shall have received
such other documents and evidence as are customary for transactions of this
type as it may reasonably request in connection with the transactions
contemplated hereby.
4.2 No Waiver or Estoppel. The occurrence of Closing Date and
making of any Loans hereunder shall not preclude any Lender from later
asserting that (and enforcing any remedies it may have if) any representation,
warranty or certification made or deemed made by the Borrower in connection
with such Loans was not true and accurate when made.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain
in effect or any Loan or other amount is owing to any Lender, the Arranger or
the Administrative Agent hereunder or under any other Loan Document, the
Borrower shall:
5.1 Certificates; Other Information. Furnish to the Administrative
Agent and each Lender, or, in the case of subsections (b) and (c), to the
Administrative Agent, or, in the case of subsection (e), to the relevant
Lender:
(a) on the date of the occurrence thereof, notice that (i) a
"Default" or "Event of Default" has occurred (or has been alleged) under the
Wynn Las Vegas Credit Agreement, (ii) any or all of the obligations under the
Wynn Las Vegas Credit Agreement have been accelerated, or (iii) the
Administrative Agent or the required lenders under the Wynn Las Vegas Credit
Agreement have given notice that any or all such obligations are to be
accelerated;
(b) promptly, and in any event within ten Business Days after any
Material Contract is terminated or amended in any material respect or any new
Material Contract is entered into, or upon becoming aware of any material
default by any Person under a Material Contract, a written statement describing
such event with copies of such amendments or new Material Contracts and, with
respect to any such terminations or material defaults, an explanation of any
actions being taken with respect thereto;
(c) 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 or affecting, the Borrower equal to or greater than $1,000,000,
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; and
(d) promptly, such additional financial and other information as
any Lender may from time to time reasonably request.
5.2 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 (other
than Indebtedness), except where 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 Borrower or where the failure to do so individually or in the aggregate
would not reasonably be expected to result in a Material Adverse Effect.
5.3 Conduct of Business and Maintenance of Existence, etc. (i)
Preserve, renew and keep in full force and effect its limited liability company
existence and in each case remain a Wholly Owned Subsidiary of WRL, and (ii)
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 6.3 and
except, in the case of subsection (ii) 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.
5.4 Maintenance of Property; Leases; Insurance; Taxes.
(a) Keep all 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 the Phase
II Land and the Phase II Additions, 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 business of the Borrower
or have a material adverse effect on the Phase II Land.
(c) At all times maintain in full force and effect the insurance
policies and programs listed on Schedule 5.4(c), which policies and programs
may be modified from time to time subject to the prior approval of the
Administrative Agent which approval shall not be unreasonably withheld, if (i)
the insurance policies and programs listed on Schedule 5.4(c) are not then
available on commercially reasonable terms and (ii) the resulting coverage is,
at the time of the modification, customary for companies engaged in the same or
similar business, which are similarly situated, and which have obtained or are
then obtaining insurance coverage under similar conditions (including leverage
structure) as those then currently applicable to the Borrower. In the event
that, in accordance with the preceding sentence, the Borrower is, at any time
or from time to time, permitted to deviate from the insurance policies and
programs described in Schedule 5.4(c) and, thereafter, any such requirement set
forth in Schedule 5.4(c) becomes available on commercially reasonable terms,
the Borrower shall promptly procure coverage satisfying such requirement.
(d) Deliver to the Administrative Agent on behalf of the Secured
Parties, (i) upon request of any Secured Party from time to time, full
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 the Borrower, unless
such insurance is replaced prior to the cancellation or non-renewal thereof in
accordance with Schedule 5.4(c), and (iv) promptly after such information is
available to the Borrower, full information as to any claim for an amount in
excess of $500,000 with respect to any property and casualty insurance policy
maintained by the Borrower.
(e) Preserve and protect the Lien status of the Security Documents
and, if any Lien (other than Liens permitted under Section 6.2) is asserted
against the Phase II Land, the Phase II Additions or any other Collateral,
promptly give the Administrative Agent a detailed written notice of such Lien
and pay the underlying claim in full or take such other action so as to cause
it to be released or bonded over in a manner reasonably satisfactory to the
Administrative Agent.
(f) The Borrower shall timely file, or caused to be filed, all tax
and informational returns that are required to have been filed by it in any
jurisdiction. The Borrower shall pay all taxes shown to be due and payable on
such returns and all other 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).
5.5 Inspection of Property; Books and Records; Discussions. (a)
Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of
all dealings and transactions in relation to its business and activities and
(b) permit representatives of any Lender, coordinated through the
Administrative Agent, to visit and inspect any of its properties and examine
and, 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 to discuss the business, operations, properties
and financial and other condition of the Borrower with officers of the
Borrower.
5.6 Notices. Promptly give notice to the Administrative Agent and
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default (or alleged default) under
any Contractual Obligation of the Borrower or (ii) litigation, investigation or
proceeding which may exist at any time between the Borrower and any
Governmental Authority, that in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have a Material
Adverse Effect;
(c) upon any officer of the Borrower obtaining knowledge thereof,
the institution of any action, suit, proceeding (whether administrative,
judicial or otherwise), governmental investigation or arbitration against or
affecting the Borrower, or any of its Property (collectively, "Proceedings")
not previously disclosed in writing by the Borrower to the Lenders that, in any
case (A) if adversely determined, has a reasonable possibility of giving rise
to a Material Adverse Effect or (B) 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, in each case together with such other information as may be
reasonably available to the Borrower to enable Lenders and their counsel to
evaluate such matters;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know 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 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
(e) any development or event that has had or could reasonably be
expected to have a Material Adverse Effect;
Each notice pursuant to 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 Borrower proposes to take with respect thereto.
5.7 Environmental Laws; Permits.
(a) Except to the extent failure to do so could not (individually
or in the aggregate) reasonably be expected to result in a Material Adverse
Effect, comply in all respects with, and use best efforts to ensure compliance
in all respects by all tenants and subtenants, if any, with, all applicable
Environmental Laws and Environmental Permits, and obtain, maintain and comply
in all respects with, and use best efforts to ensure that all tenants and
subtenants obtain, maintain and comply in all respects with, any and all
licenses, approvals, notifications, registrations or Permits required by
applicable Environmental Laws.
(b) Except to the extent failure to do so could not (individually
or in the aggregate) reasonably be expected to result in a Material Adverse
Effect, conduct and complete all investigations, studies, sampling and testing,
and all remedial, removal and other actions required under Environmental Laws
and promptly comply in all respects with all lawful orders and directives of
all Governmental Authorities regarding Environmental Laws related to the Phase
II Land or the Phase II Additions or any other Collateral.
(c) The Administrative Agent may, in its reasonable discretion, (i)
retain, at the Borrower's expense, an independent professional consultant to
review any environmental audits, investigations, analyses and reports relating
to Hazardous Substances prepared by or for the Borrower and (ii) conduct its
own investigation of the Phase II Land or the Phase II Additions; provided
however, that, unless a Default or an Event of Default shall exist, the
Administrative Agent may conduct such a review and/or investigation once during
the term of the Agreement. For purposes of conducting such a review and/or
investigation, the Administrative Agent and its agents, employees, consultants
and contractors shall have the right to enter into or onto the Phase II Land
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 the Borrower and the Administrative Agent, during
normal business hours and shall be conducted so as not to unreasonably
interfere with the ongoing operations at the Phase II Land or to cause any
damage or loss to any property at the Phase II Land. 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. The Administrative Agent agrees that any
such investigation shall be conducted by an environmental consulting firm
qualified and licensed by the State of Nevada.
(d) Deliver to the Administrative Agent (i) as soon as practicable
following receipt thereof, copies in the Borrower's possession or control of
all environmental audits, investigations, analyses and reports of any kind or
character, whether prepared by personnel of the Borrower or by independent
consultants, Governmental Authorities or any other Persons, with respect to
Environmental Matters at the Phase II Land 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 the
Borrower that could reasonably be expected, individually or in the aggregate,
to result in a Material Adverse Effect, or (2) any Environmental Claims against
the Borrower 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 the Borrower, 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 the Borrower 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
the Borrower that could reasonably be expected to (1) expose the Borrower 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 the Borrower to maintain in full force and effect all material
Permits required under any Environmental Laws for its operations and (B) any
proposed action to be taken by the Borrower to modify current operations in a
manner that could reasonably be expected to subject it 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 the
Borrower on terms and conditions that are materially burdensome to the
Borrower, 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 3.12(c) through (e), and (vii)
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 5.7(d).
5.8 Use of Proceeds.
(a) Use the proceeds of the Loans only for the purposes specified
in Section 3.11. Without limiting the generality of the foregoing, Borrower
shall deposit the portion of the proceeds allocated to the Phase II Additions
into the Phase II Proceeds Account and shall use such proceeds solely to
promptly and diligently construct the Phase II Additions and to pay other costs
and expenses directly related to the ownership of the Phase II Land (such as
real property taxes).
(b) Apply all Net Cash Proceeds and Loss Proceeds received by it in
accordance with Sections 2.6 and 2.12.
5.9 Compliance with Laws, Material Contracts, 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 material respects with its
respective obligations and enforce all of its respective rights under all
Material Contracts except, in the case of Material Contracts other than
Material Affiliated Contracts, 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.
5.10 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 Administrative Agent and the Lenders
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 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 for such governmental consent,
approval, recording, qualification or authorization. In the event that,
notwithstanding the covenants contained in Article 6, a Lien not otherwise
permitted under this Agreement shall encumber the Phase II Land or other item
of Collateral or any portion thereof, the Borrower shall promptly discharge or
cause to be discharged by payment to the lien 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 Phase II Land 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 5.10 (and compliance
therewith) shall not be deemed to constitute a waiver of any of the provisions
of Article 6. The Borrower shall fully preserve the Lien and the priority of
the Deed of Trust and the other Security Documents without cost or expense to
the Administrative Agent or the Lenders. If the Borrower 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 Borrower
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 5.10 (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 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain
in effect or any Loan or other amount is owing to any Lender, the Arranger or
the Administrative Agent hereunder or under any other Loan Document, the
Borrower shall not:
6.1 Limitation on Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness of the Borrower created under any Loan Document;
and
(b) Indebtedness of the Borrower; provided that the aggregate
principal amount for all Indebtedness at any one time outstanding shall not
exceed $10,000,000.00.
6.2 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 not yet due 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 Borrower in conformity with
GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
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 proceedings (such contest
proceedings conclusively operating to stay the sale of any portion of the
Collateral on account of such Lien); provided that (i) adequate reserves with
respect thereto are deposited into a special, segregated account pledged by the
Borrower to the Administrative Agent for the benefit of the Secured Parties
pursuant to a control agreement in form and substance satisfactory to the
Administrative Agent or (ii) the Borrower has obtained and provided to the
Administrative Agent from the Title Insurance Company bonds or endorsements to
the Title Policy insuring the lien free status of the Collateral;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits by or on behalf of the Borrower to secure the
performance of bids, trade contracts (other than for borrowed money), leases,
statutory obligations, appeal bonds and other obligations of a like nature
incurred in the ordinary course of business.
(e) easements, rights-of-way, restrictions, encroachments and other
similar encumbrances and other minor defects and irregularities in title, in
each case incurred in the ordinary course of business that, in the aggregate,
are not substantial in amount and which do not in any case materially detract
from the value of the Property subject thereto;
(f) Liens created pursuant to the Security Documents;
(g) leases and subleases permitted under Section 6.4(c) and any
leasehold mortgage in favor of any party financing the lessee under any lease
or sublease permitted under Section 6.4(c); provided, that (a) the Borrower is
not 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 Deed of Trust;
(h) any attachment or judgment Lien not constituting an Event of
Default under Section 7.1(h);
(i) Permitted Encumbrances;
(j) Liens arising from the filing of UCC financing statements
relating solely to leases permitted by this Agreement;
(k) 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; and
(l) any zoning or similar law or right reserved to or vested in any
Governmental Authority to control or regulate the use of the Phase II Land.
6.3 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.
6.4 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 in the ordinary course of
business of obsolete or worn out Property or Property no longer useful in the
business of the Borrower; provided, that either (i) such Disposition could not
reasonably be expected to materially adversely affect the Phase II Land, the
Phase II Additions or any of the other Collateral or (ii) with respect to
Property Disposed of by reason of its obsolescence or worn out condition, prior
to or promptly following such Disposition any such Property shall be replaced
with other Property of substantially equal or greater utility and similar use
and either (x) a value at least substantially equal to that of the replaced
Property when first acquired or (y) substantially equal or greater quality and,
if applicable, prestige and caliber as the replaced Property when first
acquired and free from any Lien of any other Person (subject to Permitted
Liens) and the Borrower shall promptly subject such replacement property to the
Lien of the Security Documents in favor of the Lenders of at least the same
priority as the Property so replaced;
(b) the Disposition of cash or Cash Equivalents (in each case in
transactions otherwise permitted hereunder), inventory (in the ordinary course
of business) and receivables (in connection with the collection thereof and
otherwise as customary in business of the type conducted by the Borrower);
(c) subject to the last paragraph of this Section 6.4, the Borrower
may enter into any leases with respect to any space on or within the Phase II
Land;
(d) the Borrower may license trademarks and trade names in the
ordinary course of business;
(e) the incurrence of Liens permitted under Section 6.2; provided,
that any leases (whether or not constituting Permitted Liens) shall be
permitted only to the extent provided in subsection (c) above and the last
paragraph of this Section 6.4;
(f) the Borrower may terminate the driving range lease, the office
building lease, the parking facility lease and/or the art gallery lease
described in clauses (a), (b), (c) and (d) of definition of "Affiliate Lease
and Easement Agreements" and that certain easement granted by the Chamber of
Commerce recorded on August 23, 2002 in Book 20020823 as Document No. 1700, in
the Official Records of Clark County; and
(g) any condemnation or other eminent domain proceeding by any
Governmental Authority; provided, that the requirements of Section 2.6(b) are
complied with in connection therewith.
Notwithstanding the foregoing provisions of this Section 6.4,
subsection (c) above shall be subject to the additional provisos that: (a) no
Default or Event of Default shall exist and be continuing at the time of such
transaction, lease or sublease or would occur after 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,
impair or detract from the value of the Phase II Land or the operation of the
business of the Borrower or the Phase II Additions, (c) such transaction, lease
or sublease is at a fair market rent or value (in light of other similar or
comparable prevailing commercial transactions), except for the leases between
the Borrower and WLV in effect on the Closing Date, and contains such other
terms such that the lease, taken as a whole, is commercially reasonable and
fair to the Borrower in light of prevailing or comparable transactions in other
casinos, hotels, hotel attractions, shopping venues or similarly situated
buildings, as applicable, (d) no gaming, hotel or casino operations may be
conducted on any space that is subject to such transaction, lease or sublease
during the term of this Agreement, (e) no lease or sublease may provide that
the Borrower may subordinate its fee, condominium or leasehold interest to any
lessee or any party financing any lessee, and (f) such lease or sublease is
expressly subordinated to the Secured Parties' interests under the Deed of
Trust.
6.5 Limitation on Optional Payments and Modifications of Governing
Documents.
(a) Make or offer to make any optional or voluntary payment,
prepayment, repurchase or redemption of, or otherwise voluntarily or optionally
defease, any Indebtedness, or segregate funds for any such payment, prepayment,
repurchase, redemption or defeasance, other than the prepayment of Indebtedness
incurred hereunder or under Section 6.1(b); (b) amend or modify, or permit the
amendment or modification of its Governing Documents in any manner materially
adverse to the Lenders or (c) amend, modify or otherwise change the provisions
of Article VII or Section 10.2 of its operating agreement or any comparable
provisions contained in its other charter documents, as in effect on the
Closing Date, in its operating agreement or other applicable Governing
Documents.
6.6 Limitation on Transactions with Affiliates(a) . 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 any
Material Affiliated Contract entered into on or prior to the Closing Date and
disclosed to the Administrative Agent in writing) unless such transaction is on
terms that are not less favorable to the Borrower than those that might be
obtained at the time in a comparable arm's length transaction with Persons who
are not Affiliates of the Borrower and, with respect to transactions involving
an amount in excess of $2,000,000, the Borrower has obtained the prior written
consent of the Administrative Agent.
6.7 Limitation on Zoning and Contract Changes and Compliance.
Initiate, consent to or acquiesce to (a) any zoning downgrade of the Phase II
Land 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
the Phase II Land, (b) use or permit the use of the Phase II Land 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 likely
to materially and adversely affect the occupancy, use or operation of the Phase
II Land.
6.8 No Joint Assessment; Separate Lots. Suffer, permit or initiate
the joint assessment of the Phase II Land with any other real property
constituting a separate tax lot.
6.9 Final Plans. Construct or permit to be constructed, or make,
modify or destroy any improvements on the Phase II Land except as contemplated
in, and in substantial conformance with, the Plans and Specifications. Without
the prior written consent of the Administrative Agent (not to be unreasonably
withheld or delayed), the Borrower shall not modify the Plans and
Specifications in any material respect unless after giving effect to such
amendment, the Plans and Specifications are consistent with the requirements of
Exhibit C-2.
6.10 Limitation on Negative Pledge Clauses. Enter into or suffer to
exist or become effective any agreement that prohibits or limits the ability of
the Borrower to create, incur, assume or suffer to exist any Lien as security
for the Obligations (or any indebtedness intended to repay, replace or
refinance, in whole or in part, the indebtedness under this Agreement) 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 Loan Documents and
(b) as required by applicable law or any applicable rule or order of any Nevada
Gaming Authority.
6.11 Restrictions on Changes to Permits and Material Contracts.
(a) Agree to any amendment to, assignment or termination of, or
waive any of its rights under, any Material Contract or enter into any new
Material Contract, without in each case obtaining (i) the prior written consent
of the Administrative Agent, which consent shall not be unreasonably withheld
or delayed and (ii) the prior written consent of the Required Lenders if in any
such case such amendment, assignment, termination or waiver or new Material
Contract 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) Agree to any amendment to, assignment or termination of or
waive any of its rights under the Affiliate Lease and Easement Agreements,
without obtaining the prior written consent of the Administrative Agent, which
consent shall not be unreasonably withheld or delayed; provided, however, that
the Borrower shall be permitted to terminate the driving range lease, office
building lease, the parking facility lease and/or the art gallery lease
described in clause (a), (b), (c) and (d) of the definition of "Affiliate Lease
and Easement Agreements" without obtaining the prior written consent of the
Administrative Agent.
(c) Agree to any amendment to, assignment or termination of, or
waive any of its rights under, any Permit or enter into any new Permit, without
in each case obtaining the prior written consent of the Required Lenders if in
any such case such amendment, assignment, termination or waiver or new Permit
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).
6.12 Limitations on Restricted Payments. Declare or pay any
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 the Borrower, 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 the Borrower, or enter into any derivatives or other transaction
with any financial institution, commodities or stock exchange or clearinghouse
obligating the Borrower to make payments to such financial institution,
commodities or stock exchange or clearinghouse as a result of any change in
market value of any such Capital Stock, except for (a) distributions to the
direct or indirect owners of the Borrower with respect to any period during
which the Borrower is a Pass Through Entity, such distributions in an aggregate
amount not to exceed such owners' Tax Amounts for such period, and (b) the
distributions on the Closing Date described in Section 3.11(a).
As used in this paragraph:
(i) "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 WRL is the common parent.
(ii) "Pass Through Entity" means any of (1) a grantor trust
for 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;
(iii) "Presumed Tax Liability" means for any Person that is
not a Pass Through Entity for any period, an amount equal to the
product of (x) 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 the
Borrower that (1) are, or were previously, deductible by such Person
and (2) have not previously reduced Taxable Income), and (y) the
Presumed Tax Rate;
(iv) "Presumed Tax Rate" means 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 the Borrower). 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;
(v) "Tax Amount" means, with respect to any period, (x) in the
case of any direct or indirect member of the Borrower that is a Pass
Through Entity, the Presumed Tax Liability of such direct or indirect
member, and (y) with respect to any direct or indirect member of the
Borrower that are Consolidated Members, the aggregate federal income
tax liability such Persons 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; and
(v) "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 the Borrower 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.
SECTION 7. 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 interest on any Loan or any other amount payable hereunder or under
any other Loan Document within five days after any such interest or other
amount under this clause (ii) becomes due in accordance with the terms hereof;
or
(b) Any representation or warranty made or deemed made by the
Borrower 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; or
(c) (i) the Borrower shall default in the observance or performance
of any agreement contained in Section 5.3(i), Section 5.6(a), Section 5.8 or
Section 6 hereof, (ii) an "Event of Default" under and as defined in the Deed
of Trust shall have occurred and be continuing, (iii) a Wynn Las Vegas Credit
Agreement Event of Default shall have occurred and be continuing, (iv) the
Borrower shall fail to at all times maintain in full force and effect the
insurance policies and programs listed on Schedule 5.4(c) (except for
automobile, workers compensation, pollution liability and design errors and
omissions insurance) or (v) the Borrower shall fail 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 Schedule 5.4(c) where, in the case of the
failures described in this clause (v), such default shall not have been
remedied within thirty (30) days after the earlier of (x) the Borrower becoming
aware of such failure or (y) notice of such failure from the Administrative
Agent or any Lender to the Borrower; or
(d) the Borrower 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 becoming aware of such
default or (ii) receipt by the Borrower of notice from the Administrative Agent
or any Lender of such default; or
(e) The Borrower shall (i) default in making any payment of any
principal of any Indebtedness (including, without limitation, any Guarantee
Obligation, but excluding the Loans) on the scheduled due date with respect
thereto; or (ii) default in making any payment of any interest on any such
Indebtedness beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created; or (iii) 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 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), (ii) or (iii)
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), (ii) and (iii) of this subsection (e) shall have
occurred and be continuing with respect to Indebtedness the outstanding
principal amount of which exceeds in the aggregate $2,000,000; or
(f) (i) The Borrower 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 the Borrower shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Borrower 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 the Borrower 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)
the Borrower 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) the Borrower shall generally not, or shall be
unable to, 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 the Borrower 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, in the reasonable opinion of the Required Lenders, 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) the Borrower
or any Commonly Controlled Entity shall, or in the reasonable opinion of the
Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan
or (vi) the Borrower, or any of its 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 the
Borrower involving a whole a liability (not paid or fully covered by insurance
as to which the relevant insurance company has acknowledged coverage) of
$2,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 45 days from the
entry thereof; or
(i) Any of the Security Documents shall cease, for any reason
(other than pursuant to the terms thereof), to be in full force and effect, or
the Borrower or any Affiliate of the Borrower 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 perfected,
enforceable and of the same effect and priority purported to be created
thereby; 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 Affiliate
of the Borrower or any other Person shall breach or default under any term,
condition, provision, covenant, representation or warranty contained in any
Material Contract (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 Material Contract (other than any Material
Affiliated Contract) 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 becoming aware of such occurrence or (ii) receipt by the
Borrower of notice from the Administrative Agent or any Lender of such
occurrence; or
(k) a Change of Control shall occur; or
(l) The Borrower 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
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (f) above with respect to the Borrower, automatically the
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the other
Loan Documents shall immediately become due and payable, and (B) if such event
is any other Event of Default, the following actions may be taken: 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 amounts owing under this Agreement and the other Loan Documents 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, including, without
limitation, the Deed of Trust, or otherwise available under applicable law, in
equity or otherwise, including, without limitation, the right to (I) enter into
possession of the Phase II Land and perform any and all work and labor necessary
to complete the Phase II Land or to operate and maintain the Phase II Land, and
all sums expended by the Administrative Agent or any other Secured Party in so
doing, together with interest on such total amount at the highest default rate
provided hereunder, shall be Obligations hereunder, shall be repaid by the
Borrower to the Administrative Agent or such Secured Party upon demand and shall
be secured by the Loan Documents, notwithstanding that such expenditures may,
together with amounts advanced under this Agreement, exceed the total amount of
the Commitments and (II) set off and apply all monies of the Borrower on deposit
with the Administrative Agent (including the Accounts) or with any Lender to the
satisfaction of the Obligations. Notwithstanding anything to the contrary
contained in this Agreement, in the event the consent of the Lenders (whether
the Required Lenders, or otherwise) is required in connection with the exercise
of remedies pursuant to this Section 7, for purposes of determining the required
lender consent pursuant to the applicable definitions thereto (whether the
"Required Lenders", or otherwise), the Commitments of the Lenders shall be
deemed terminated.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative 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, the
Administrative Agent shall not 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 the Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent 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. The Administrative Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither the Arranger or the
Administrative Agent nor any of their respective officers, directors, partners,
employees, agents, attorneys and other advisors, attorneys-in-fact or
affiliates shall be (i) liable 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 Arranger or the Administrative Agent 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
Arranger nor the Administrative Agent 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.
8.4 Reliance by Administrative Agent. The Administrative Agent
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
Borrower), independent accountants and other experts selected by such agent.
The Administrative Agent 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. The
Administrative Agent 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 9.1 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. The Administrative Agent 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 9.1 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.
8.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless it 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 Required 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.
8.6 Non-Reliance on Administrative Agent, Arranger and Other
Lenders. Each Lender expressly acknowledges that neither the Arranger, the
Administrative Agent 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
the Arranger or the Administrative Agent hereinafter taken, including any
review of the affairs of the Borrower or any other Person, shall be deemed to
constitute any representation or warranty by the Arranger or the Administrative
Agent to any Lender. Each Lender represents to the Arranger and the
Administrative Agent that it has, independently and without reliance upon the
Arranger or the Administrative Agent 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 Borrower and its
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Arranger or the Administrative Agent 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 Borrower and its affiliates. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, neither the Arranger nor the
Administrative Agent 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 the Borrower or any other Person that may come into the
possession of the Arranger or the Administrative Agent or any of their
respective officers, directors, employees, agents, attorneys and other
advisors, partners, attorneys-in-fact or affiliates.
8.7 Indemnification. The Lenders agree to indemnify each of the
Arranger and the Administrative Agent in its capacity as such (to the extent
not reimbursed by the Borrower and without limiting the 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 (or, if indemnification is sought after the date upon which 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 the Arranger or the
Administrative Agent 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 the Arranger or the Administrative
Agent under or in connection with any of the foregoing; 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 the Arranger's or the Administrative Agent's gross negligence or willful
misconduct in breach of a duty owed to such Lender. The agreements in this
Section 8.7 shall survive the payment of the Loans and all other amounts
payable hereunder.
8.8 The Arranger and the Administrative Agent in Their Individual
Capacities. Each of the Arranger and the Administrative Agent and their
respective affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower as though the Arranger was not
the Arranger and the Administrative Agent was not the Administrative Agent.
With respect to any Loans made or renewed by it, the Arranger and the
Administrative Agent 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 the Arranger or the Administrative Agent, as the case may be, and
the terms "Lender" and "Lenders" shall include the Arranger and the
Administrative Agent in their respective individual capacities.
8.9 Successor Agents. The Administrative Agent may resign as
Administrative Agent upon ten (10) 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 or if the Administrative
Agent is subject to a Disqualification Event, 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 7(a) or Section
7(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. If no successor
agent has accepted appointment as Administrative Agent by the date that is ten
(10) days following a retiring Administrative Agent's notice of resignation or
the Borrower's notice of a Disqualification Event, the retiring Administrative
Agent's resignation or disqualified Administrative Agent's removal 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 8 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.
8.10 Authorization to Release Liens. The Administrative Agent is
hereby irrevocably authorized by each of the Lenders to release any Lien
covering any Property of the Borrower 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 9.1.
8.11 The Arranger. The Arranger, in its capacity as such, shall
have no duties or responsibilities, and shall incur no liability, under this
Agreement and the other Loan Documents.
8.12 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 2.14(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 Section 2.14(f) and this Section 8.12.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers.
(a) Neither this Agreement nor any other Loan Document, nor any
terms hereof or thereof may be amended, supplemented or modified except in
accordance with the provisions of this Section 9.1. The Required Lenders and
each other Person party to the relevant Loan Document may, or (with the written
consent of the Required Lenders) the Administrative Agent and each other Person
party to the relevant Loan Document may, from time to time, (x) enter into
written amendments, supplements or modifications hereto and to the other Loan
Documents (including amendments and restatements hereof or thereof) for the
purpose of adding any provisions to this Agreement or the other Loan Documents
or changing in any manner the rights of the Lenders or of the other Persons
hereunder or thereunder or (y) waive, on such terms and conditions as may be
specified in the instrument of waiver, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and
its consequences. Notwithstanding the foregoing, 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, extend the scheduled
date of any amortization payment in respect of any 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 thereof,
or increase the amount or extend the expiration date of any Commitment of any
Lender, 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 required pursuant to the second sentence of
this Section 9.1); (ii) amend, modify or waive any provision of this Section or
reduce any percentage specified in the definition of Required Lenders, or,
Applicable Lenders, consent to the assignment or transfer by any Person (other
than a Lender) of any of its rights and obligations under this Agreement and
the other Loan Documents, release all or substantially all of the Collateral,
in each case without the consent of all Lenders (other than Defaulting
Lenders); (iii) amend, modify or waive any provision of Section 8 without the
consent of the Arranger or the Administrative Agent who is directly affected
thereby (in addition to the consent of the Required Lenders required pursuant
to the second sentence of this Section 9.1); and (iv) subject to clause (ii)
above, amend, modify or waive any condition, provision or requirement set forth
in Section 6.4 or release any Collateral not permitted to be Disposed of
pursuant to Section 6.4 without, in each case, the consent of the Required
Lenders. Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the Lenders and shall be binding upon the
Borrower, the Lenders, the Administrative Agent, the Arranger and all future
holders of the Loans. In the case of any waiver, the Borrower, the Lenders, the
Administrative Agent and the Arranger shall be restored to their former
position and rights hereunder and under the other Loan Documents, and any
Default or Event of Default waived shall be deemed to be cured 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; 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.
(b) Notwithstanding anything to the contrary in this Section 9.1,
the parties to the Fee Letter may (i) enter into written amendments,
supplements or modifications to the Fee Letter (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 (ii)
waive, on such terms and conditions as may be specified in the instrument of
waiver, (1) any of the requirements of the 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 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.
9.2 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 Administrative
Agent and the Arranger, as follows and (b) in the case of the Lenders, as set
forth on Schedule 1 hereto, 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: Bora Bora, LLC
3131 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: Legal Department
Telecopy: (702)770-2111
Telephone: (702)770-1020
with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue, 34th Floor
Los Angeles, California 90071
Attention: David Reamer, Esq.
Telecopy: (213) 687-5600
Telephone: (213) 687-5052
The Administrative Agent: Deutsche Bank Trust Company Americas
200 Crescent Court
Suite 550
Dallas, Texas 75201
Attention: Gerald K. Dupont
Telecopy: (214) 740-7910
Telephone: (214) 740-7913
with a copy to: Latham & Watkins LLP
600 West Broadway, Suite 1800
San Diego, California 92101
Attention: Sony Ben-Moshe, Esq.
Telecopy: (619) 696-7419
Telephone: (619) 236-1234
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Arranger, the Administrative Agent 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.
9.4 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.
9.5 Payment of Expenses; Indemnification. The Borrower agrees (a)
to pay or reimburse the Arranger and the Administrative Agent 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 development, 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 reasonable fees and
disbursements and other charges of the Collateral Agent and counsel to each of
the Arranger and the Administrative Agent and the charges of IntraLinks and the
fees, expenses and disbursements of consultants (including, without limitation,
any engineering, insurance or construction consultants), (b) to pay or
reimburse each Lender, the Arranger and the Administrative Agent 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 the Arranger and the Administrative
Agent and the charges of IntraLinks, (c) to pay, indemnify, and hold each
Lender, the Arranger and the Administrative Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any 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, the Arranger, the Administrative Agent, their respective
affiliates, and their respective officers, directors, partners, trustees,
employees, affiliates, shareholders, attorneys and other 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, suits, costs, expenses or disbursements 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,
the violation of, noncompliance with or liability under, any Environmental Law
applicable to the operations of the Borrower or any of its 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 fees 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 and proximately from the gross negligence or willful
misconduct of such Indemnitee in breach of a duty owed to the Borrower. Without
limiting the foregoing, and to the extent permitted by applicable law, the
Borrower agrees not to assert and hereby waives all rights for contribution or
any other rights of recovery with respect to all claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of whatever kind
or nature, under or related to Environmental Laws, that any of them might have
by statute or otherwise against any Indemnitee. All amounts due under this
Section shall be payable not later than five days after written demand
therefor. Statements payable by the Borrower pursuant to this Section shall be
submitted to the Borrower in accordance with Section 9.2, 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 all other amounts payable hereunder.
9.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit
of the Borrower, the Lenders, the Arranger, the Administrative Agent, all
future holders of the Loans 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.
(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 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 Arranger and the Administrative Agent 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 the Borrower 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 9.7(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
2.13, 2.14 and 2.15 with respect to its participation in the Loans outstanding
from time to time as if it was a Lender; provided, that, in the case of Section
2.14, such Participant shall have complied with the requirements of said
Section and provided, further, that no Participant shall be entitled to receive
any greater amount pursuant to any such Section 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 (which
consent 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 D hereto (an "Assignment and Acceptance"), executed by such Assignee
and such Assignor (and, where the consent of the Borrower or the Administrative
Agent is required pursuant to the foregoing provisions, by the Borrower or the
Administrative Agent, as applicable) 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 or other than in the event of a Disqualification
Event pursuant to Section 9.19) shall be in an aggregate principal amount of
less than $1,000,000, 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). 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 Loan 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 9.2 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 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 9.6(c), by each such other Person) together with
payment 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 Note of the
assigning Lender) a new Note to such Assignee or its registered assigns in an
amount equal to the Loans assumed or acquired by it pursuant to such Assignment
and Acceptance and, if the Assignor has retained any Loans, upon request, a new
Note to the Assignor or its registered assigns in an amount equal to the Loans
retained by it hereunder. Such new Note or Notes shall be dated the Closing
Date and shall otherwise 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.
9.7 Adjustments; Set-off.
(a) 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
7(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, 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.
9.8 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.
9.9 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.
9.10 Integration. Other than the promises, undertakings,
representations or warranties set forth in the Fee Letter, this Agreement and
the other Loan Documents represent the agreement of the Borrower, the Arranger,
the Administrative Agent and the Lenders with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties
by the Arranger, the Administrative Agent or any Lender relative to the subject
matter hereof not expressly set forth or referred to herein or in the other
Loan Documents.
9.11 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 SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW.
9.12 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) 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 9.2 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 any special, exemplary, punitive or consequential damages.
9.13 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 the Arranger, the Administrative Agent nor any Lender
has any fiduciary relationship with or duty to the Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents, and the
relationship between the Arranger, the Administrative Agent and the Lenders, on
one hand, and the Borrower, 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 Arranger, the Administrative Agent and the Lenders or among the
Borrower and the Lenders.
9.14 Confidentiality. Subject to Section 9.18, each of the
Arranger, the Administrative Agent and the Lenders agrees to keep confidential
all non-public information provided to it by the Borrower pursuant to this
Agreement that is designated by the Borrower as confidential; provided, that
nothing herein shall prevent the Arranger, the Administrative Agent, or any
Lender from disclosing any such information (a) to the Arranger, the
Administrative Agent, 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, (c) to any of its or
its Affiliates' employees, directors, agents, auditors, regulators, attorneys,
accountants and other professional advisors, (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), (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
requested or 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 9.14, (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.
9.15 Release of Collateral.
(a) 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 (without notice to or vote or consent of any Lender) 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 shall have delivered to the Administrative Agent, at
least five Business Days prior to the date of the proposed release, 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 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.
(b) Notwithstanding anything to the contrary contained herein or
any other Loan Document, when all Obligations have been paid in full and all
Commitments have terminated or expired, upon request of the Borrower, the
Administrative Agent shall (without notice to or vote or consent of any
Lender), at Borrower's expense, take such actions as shall be required to
release the security interest of the Loan Documents in all Collateral
(including closing the Accounts and releasing any amounts on deposit therein to
the Borrower), and to release all guarantee obligations provided for in any
Loan Document.
9.16 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.
9.17 WAIVERS OF JURY TRIAL. THE BORROWER, THE ARRANGER, THE
ADMINISTRATIVE AGENT 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.
9.18 Gaming Authorities. The Arranger, the Administrative Agent,
and each Lender agree to cooperate with the Nevada Gaming Authorities in
connection with the administration of their regulatory jurisdiction over the
Borrower or any Affiliate of the Borrower, including, without limitation, to
the extent not inconsistent with the internal policies of such Lender, the
Arranger or the Administrative Agent 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 Arranger, the
Administrative Agent, any of the Lenders, the Borrower or the Loan Documents.
Notwithstanding any other provision of this Agreement, the Borrower expressly
authorizes the Arranger, the Administrative Agent and each Lender to cooperate
with the Nevada Gaming Authorities as described above.
9.19 Removal Upon a Disqualification Event. The Borrower shall be
entitled to remove any Lender as a party to this Agreement in the event that
such Person is the subject of a Disqualification Event. In such event, within
ten (10) days following notice from the Borrower of its intention to remove a
Lender, such Lender shall execute and deliver an Assignment and Acceptance
pursuant to Section 9.6(c) with respect to the outstanding Loans from that
Lender, in favor of one or more Assignees that is not an Affiliate or an
Affiliated Fund of such Lender, which Assignee(s) shall be designated by the
Borrower with the Administrative Agent's consent (not to be unreasonably
withheld or delayed) and acceptable to such Lender of an amount equal to the
then unpaid principal amount of the Loans from such Lender, plus any accrued
and unpaid interest, fees and costs payable under this Agreement through the
date of the Assignment and Acceptance. Alternatively, the Borrower may give
notice of its intention to cancel such Lender's Commitment and to release such
Lender from its obligations under this Agreement by payment to such Lender of
any amount equal to the then unpaid principal amount of the Loans from such
Lender, plus any accrued and unpaid interest, fees and costs payable under this
Agreement at that time. Any payments made by Borrower under this Section 9.19
shall be made solely to the Lender being removed and shall not be allocated pro
rata among the Lender as would otherwise be required pursuant to Sections
2.12(a), (b) and (c).
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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.
BORA BORA, LLC,
a Nevada limited liability company,
as the Borrower
By: Bora, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited,
a Nevada corporation,
its sole member
By: /s/ Marc H. Rubinstein
---------------------------
Name: Marc H. Rubinstein
Title: Senior Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
By: /s/ Linda Wang
-----------------------------
Name: Linda Wang
Title: Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Lender
By: /s/ Linda Wang
-----------------------------
Name: Linda Wang
Title: Vice President