Exhibit 10.1
EXECUTION COPY
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WYNN LAS VEGAS, LLC
and
WYNN LAS VEGAS CAPITAL CORP.,
as joint and several obligors
AND
LAS VEGAS JET, LLC
WORLD TRAVEL, LLC
WYNN GOLF, LLC
WYNN SHOW PERFORMERS, LLC
and
WYNN SUNRISE, LLC,
as guarantors
SERIES A AND SERIES B
65/8% FIRST MORTGAGE NOTES DUE 2014
_______________________
INDENTURE
Dated as of December 14, 2004
_______________________
_______________________
U.S. BANK NATIONAL ASSOCIATION
Trustee
_______________________
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)............................................ 7.10
(a)(2).......................................... 7.10
(a)(3).......................................... N.A.
(a)(4).......................................... N.A.
(a)(5).......................................... 7.10
(b)............................................. 7.10
(c)............................................. N.A.
311(a)............................................... 7.11
(b)............................................. 7.11
(c)............................................. N.A.
312(a)............................................... 2.05
(b)............................................. 14.03
(c)............................................. 14.03
313(a)............................................... 7.06
(b)............................................. 10.03
(b)(2).......................................... 7.06; 7.07
(c)............................................. 7.06; 14.02
(d)............................................. 7.06
314(a)............................................... 4.03;14.02; 14.05
(b)............................................. 10.02
(c)(1).......................................... 14.04
(c)(2).......................................... 14.04
(c)(3).......................................... N.A.
(d)............................................. 10.03, 10.04, 10.05
(e)............................................. 14.05
(f)............................................. N.A.
315(a)............................................... 7.01
(b)............................................. 7.05,14.02
(c)............................................. 7.01
(d)............................................. 7.01
(e)............................................. 6.11
316(a) (last sentence)............................... 2.09
(a)(1)(A)....................................... 6.05
(a)(1)(B)....................................... 6.04
(a)(2).......................................... N.A.
(b)............................................. 6.07
(c)............................................. 2.12
317(a)(1)............................................ 6.08
(a)(2).......................................... 6.09
(b)............................................. 2.04
318(a)............................................... N.A.
(b)............................................. N.A.
(c)............................................. 14.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions..................................................................................1
Section 1.02 Other Definitions...........................................................................46
Section 1.03 Incorporation by Reference of Trust Indenture Act...........................................47
Section 1.04 Rules of Construction.......................................................................48
ARTICLE 2.
THE NOTES
Section 2.01 Form and Dating.............................................................................48
Section 2.02 Execution and Authentication................................................................50
Section 2.03 Registrar and Paying Agent..................................................................50
Section 2.04 Paying Agent to Hold Money in Trust.........................................................51
Section 2.05 Holder Lists................................................................................51
Section 2.06 Transfer and Exchange.......................................................................51
Section 2.07 Replacement Notes...........................................................................65
Section 2.08 Outstanding Notes...........................................................................65
Section 2.09 Treasury Notes..............................................................................66
Section 2.10 Temporary Notes.............................................................................66
Section 2.11 Cancellation................................................................................66
Section 2.12 Defaulted Interest..........................................................................66
Section 2.13 Issuance of Additional Notes................................................................67
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee..........................................................................67
Section 3.02 Selection of Notes to Be Redeemed or Purchased..............................................68
Section 3.03 Notice of Redemption........................................................................68
Section 3.04 Effect of Notice of Redemption..............................................................69
Section 3.05 Deposit of Redemption or Purchase Price.....................................................69
Section 3.06 Notes Redeemed or Purchased in Part.........................................................69
Section 3.07 Optional Redemption.........................................................................70
Section 3.08 Mandatory Redemption........................................................................70
Section 3.09 Mandatory Disposition or Redemption Pursuant to Gaming Laws.................................70
Section 3.10 Offer to Purchase by Application of Excess Proceeds.........................................72
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes............................................................................74
Section 4.02 Maintenance of Office or Agency.............................................................74
Section 4.03 Reports.....................................................................................74
Section 4.04 Compliance Certificate......................................................................75
Section 4.05 Taxes.......................................................................................76
Section 4.06 Stay, Extension and Usury Laws..............................................................76
Section 4.07 Restricted Payments.........................................................................76
Section 4.08 Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries of Wynn Las Vegas..............................................................80
Section 4.09 Incurrence of Indebtedness and Issuance of Disqualified Stock...............................81
Section 4.10 Asset Sales.................................................................................86
Section 4.11 Transactions with Affiliates................................................................88
Section 4.12 Liens.......................................................................................89
Section 4.13 Line of Business............................................................................89
Section 4.14 Corporate and Organizational Existence......................................................90
Section 4.15 Offer to Purchase Upon Change of Control....................................................90
Section 4.16 Events of Loss..............................................................................92
Section 4.17 Designation of Restricted and Unrestricted Subsidiaries.....................................94
Section 4.18 Construction................................................................................95
Section 4.19 Limitations on Use of Proceeds..............................................................95
Section 4.20 Limitation on Status as Investment Company..................................................95
Section 4.21 Limitation on Sale and Leaseback Transactions...............................................95
Section 4.22 Limitation on Development of Golf Course Land...............................................96
Section 4.23 Restrictions on Payments of Management Fees.................................................97
Section 4.24 Limitation on Issuances and Sales of Equity Interests in
Wholly Owned Restricted Subsidiaries........................................................98
Section 4.25 Amendments to Certain Agreements............................................................98
Section 4.26 Amendments to Operating Agreements and Charter Documents....................................99
Section 4.27 Insurance...................................................................................99
Section 4.28 Additional Collateral; Formation or Acquisition of Restricted
Subsidiaries, Designation of Unrestricted Subsidiaries as
Restricted Subsidiaries or Permitted C-Corp. Conversion....................................100
Section 4.29 Additional Collateral; Acquisition of Assets or Property...................................101
Section 4.30 Further Assurances.........................................................................102
Section 4.31 Payments for Consent.......................................................................102
Section 4.32 Restrictions on Activities of Wynn Capital.................................................103
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets...................................................103
Section 5.02 Successor Corporation Substituted..........................................................104
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default..........................................................................104
Section 6.02 Acceleration...............................................................................107
Section 6.03 Other Remedies.............................................................................108
Section 6.04 Waiver of Past Defaults....................................................................108
Section 6.05 Control by Majority........................................................................108
Section 6.06 Limitation on Suits........................................................................108
Section 6.07 Rights of Holders of Notes to Receive Payment..............................................109
Section 6.08 Collection Suit by Trustee.................................................................109
Section 6.09 Trustee May File Proofs of Claim...........................................................109
Section 6.10 Priorities.................................................................................110
Section 6.11 Undertaking for Costs......................................................................110
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee..........................................................................110
Section 7.02 Rights of Trustee..........................................................................111
Section 7.03 Individual Rights of Trustee...............................................................112
Section 7.04 Trustee's Disclaimer.......................................................................112
Section 7.05 Notice of Defaults.........................................................................113
Section 7.06 Reports by Trustee to Holders of the Notes.................................................113
Section 7.07 Compensation and Indemnity.................................................................113
Section 7.08 Replacement of Trustee.....................................................................114
Section 7.09 Successor Trustee by Merger, etc...........................................................115
Section 7.10 Eligibility; Disqualification..............................................................115
Section 7.11 Preferential Collection of Claims Against Issuers..........................................115
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance...................................115
Section 8.02 Legal Defeasance and Discharge.............................................................116
Section 8.03 Covenant Defeasance........................................................................116
Section 8.04 Conditions to Legal or Covenant Defeasance.................................................117
Section 8.05 Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions......................................................118
Section 8.06 Repayment to Issuers.......................................................................119
Section 8.07 Reinstatement..............................................................................119
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes........................................................119
Section 9.02 With Consent of Holders of Notes...........................................................120
Section 9.03 Compliance with Trust Indenture Act........................................................122
Section 9.04 Revocation and Effect of Consents..........................................................122
Section 9.05 Notation on or Exchange of Notes...........................................................122
Section 9.06 Trustee to Sign Amendments, etc............................................................123
ARTICLE 10.
COLLATERAL AND SECURITY
Section 10.01 Collateral Documents.......................................................................123
Section 10.02 Recording and Opinions.....................................................................124
Section 10.03 Release of Collateral......................................................................124
Section 10.04 Certificates of the Issuers................................................................129
Section 10.05 Certificates of the Trustee................................................................129
Section 10.06 Authorization of Actions to Be Taken by the Trustee Under the
Collateral Documents.......................................................................130
Section 10.07 Authorization of Receipt of Funds by the Trustee Under the
Collateral Documents.......................................................................130
Section 10.08 Rights in the Pledged Collateral...........................................................130
Section 10.09 Termination of Security Interest...........................................................131
ARTICLE 11.
NOTE GUARANTEES
Section 11.01 Note Guarantee.............................................................................131
Section 11.02 Limitation on Guarantor Liability..........................................................132
Section 11.03 Execution and Delivery of Note Guarantee...................................................133
Section 11.04 Guarantors May Consolidate, etc., on Certain Terms.........................................133
Section 11.05 Releases Following Sale of Assets..........................................................134
Section 11.06 Release of Guarantees......................................................................135
ARTICLE 12.
satisfaction and discharge
Section 12.01 Satisfaction and Discharge.................................................................135
Section 12.02 Application of Trust Money.................................................................136
ARTICLE 13.
joint and several liability
Section 13.01 Joint and Several Liability................................................................137
ARTICLE 14.
MISCELLANEOUS
Section 14.01 Trust Indenture Act Controls...............................................................138
Section 14.02 Notices....................................................................................139
Section 14.03 Communication by Holders of Notes with Other Holders of Notes..............................140
Section 14.04 Certificate and Opinion as to Conditions Precedent.........................................140
Section 14.05 Statements Required in Certificate or Opinion..............................................140
Section 14.06 Rules by Trustee and Agents................................................................141
Section 14.07 No Personal Liability of Directors, Officers, Employees and
Equity Holders.............................................................................141
Section 14.08 Governing Law..............................................................................141
Section 14.09 No Adverse Interpretation of Other Agreements..............................................141
Section 14.10 Successors.................................................................................141
Section 14.11 Severability...............................................................................141
Section 14.12 Counterpart Originals......................................................................142
Section 14.13 Table of Contents, Headings, etc...........................................................142
EXHIBITS
Exhibit A-1 FORM OF NOTE
Exhibit A-2 FORM OF REGULATION S TEMPORARY GLOBAL NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
Exhibit G PROJECT SITE
Exhibit H LIST OF COLLATERAL DOCUMENTS
Exhibit I FORM OF DISBURSEMENT AGREEMENT
INDENTURE dated as of December 14, 2004 among Wynn Las Vegas, LLC,
a Nevada limited liability company ("Wynn Las Vegas") and Wynn Las Vegas
Capital Corp., a Nevada corporation ("Wynn Capital," and together with Wynn
Las Vegas, the "Issuers"), as joint and several obligors, and Las Vegas
Jet, LLC, a Nevada limited liability company, World Travel, LLC, a Nevada
limited liability company, Wynn Golf, LLC, a Nevada limited liability
company, Wynn Show Performers, LLC, a Nevada limited liability company and
Wynn Sunrise, LLC, a Nevada limited liability company, as guarantors (the
"Initial Guarantors") and U.S. Bank National Association, as trustee (the
"Trustee").
The Issuers, the Initial Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit
of the Holders (as defined) of the 65/8% First Mortgage Notes due 2014 (the
"Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a Global Note substantially in the form
of Exhibit A-1 hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in the
name of, the Depositary or its nominee that shall be issued in a
denomination equal to the outstanding principal amount of the Notes sold in
reliance on Rule 144A.
"Access Easement Agreement" means that certain Access Easement
Agreement, dated as of the date of this Indenture, by and between Wynn
Golf, LLC and Wynn Las Vegas, as amended, modified or otherwise
supplemented from time to time in any manner that is not in contravention
of Section 4.25 hereof.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time
such other Person is merged with or into or became a Subsidiary of
such specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person merging
with or into, or becoming a Restricted Subsidiary of, such specified
Person; and
(2) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person at the time such asset is acquired
by such specified Person.
"Additional Entertainment Facility" means a showroom or
entertainment facility adjoining the Wynn Las Vegas hotel and casino resort
on the Project Site other than the Entertainment Facility.
"Additional Notes" means Additional Notes (other than the Initial
Notes and the Exchange Notes) issued under this Indenture in accordance
with Section 2.13 hereof, as part of the same series as the Initial Notes.
Any Additional Notes shall vote on all matters as one class with the Notes
being issued on the date hereof, including, without limitation, waivers,
amendments and redemptions.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of this
definition, "control," as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the Voting Stock of a Person shall
be deemed to be control. For purposes of this definition, the terms
"controlling," "controlled by" and "under common control with" shall have
correlative meanings.
"Affiliate Agreements" means:
(1) the Management Agreement,
(2) the Water Show Entertainment Production Agreement,
(3) the Project Lease and Easement Agreements,
(4) the Art Rental and Licensing Agreement,
(5) the Wynn Design Agreement; and
(6) the Wynn IP Agreement,
in each case as amended, modified or otherwise supplemented from time to
time in any manner that is not in contravention of Sections 4.11 and 4.25
hereof.
"Agent" means any Registrar, Paying Agent or additional paying agent.
"Aircraft" means that certain 1999 Boeing 737-79U Business Jet
aircraft bearing manufacturer's serial number 29441 and United States
Federal Aviation Administration Number N88WZ, together with engines
attached thereto, owned by a trust of which World Travel, LLC is the
beneficial interest holder.
"Aircraft Assets" means (1) the Aircraft, together with the
products and proceeds thereof, and (2) the Aircraft Note.
"Aircraft Note" means that certain promissory note, dated as of
October 30, 2002, issued by World Travel, LLC in favor of Wynn Las Vegas in
an aggregate principal amount of $38.0 million.
"Allocable Overhead" means, at any time with respect to each
Qualifying Project, an amount equal to (1) the amount of reasonable
corporate or other organizational overhead expenses of, and actually
incurred by, Wynn Resorts and its Subsidiaries (other than the Issuers)
calculated in good faith on a consolidated basis, after the elimination of
intercompany transactions, in accordance with GAAP, divided by (2) the
number of Qualifying Projects. However, amounts allocated to any Qualifying
Project shall be prorated based on the period within such period that such
Qualifying Project was in operation or financing therefor was obtained.
With respect to any amounts payable pursuant to the Affiliate Agreements or
any agreements entered into by and among Wynn Resorts, any of its
Subsidiaries and/or any of their respective Affiliates, any payment in
respect of Allocable Overhead shall not include any fee, profit or similar
component and shall represent only the payment or reimbursement of actual
costs and expenses. The amount of Allocable Overhead payable during any
12-month period shall not exceed 2.0% of Net Revenues of Wynn Las Vegas and
its Restricted Subsidiaries for such period of four full consecutive fiscal
quarters.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary that apply to such transfer or exchange.
"Art Rental and Licensing Agreement" means the Third Amended and
Restated Art Rental and Licensing Agreement, dated as of August 6, 2004, by
and between Stephen A. Wynn and Wynn Las Vegas, as amended, modified or
otherwise supplemented from time to time in any manner that is not in
contravention of Section 4.25 hereof.
"Aruze Corp." means Aruze Corp., a Japanese public corporation.
"Aruze USA" means Aruze USA, Inc., a Nevada corporation.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any
assets; and
(2) the issuance of Equity Interests by Wynn Capital or any
of the Restricted Subsidiaries or the sale of Equity Interests in Wynn
Capital or any of the Restricted Subsidiaries.
Notwithstanding the preceding, the sale, conveyance or other
disposition of all or substantially all of the assets of Wynn Las Vegas and
its Restricted Subsidiaries, taken as a whole, shall be governed by
Sections 4.15 and 5.01 hereof and not by Section 4.10 hereof.
In addition, none of the following items shall be deemed to be an
Asset Sale (except for purposes of the definition of "Consolidated Cash
Flow") (such items, "Permitted Dispositions"):
(1) any single transaction or series of related transactions
(A) prior to the Phase I Opening Date, that involves assets having a
Fair Market Value of less than $1.0 million or (B) after the Phase I
Opening Date, that involves assets having a Fair Market Value of less
than $3.0 million;
(2) the sale, lease, conveyance or other disposition of any
assets:
(a) to Wynn Las Vegas and/or its Restricted Subsidiaries,
or
(b) by (i) any Restricted Subsidiary that is not a
Guarantor to (ii) any Restricted Subsidiary that is a Guarantor.
(3) an issuance of Equity Interests by Wynn Las Vegas or any
of the Restricted Subsidiaries to Wynn Las Vegas or any of its
Restricted Subsidiaries;
(4) the sale, lease or exchange of equipment, inventory,
accounts receivable or other assets in the ordinary course of
business;
(5) the disposition of obsolete, damaged or worn-out property
that is no longer necessary for the conduct of the business of Wynn
Las Vegas or any of the Restricted Subsidiaries;
(6) the sale or other disposition of cash or Cash
Equivalents;
(7) a Restricted Payment or Permitted Investment that is
permitted under Section 4.07 hereof;
(8) like-kind exchanges of personal property if the Fair
Market Value of the personal property transferred by Wynn Las Vegas or
any of the Restricted Subsidiaries in such exchanges does not exceed
$20.0 million in the aggregate in any calendar year;
(9) a dedication of space within the Projects as necessary
for the development of the Projects and as permitted by the Collateral
Documents;
(10) licenses of patents, trademarks and other intellectual
property rights granted by Wynn Las Vegas or any of the Restricted
Subsidiaries in the ordinary course of business and not interfering in
any material respect with the ordinary conduct of the business of such
Person;
(11) the transfer or sale or disposition of any Released
Assets or Aircraft Assets; provided that any revenues in excess of
$10.0 million (in the aggregate) generated by sales, leases or other
dispositions of any assets in connection with (i) any timeshare,
interval ownership or similar development or (ii) any condominium or
similar development with respect to the Phase III Project, shall
constitute Asset Sales and shall be disposed of in accordance with
Section 4.10;
(12) a transfer of assets between or among Wynn Las Vegas and
the Restricted Subsidiaries pursuant to any Affiliate Agreement;
(13) the granting, creation or existence of a Permitted Lien
and dispositions of assets pursuant to an exercise of remedies,
including by way of foreclosure, against the underlying assets subject
to such Permitted Liens, under circumstances not otherwise resulting
in Defaults or Events of Default, so long as the net proceeds, if any,
of any such disposition received by Wynn Las Vegas or any of its
Restricted Subsidiaries shall be treated as if they were Net Proceeds
of an Asset Sale and applied in accordance with Section 4.10 hereof;
(14) Government Transfers or Permitted Liens of the type
described in clause (12) of the definition of "Permitted Liens," so
long as the net proceeds, if any, of any such disposition received by
Wynn Las Vegas or any of the Restricted Subsidiaries in respect
thereof shall be treated as if they were Net Proceeds of an Asset Sale
and applied in accordance with Section 4.10 hereof; and
(15) transfers, leases or other dispositions of the Koval
Land or any portion of or interest in the Koval Land.
Notwithstanding the foregoing, any sale of assets which requires a
mandatory prepayment of amounts outstanding (or the mandatory reduction of
commitments thereunder) under the Credit Agreement shall constitute an
Asset Sale for purposes of this Indenture.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value of the obligation of
the lessee for net rental payments during the remaining term of the lease
included in such sale and leaseback transaction including any period for
which such lease has been extended or may, at the option of the lessor, be
extended. Such present value shall be calculated using a discount rate
equal to the rate of interest implicit in such transaction, determined in
accordance with GAAP; provided, however, that if such sale and leaseback
transaction results in a Capital Lease Obligation, the amount of
Indebtedness represented thereby shall be determined in accordance with the
definition of "Capital Lease Obligation."
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule
13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as that term is used in
Section 13(d)(3) of the Exchange Act), such "person" shall be deemed to
have beneficial ownership of all securities that such "person" has the
right to acquire by conversion or exercise of other securities, whether
such right is currently exercisable or is exercisable only after the
passage of time. The terms "Beneficially Owns" and "Beneficially Owned"
have a corresponding meaning.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors
of the corporation or any committee thereof duly authorized to act
on behalf of such board;
(2) with respect to a partnership, the board of directors
of the general partner of the partnership;
(3) with respect to a limited liability company, the
Person or Persons who are the managing member, members or managers
or any controlling committee or managing members or managers
thereof; and
(4) with respect to any other Person, the board or
committee of such Person serving a similar function.
"Budgeted Overhead Final Payment Date" means the date on which the
final payments in respect of corporate or other organizational overhead
expenses of Wynn Resorts and its Subsidiaries included in the Phase I
Project Budget are disbursed pursuant to the Disbursement Agreement. Wynn
Las Vegas shall deliver an officers' certificate to the trustee, within 30
days following a written request therefor from the Trustee or any Holder of
Notes, confirming and setting forth such date.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease that would at that time be required to be capitalized on a balance
sheet in accordance with GAAP, and the Stated Maturity thereof shall be the
date of the last payment of rent or any other amount due under such lease
prior to the first date upon which such lease may be prepaid by the lessee
without payment of a penalty.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any
and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability
company, partnership interests (whether general or limited) or
membership interests (whether general or limited); and
(4) any other interests or participation that confers on
a Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person, but
excluding from all of the foregoing any debt securities
convertible into Capital Stock, whether or not such debt
securities include any right of participation with Capital Stock.
"Cash Equivalents" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality of the United States government (provided that the
full faith and credit of the United States is pledged in support of
those securities) having maturities of not more than six months from
the date of acquisition;
(3) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition,
bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case, with any lender party to the
Credit Agreement or with any domestic commercial bank having capital
and surplus in excess of $500.0 million and a Thomson Bank Watch
Rating of "B" or better;
(4) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses (2)
and (3) above entered into with any financial institution meeting the
qualifications specified in clause (3) above;
(5) commercial paper having one of the two highest ratings
obtainable from Moody's or S&P and, in each case, maturing within six
months after the date of acquisition;
(6) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (1)
through (5) of this definition;
(7) to the extent not permitted in clauses (1) through (6) of
this definition, Permitted Securities; and
(8) to the extent not included in clauses (1) through (7) of
this definition, funds managed or offered by the Trustee that in
invest exclusively in the securities and instruments described in
clauses (1) through (7) above.
"Change of Control" means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or
other disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or substantially all
of the properties or assets of Wynn Las Vegas and its Restricted
Subsidiaries, taken as a whole, or of Wynn Las Vegas and its
Restricted Subsidiaries, taken as a whole, to any "person" (as that
term is used in Section 13(d)(3) of the Exchange Act), other than to
the Principal or a Related Party of the Principal;
(2) the adoption of a plan relating to the liquidation or
dissolution of either Issuer or any successor thereto;
(3) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that:
(a) any "person" (as defined in clause (1) above), other
than the Principal and any of his Related Parties becomes the
Beneficial Owner, directly or indirectly, of more than 50% of the
outstanding Voting Stock of Wynn Resorts, measured by voting power
rather than number of equity interests,
(b) any "person" (as defined in clause (1) above) (other
than Kazuo Okada, Aruze USA and Aruze Corp., so long as (i) the
Stockholders Agreement, as in effect on the date of this Indenture,
remains in full force and effect, (ii) a majority of the Board of
Directors of Wynn Resorts is constituted of Persons named on any slate
of directors chosen by the Principal and Aruze USA pursuant to the
Stockholders Agreement, as in effect on the date of this Indenture,
and (iii) Kazuo Okada and his Related Parties either (A) "control" (as
that term is used in Rule 405 under the Securities Act) Aruze Corp.
and Aruze USA or (B) otherwise remain the direct or indirect
Beneficial Owners of the Voting Stock of Wynn Resorts held by Aruze
Corp.) becomes the Beneficial Owner, directly or indirectly, of a
greater percentage of the outstanding Voting Stock of Wynn Resorts,
measured by voting power rather than number of equity interests, than
is at that time Beneficially Owned by the Principal and his Related
Parties as a group,
(c) prior to the earlier of (i) the Phase II Opening Date
or (ii) December 31, 2007, the Principal and his Related Parties as a
group own less than 80% of the outstanding Voting Stock of Wynn
Resorts owned by such group as of the date of this Indenture; or
(d) prior to the earlier of (i) the Phase II Opening Date
or (ii) December 31, 2007, the Principal and his Related Parties as a
group own less than 10% of the outstanding Voting Stock of Wynn
Resorts, measured by voting power rather than number of Equity
Interests;
(4) the first day before the earlier of (i) the Phase II
Opening Date or (ii) December 31, 2007, on which the Principal does
not act as either the Chairman of the Board of Directors or the Chief
Executive Officer of Wynn Resorts, other than (1) as a result of death
or disability or (2) if the Board of Directors of Wynn Resorts,
exercising their fiduciary duties in good faith, removes or fails to
re-appoint the Principal as Chairman of the Board of Directors or
Chief Executive Officer of Wynn Resorts;
(5) the first day on which a majority of the members of the
respective Boards of Directors of Wynn Resorts or Wynn Capital are not
Continuing Directors;
(6) the first day on which Wynn Resorts ceases to own,
directly or indirectly, 100% of the outstanding Equity Interests of
Wynn Las Vegas; or
(7) Wynn Resorts consolidates with, or merges with or into,
any Person or sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of its assets to any Person, or
any Person consolidates with, or merges with or into, Wynn Resorts, in
any such event pursuant to a transaction in which any of the
outstanding Voting Stock of Wynn Resorts is converted into or
exchanged for cash, securities or other property, other than any such
transaction where the Voting Stock of Wynn Resorts outstanding
immediately prior to such transaction is converted into or exchanged
for Voting Stock (other than Disqualified Stock) of the surviving or
transferee Person constituting a majority of the outstanding shares of
such Voting Stock of such surviving or transferee Person (immediately
after giving effect to such issuance).
Notwithstanding the above, a Change of Control shall not occur
solely by reason of a Permitted C-Corp. Conversion.
"Clearstream" means Clearstream Banking, S.A.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means all assets, now owned or hereafter acquired, of
either Issuer, any Guarantor, any Restricted Subsidiary or any other
Person, to the extent such assets are pledged or assigned or purport to be
pledged or assigned, or are required to be pledged or assigned under this
Indenture or the Collateral Documents to the Trustee, including the
Exclusive Note Collateral and the Primary Note Collateral, together with
the proceeds and products thereof (including, without limitation, the
proceeds of Asset Sales).
"Collateral Agent" shall have the meaning set forth in
Intercreditor Agreement.
"Collateral Documents" means:
(1) the Completion Guarantee,
(2) the Deeds of Trust,
(3) the Disbursement Agreement,
(4) the Security Agreements,
(5) the Intercreditor Agreement,
(6) the Disbursement Collateral Account Agreement,
(7) the Completion Guaranty Collateral Account Agreement;
(8) the Local Bank Collateral Account Agreement;
(9) the Control Agreements;
(10) the Management Fees Subordination Agreement, and
(11) instruments, documents, pledges or filings that create,
evidence, perfect, set forth, consent to, acknowledge or limit the
security interest of the Trustee in the Collateral,
in each case, as amended, modified or otherwise supplemented from time to
time in accordance with their respective terms and with this Indenture and
the Collateral Documents.
"Collateral Release Period" means any period of the time while the
Notes remain outstanding during which the Holders' security interest in all
of the Collateral is released in accordance with the conditions described
in Section 10.03(b) hereof.
"Completion Guarantee" means the Completion Guarantee, dated as of
the date of this Indenture, by the Completion Guarantor in favor of the
Trustee and the agent under the Credit Agreement.
"Completion Guarantee Release Date" means the date on which the
Completion Guarantee Release Conditions are satisfied.
"Completion Guarantee Release Conditions" has the meaning given
the term "Completion Guaranty Release Conditions" in the Disbursement
Agreement.
"Completion Guarantor" means Wynn Completion Guarantor, LLC, a
Nevada limited liability company.
"Completion Guaranty Collateral Account Agreement" means the
Completion Guaranty Collateral Account Agreement, dated as of the date of
this Indenture, among the Completion Guarantor, the securities intermediary
named therein and the Collateral Agent, as amended, modified or otherwise
supplemented from time to time in accordance with its terms, this Indenture
and the other Collateral Documents.
"Consolidated Cash Flow" means, with respect to any specified
Person for any period, the Consolidated Net Income of such Person for such
period plus, without duplication:
(1) an amount equal to any extraordinary loss plus any net
loss realized by such Person or any of its Restricted Subsidiaries in
connection with an Asset Sale, to the extent such losses were deducted
in computing such Consolidated Net Income; plus
(2) provision for taxes based on income or profits or the Tax
Amount of such Person and its Restricted Subsidiaries for such period,
to the extent that such provision for taxes or Tax Amount was included
in computing such Consolidated Net Income; plus
(3) consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued and
whether or not capitalized (including, without limitation,
amortization of debt issuance costs and original issue discount,
non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated
with Capital Lease Obligations, imputed interest with respect to
Attributable Debt, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers' acceptance
financings, and net of the effect of all payments made or received
pursuant to Hedging Obligations), to the extent that any such expense
was deducted in computing such Consolidated Net Income; plus
(4) depreciation, amortization (including amortization of
goodwill and other intangibles but excluding amortization of prepaid
cash expenses that were paid in a prior period), and other non-cash
expenses (excluding any such non-cash expense to the extent that it
represents an accrual of or reserve for cash expenses in any future
period or amortization of a prepaid cash expense) of such Person and
its Restricted Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted
in computing such Consolidated Net Income; plus
(5) any pre-opening expenses, to the extent such pre-opening
expenses were deducted in calculating Consolidated Net Income on a
consolidated basis; plus
(6) non-cash items reducing Consolidated Net Income for such
period, minus
(7) non-cash items increasing such Consolidated Net Income
for such period, other than the accrual of revenue in the ordinary
course of business,
in each case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on
the income or profits of, and the depreciation and amortization and other
non-cash expenses of, a Restricted Subsidiary of Wynn Las Vegas shall be
added to Consolidated Net Income to compute Consolidated Cash Flow of Wynn
Las Vegas only to the extent that a corresponding amount would be permitted
at the date of determination to be distributed to Wynn Las Vegas by such
Restricted Subsidiary without prior governmental approval that has not been
obtained, and without direct or indirect restriction pursuant to the terms
of its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to that Subsidiary
or its equity holders.
"Consolidated EBITDA" means, with respect to any specified Person
for any period, the consolidated net income of such Person and its
Subsidiaries for such period plus, without duplication and to the extent
reflected as a charge in the statement of such consolidated net income for
such period, the sum of (a) income tax expense or the Tax Amount (whether
or not paid during such period), (b) consolidated interest expense of such
Person and its Subsidiaries, amortization or write-off of debt discount and
debt issuance costs and commissions, discounts and other fees and charges
associated with Indebtedness (including, in the case of Wynn Las Vegas, the
loans and letters of credit under the Credit Agreement), (c) depreciation
and amortization expense, (d) amortization of intangibles (including, but
not limited to, goodwill) and (e) any extraordinary expenses or losses
(and, whether or not otherwise includable as separate items in the
statement of such consolidated net income for such period, non-cash losses
on sales of assets outside of the ordinary course of business and
pre-opening expenses related to (i) the initial opening of the Phase I
Project (such pre-opening expenses to be no greater than that set forth in
the Phase I Project Budget), (ii) the initial opening of the Phase II
Project (such pre-opening expenses to be no greater than that set forth in
the Phase II Project Budget) and (iii) the opening of the Entertainment
Facility (such pre-opening expenses in the aggregate to be no greater than
$5.0 million)) and minus, to the extent included in the statement of such
consolidated net income for such period, the sum of (a) interest income
(except to the extent deducted in determining consolidated interest
expense) and (b) any extraordinary income or gains (and, whether or not
otherwise includable as a separate item in the statement of such
consolidated net income for such period, gains on the sales of assets
outside of the ordinary course of business), all as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Leverage Ratio" means as at the last day of any
period of four consecutive fiscal quarters, the ratio of (a) Consolidated
Total Debt on such day to (b) Consolidated EBITDA of Wynn Las Vegas and its
Subsidiaries for such period.
"Consolidated Member" means a Person that joins (or would join
upon the consummation of a Permitted C-Corp. Conversion) in the filing of a
consolidated, combined or unitary tax return for United States federal,
state or local income or franchise tax purposes with Wynn Resorts, Limited,
which Person is Wynn Las Vegas, the Completion Guarantor, or any of their
respective Subsidiaries.
"Consolidated Net Income" means, with respect to any specified
Person for any period, the aggregate of the Net Income of such Person and
its Restricted Subsidiaries for such period, on a consolidated basis,
determined in accordance with GAAP. For purposes of determining
Consolidated Net Income:
(1) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of
dividends or distributions paid in cash to the specified Person or a
Wholly Owned Restricted Subsidiary of such Person;
(2) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that Net Income
is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its equity
holders;
(3) the Net Income (loss) of any Unrestricted Subsidiary
shall be excluded, whether or not distributed to the specified Person
or one of its Subsidiaries; and
(4) the cumulative effect of a change in accounting
principles shall be excluded.
"Consolidated Net Worth" means, with respect to any specified
Person as of any date, the sum of:
(1) the consolidated equity of the common stockholders of
such Person and its consolidated Subsidiaries as of such date; plus
(2) the respective amounts reported on such Person's balance
sheet as of such date with respect to any series of preferred stock
(other than Disqualified Stock) that by its terms is not entitled to
the payment of dividends unless such dividends may be declared and
paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received
by such Person upon issuance of such preferred equity.
"Consolidated Total Debt" means at any date, the aggregate
principal amount of all Indebtedness of Wynn Las Vegas and its Subsidiaries
at such date, determined on a consolidated basis in accordance with GAAP.
"Construction Consultant" means Inspection & Valuation
International, Inc., or any other construction consultant designated under
the Disbursement Agreement.
"Construction Contract" means the Agreement for Guaranteed Maximum
Price Construction Services for Wynn Las Vegas hotel and casino resort,
dated as of June 4, 2002, by and between Wynn Las Vegas and the General
Contractor, as amended, modified or otherwise supplemented from time to
time in any manner that is not in contravention of Section 4.25 hereof.
"Construction Contract Guarantee" means the Amended and Restated
Continuing Guarantee, dated as of October 22, 2002, by the Construction
Contract Guarantor in favor of Wynn Las Vegas, as amended, modified or
otherwise supplemented from time to time in any manner that is not in
contravention of Section 4.25 hereof.
"Construction Contract Guarantor" means Austi, Inc., a Nevada
corporation.
"Continuing Directors" means, as of any date of determination,
with respect to any Person, any member of the Board of Directors of such
Person who:
(1) was a member of such Board of Directors on the date
hereof; or
(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors
who were members of such Board at the time of such nomination or
election.
"Control Agreements" mean (1) the Control Agreement, dated as of
the date of this Indenture, among Wynn Show Performers, the securities
intermediary named therein and the Collateral Agent, (2) the Control
Agreement, dated as of the date of this Indenture, among Wynn Las Vegas,
the securities intermediary named therein and the Collateral Agent, and (3)
the Control Agreement, dated as of the date of this Indenture, among Wynn
Golf, the securities intermediary named therein and the Collateral Agent,
each as amended, modified or otherwise supplemented from time to time in
accordance with its terms, this Indenture and the other Collateral
Documents.
"Corporate Trust Office of the Trustee" means the address of the
Trustee specified in Section 14.02 hereof or such other address as to which
the Trustee may give notice to the Issuers.
"Credit Agreement" means that certain Credit Agreement, dated as
of the date of this Indenture, by and among Wynn Las Vegas, the lenders
party thereto, and Deutsche Bank Trust Company Americas, as sole
administrative agent, Deutsche Bank Securities Inc., as joint advisor,
joint book-running manager and joint lead arranger, Banc of America
Securities LLC, as joint advisor, joint-book running manager and joint lead
arranger, Bank of America, N.A. as sole syndication agent, Bear Stearns
Corporate Lending, Inc., as joint documentation agent, Bear, Stearns & Co.
Inc., a joint book-running manager and arranger, JPMorgan Chase Bank, N.A.,
as joint documentation agent, J.P. Morgan Securities Inc., as joint-book
running manager and arranger, SG Americas Securities, LLC, as arranger and
joint book-running manager, and Societe Generale, as joint book-running
manager and arranger, providing for revolving credit and term loan
borrowings, including any related notes, Guarantees, collateral documents,
instruments and agreements executed in connection therewith, and, in each
case, as amended, supplemented, restated, modified, renewed, refunded,
replaced (whether upon or after termination or otherwise) or refinanced
(whether with the same or different lenders or holders, including by means
of sales of debt securities to institutional investors) from time to time.
"Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Dealership Lease Agreement" means the Dealership Lease Agreement,
to be entered into between Wynn Las Vegas, as lessor, and PW Automotive,
LLC, as lessee, with respect to the lease of space at the Phase I Project
for the development and operation of a Ferrari and Maserati automobile
dealership, as amended, modified or otherwise supplemented from time to
time in any manner that is not in contravention of Section 4.25 hereof.
"Deeds of Trust" means the deeds of trust entered into by the
Issuers and the Guarantors, from time to time for the benefit of the
Collateral Agent, as agent for (1) the administrative agent for the lenders
under the Credit Agreement and (2) the Trustee on behalf of the Holders of
Notes in accordance with the provisions of this Indenture and the
Collateral Documents.
"Default" means any event that is, or with the passage of time or
the giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibit A-1 hereto except that such Note shall
not bear the Global Note Legend and shall not have the "Schedule of
Exchanges of Interest in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued
in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Notes, and any and all
successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this Indenture.
"Designated Officer" means, with respect to any Person, the
Chairman of the Board, the Chief Executive Officer, the President, the
Chief Operating Officer, the Chief Financial Officer, the Treasurer, any
Assistant Treasurer, the Controller, the Secretary or any Vice-President of
such Person.
"Design/Build Contract" means the Design/Build Agreement,
effective as of June 6, 2002, by and between Wynn Las Vegas and Bomel
Construction Company, Inc., as amended, modified or otherwise supplemented
from time to time in any manner that is not in contravention of Section
4.25 hereof.
"Disbursement Agent" means Deutsche Bank Trust Company Americas,
in its capacity as the disbursement agent under the Disbursement Agreement
and its successors in such capacity pursuant to the Disbursement Agreement.
"Disbursement Agreement" means the Master Disbursement Agreement,
dated as of the date of this Indenture, among Wynn Las Vegas, the Trustee,
a representative of the lenders under the Credit Agreement and the
Disbursement Agent in connection with the Projects, as amended, modified or
otherwise supplemented from time to time in accordance with its terms.
"Disbursement Collateral Account Agreement" means the Disbursement
Collateral Account Agreement, dated as of the date of this Indenture, among
Wynn Las Vegas, the securities intermediary named therein and the
Collateral Agent, as amended, modified or otherwise supplemented from time
to time in accordance with its terms, this Indenture and the other
Collateral Documents.
"Disqualified Stock" means any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible, or for which
it is exchangeable, in each case, at the option of the holder of the
Capital Stock), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or redeemable at the option of the holder of the Capital Stock, in whole or
in part, on or prior to the date that is 91 days after the date on which
the Notes mature. Notwithstanding the preceding sentence, (1) any Capital
Stock that would constitute Disqualified Stock solely because the holders
of the Capital Stock have the right to require Wynn Las Vegas to repurchase
such Capital Stock upon the occurrence of a change of control or an asset
sale shall not constitute Disqualified Stock if the terms of such Capital
Stock provide that Wynn Las Vegas may not repurchase or redeem any such
Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.07 hereof and (2) any Capital Stock
shall not constitute Disqualified Stock solely because it is required to be
redeemed under applicable Gaming Laws. The amount of Disqualified Stock
deemed to be outstanding at any time for purposes of this indenture shall
be the maximum amount that Wynn Las Vegas and its Restricted Subsidiaries
may become obligated to pay upon the maturity of, or pursuant to any
mandatory redemption provisions of, such Disqualified Stock, exclusive of
accrued dividends.
"Domestic Subsidiary" means any Restricted Subsidiary of Wynn Las
Vegas that was formed under the laws of the United States or any state of
the United States or the District of Columbia or that guarantees or
otherwise provides direct credit support for any Indebtedness of Wynn Las
Vegas.
"Entertainment Facility" means a showroom or entertainment
facility adjoining the Wynn Las Vegas hotel and casino resort on the
Project Site and connected directly to such hotel, which is initially
expected to feature the musical, "Avenue Q."
"Equity Interests" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt security
that is convertible into, or exchangeable for, Capital Stock).
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear system.
"Event of Loss" means, with respect to any property or asset
(tangible or intangible, real or personal), whether in respect of a single
event or a series of related events, any of the following:
(1) any loss, destruction or damage of such property or
asset;
(2) any actual condemnation, seizure or taking by exercise of
the power of eminent domain or otherwise of such property or asset, or
confiscation of such property or asset or the requisition of the use
of such property or asset; or
(3) any settlement in lieu of clause (2) above.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the Notes issued in the Exchange Offer
pursuant to Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set forth
in the Registration Rights Agreement.
"Exclusive Note Collateral" means the remaining net proceeds of
the offering of the Notes, if any, which are required, under the
Disbursement Agreement, to be deposited into the Secured Account.
"Existing Indebtedness" means Indebtedness of Wynn Las Vegas or
its Subsidiaries (other than Indebtedness under the Credit Agreement) in
existence on the date of this Indenture, until such amounts are repaid or
redeemed.
"Existing Stockholders" means Stephen A. Wynn, Aruze, USA, Inc. and
Baron Asset Fund.
"Fair Market Value" means the value that would be paid by a
willing buyer to an unaffiliated willing seller in a transaction not
involving distress or necessity of either party, determined in good faith
by (1) an appropriate officer of Wynn Las Vegas, in the case of any value
equal to or less than $10.0 million or (2) the Board of Directors of Wynn
Capital, in the event of any value greater than $10.0 million (in each
case, unless otherwise provided in this Indenture). With respect to any
Affiliate Transactions, the Board of Directors' determination must be based
upon an opinion or appraisal issued by an accounting, appraisal or
investment banking firm of national standing if the Fair Market Value
exceeds $25.0 million.
"FF&E Facility" means the Credit Agreement, dated as of October
30, 2002, among Wynn Las Vegas, the collateral agent thereunder and the
lenders party thereto, including any related notes, guarantees, collateral
documents, instruments and agreements executed in connection therewith.
"Fixed Charge Coverage Ratio" means with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such
Person for such period to the Fixed Charges of such Person for such period.
In the event that the specified Person or any of its Restricted
Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems,
defeases or otherwise discharges any Indebtedness (other than ordinary
working capital borrowings) or issues, repurchases or redeems Disqualified
Stock subsequent to the commencement of the period for which the Fixed
Charge Coverage Ratio is being calculated and on or prior to the date on
which the event for which the calculation of the Fixed Charge Coverage
Ratio is made (the "Calculation Date"), then the Fixed Charge Coverage
Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, Guarantee, repayment, repurchase, redemption, defeasance or
other discharge of Indebtedness, or such issuance, repurchase or redemption
of Disqualified Stock, and the use of the proceeds therefrom, as if the
same had occurred at the beginning of the applicable four-quarter reference
period.
In addition, for purposes of calculating the Fixed Charge Coverage
Ratio:
(1) acquisitions that have been made by the specified Person
or any of its Restricted Subsidiaries, including through mergers or
consolidations, or any Person or any of its Restricted Subsidiaries
acquired by the specified Person or any of its Restricted
Subsidiaries, and including any related financing transactions and
including increases in ownership of Restricted Subsidiaries, during
the four-quarter reference period or subsequent to such reference
period and on or prior to the Calculation Date shall be given pro
forma effect (in accordance with Regulation S-X under the Securities
Act) as if they had occurred on the first day of the four-quarter
reference period;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses (and ownership interests therein) disposed of prior to the
Calculation Date, shall be excluded;
(3) the Fixed Charges attributable to discontinued
operations, as determined in accordance with GAAP, and operations or
businesses (and ownership interests therein) disposed of prior to the
Calculation Date, shall be excluded, but only to the extent that the
obligations giving rise to such Fixed Charges shall not be obligations
of the specified Person or any of its Restricted Subsidiaries
following the Calculation Date;
(4) any Person that is a Restricted Subsidiary on the
Calculation Date shall be deemed to have been a Restricted Subsidiary
at all times during such four-quarter period;
(5) any Person that is not a Restricted Subsidiary on the
Calculation Date shall be deemed not to have been a Restricted
Subsidiary at any time during such four-quarter period; and
(6) if any Indebtedness bears a floating rate of interest,
the interest expense on such Indebtedness shall be calculated as if
the rate in effect on the Calculation Date had been the applicable
rate for the entire period (taking into account any Hedging Obligation
applicable to such Indebtedness if such Hedging Obligation has a
remaining term as at the Calculation Date in excess of 12 months).
"Fixed Charges" means, with respect to any specified Person for
any period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued,
including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component
of all payments associated with Capital Lease Obligations, imputed
interest with respect to Attributable Debt, commissions, discounts and
other fees and charges incurred in respect of letter of credit or
bankers' acceptance financings, and net of the effect of all payments
made or received pursuant to Hedging Obligations in respect of
interest rates; plus
(2) the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such period; plus
(3) any interest expense on Indebtedness of another Person
that is guaranteed by such Person or one of its Restricted
Subsidiaries or secured by a Lien on assets of such Person or one of
its Restricted Subsidiaries, whether or not such Guarantee or Lien is
called upon; plus
(4) the product of (a) all dividends, whether paid or accrued
and whether or not in cash, on any series of preferred stock of such
Person or any of its Restricted Subsidiaries, other than dividends on
Equity Interests payable solely in Equity Interests of Wynn Las Vegas
(other than Disqualified Stock) or to Wynn Las Vegas or a Restricted
Subsidiary of Wynn Las Vegas, times (b) a fraction, the numerator of
which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of such
Person (or, in the case of a Person that is a partnership or a limited
liability company, the combined federal, state and local income tax
rate that was or would have been utilized to calculate the Tax Amount
of such Person), expressed as a decimal, in each case, determined on a
consolidated basis in accordance with GAAP.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant
segment of the accounting profession, which are in effect on the date of
this Indenture.
"Gaming Authority" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever
of the United States federal government, any foreign government, any state,
province or city or other political subdivision or otherwise, whether now
or hereafter in existence, including the Nevada Gaming Commission, the
Nevada State Gaming Control Board, the Clark County Liquor and Gaming
Licensing Board and any other applicable gaming regulatory authority or
agency, in each case, with authority to regulate the sale or distribution
of liquor or any gaming operation (or proposed gaming operation) owned,
managed or operated by Wynn Las Vegas or any of the Restricted
Subsidiaries.
"Gaming Facility" means any building or other structure used or
expected to be used to enclose space in which a gaming operation is
conducted and (1) is wholly or partially owned, directly or indirectly, by
Wynn Las Vegas or any Restricted Subsidiary or (2) any portion or aspect of
which is managed or used, or expected to be managed or used, by Wynn Las
Vegas or any Restricted Subsidiary.
"Gaming Law" means the gaming laws, rules, regulations or
ordinances of any jurisdiction or jurisdictions to which Wynn Las Vegas or
any of the Restricted Subsidiaries is, or may be at any time after the date
of this Indenture, subject.
"Gaming License" means any license, permit, franchise or other
authorization from any Gaming Authority necessary on the date of this
Indenture or at any time thereafter to own, lease, operate or otherwise
conduct the gaming business of Wynn Las Vegas or any of its Restricted
Subsidiaries.
"Global Note Legend" means the legend set forth in Section
2.06(g)(2), which is required to be placed on all Global Notes issued under
this Indenture.
"Global Notes" means each of the global Notes issued in accordance
with Section 2.01 and substantially in the form of Exhibit A-1 attached
hereto that, except as otherwise provided in Section 2.01(b) hereof, bear
the Global Note Legend and that have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto, and that are deposited with
or on behalf of and registered in the name of the Depositary.
"Golf Course" means the 18-hole championship golf course to be
located on the Golf Course Land.
"Golf Course Construction Contract" means the Lump Sum Agreement,
effective as of February 18, 2003, by and between Wynn Las Vegas, LLC and
Wadsworth Golf Construction Company, relating to the construction of the
new golf course on the Project Site, as amended, modified or otherwise
supplemented from time to time in accordance with the Disbursement
Agreement.
"Golf Course Design Services Agreement" means that certain Golf
Course Design Services Agreement, to which Wynn Las Vegas is a party, as
amended, modified or otherwise supplemented from time to time in any manner
that is not in contravention of Section 4.25 hereof.
"Golf Course Land" means that portion of the Project Site
described in Exhibit Q-3 to the Disbursement Agreement designated as the
Golf Course Land (both the fee interest and leasehold interest estates) in
the Collateral Documents, together with all improvements thereon and all
rights appurtenant thereto, other than, for purposes of Section 4.22
hereof, homesites adjacent thereto to be used to construct a residence for
Stephen A. Wynn.
"Golf Course Lease" means the Golf Course Lease, dated as of the
date of this Indenture, between Wynn Golf, as lessor, and Wynn Las Vegas,
as lessee, with respect to the lease of land on the Golf Course, as
amended, modified or otherwise supplemented from time to time in any manner
that is not in contravention of Section 4.25 hereof.
"Government Securities" means securities that are:
(1) direct obligations of the United States of America for
the timely payment of which its full faith and credit is pledged; or
(2) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America
the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America;
which, in either case, are not callable or redeemable at the option of the
issuer thereof, and will include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended), as
custodian with respect to any such Government Security or a specific
payment of principal of or interest on any such Government Security held by
such custodian for the account of the holder of such depository receipt;
provided that (except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of
the Government Security or the specific payment of principal of or interest
on the Government Security evidenced by such depository receipt.
"Government Transfers" means:
(1) any seizures, condemnations, confiscations or takings by
the power of eminent domain or other similar mandatory actions, in
each case by a governmental authority against real property held by
Wynn Las Vegas or any of the Restricted Subsidiaries, or
(2) any transfers of interests in real property held by Wynn
Las Vegas or any of the Restricted Subsidiaries to any State of
Nevada, Clark County or local governmental authority consisting of
easements, rights-of-way, dedications, exchanges or swaps or other
similar transfers undertaken in furtherance of the development,
construction or operation of the Projects, so long as such transfers,
individually and in the aggregate, do not materially interfere with
the ordinary course of business or the assets or operations of Wynn
Las Vegas or any of the Restricted Subsidiaries, or materially detract
from the value of the real property subject thereto.
"Guarantee" means a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of business,
direct or indirect, in any manner including, without limitation, by way of
a pledge of assets or through letters of credit or reimbursement agreements
in respect thereof, of all or any part of any Indebtedness (whether arising
by virtue of partnership arrangements, or by agreements to keep-well, to
purchase assets, goods, securities or services, to take or pay or to
maintain financial statement conditions or otherwise).
"Guarantor" means each of:
(1) the Restricted Subsidiaries that are Domestic
Subsidiaries, other than Immaterial Subsidiaries, and
(2) any other Person that provides a Guarantee by executing a
supplemental indenture in accordance with the provisions of this
Indenture,
and, except to the extent the applicable Note Guarantee is released in
accordance with the applicable provisions of this Indenture, their
respective successors and assigns (other than the Issuers). A Person shall
cease to be a Guarantor following the release of its Note Guarantee as
described in Sections 11.05 and 11.06 hereof.
"Hedging Obligations" means, with respect to any specified Person,
the obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to
floating or from floating to fixed), interest rate cap agreements and
interest rate collar agreements;
(2) other agreements or arrangements designed to manage
interest rates or interest rate risk; and
(3) other agreements or arrangements designed to protect such
Person against fluctuations in currency exchange rates and/or
commodity prices.
"Holder" means any registered holder, from time to time, of the
Notes. Only registered holders shall have any rights under this Indenture.
"Home Site Land" means a tract of land (not to exceed 20 acres)
located on the Golf Course Land where residential and non-gaming related
developments may be built, after the release of the Trustee's Liens (for
the benefit of the Holders) thereon in accordance with Section 10.03(d)
hereof.
"IAI Global Note" means a Global Note substantially in the form of
Exhibit A-1 hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depositary or its nominee that shall be issued in a denomination equal to
the outstanding principal amount of the Notes sold to Institutional
Accredited Investors.
"Immaterial Subsidiary" means, as of any date, any Restricted
Subsidiary whose total assets, as of that date, are less than $500,000 and
whose total revenues for the most recent 12-month period do not exceed
$500,000; provided that a Restricted Subsidiary shall not be considered to
be an Immaterial Subsidiary if it, directly or indirectly, guarantees or
otherwise provides direct credit support for any Indebtedness of Wynn Las
Vegas.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person (excluding accrued expenses and trade
payables), whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in
respect thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations or Attributable
Debt;
(5) representing the balance deferred and unpaid of the
purchase price of any property or services due more than six months
after such property is acquired or such services are completed; or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of
credit, Attributable Debt and Hedging Obligations) would appear as a
liability upon a balance sheet of the specified Person prepared in
accordance with GAAP. In addition, the term "Indebtedness" includes all
Indebtedness of others secured by a Lien on any asset of the specified
Person (whether or not such Indebtedness is assumed by the specified
Person) and, to the extent not otherwise included, the Guarantee by the
specified Person of any Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value of the Indebtedness, in the case of
any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, together with
any interest on the Indebtedness that is more than 30 days past due,
in the case of any other Indebtedness;
(3) in the case of a Guarantee of Indebtedness, the maximum
amount of the Indebtedness guaranteed under such Guarantee; and
(4) in the case of Indebtedness of others secured by a Lien
on any asset of the specified Person, the lesser of:
(a) the face amount of such Indebtedness (plus, in the
case of any letter of credit or similar instrument, the amount of any
reimbursement obligations in respect thereof), and
(b) the Fair Market Value of the asset(s) subject to such
Lien.
Notwithstanding anything contained in this Indenture to
the contrary, any obligation of the Issuers or the Restricted
Subsidiaries incurred in the ordinary course of business in
respect of casino chips or similar instruments shall not
constitute "Indebtedness" for any purpose under this Indenture.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Purchasers" means Deutsche Bank Securities, Inc., Banc of
America Securities LLC, Bear, Stearns & Co. Inc., J.P. Morgan Securities Inc.
and SG Americas Securities, LLC.
"Initial Notes" means the first $1.3 billion aggregate principal
amount of Notes issued under this Indenture on the date of this Indenture.
"Institutional Accredited Investor" means an institution that is
an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act, who are not also QIBs.
"Intercreditor Agreement" means the Intercreditor Agreement, dated
as of the date of this Indenture, among the Trustee, a representative of
the lenders under the Credit Agreement, the Collateral Agent and the other
parties thereto from time to time, as such agreement may be amended,
modified, restated or supplemented in accordance with the terms of this
Indenture.
"Investments" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including Affiliates)
in the forms of loans (including Guarantees or other obligations), advances
(excluding advances made to customers in the ordinary course of business)
or capital contributions (excluding commission, travel and similar advances
to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with
GAAP. If Wynn Las Vegas or any of the Restricted Subsidiaries sells or
otherwise disposes of any Equity Interests of any direct or indirect
Restricted Subsidiary of Wynn Las Vegas such that, after giving effect to
any such sale or disposition, such Person is no longer a Restricted
Subsidiary of Wynn Las Vegas, Wynn Las Vegas shall be deemed to have made
an Investment on the date of any such sale or disposition equal to the Fair
Market Value of Wynn Las Vegas' Investments in such Restricted Subsidiary
that were not sold or disposed of in an amount determined as provided in
Section 4.07 hereof. The acquisition by Wynn Las Vegas or any of the
Restricted Subsidiaries that holds an Investment in a third Person shall be
deemed to be an Investment by Wynn Las Vegas or such Restricted Subsidiary
in such third Person in an amount equal to the Fair Market Value of the
Investments held by the acquired Person in such third Person in an amount
determined as provided in Section 4.07 hereof. Except as otherwise provided
in this Indenture, the amount of an Investment shall be determined at the
time the Investment is made and without giving effect to subsequent changes
in value.
"Issuers" means Wynn Las Vegas and Wynn Capital.
"Koval Land" means the approximately 18 acres of land located
across from the Projects on Koval Lane and Sands Avenue which is initially
expected to be used for employee parking and other ancillary uses.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a
payment date is a Legal Holiday at a place of payment, payment may be made
at that place on the next succeeding day that is not a Legal Holiday, and
no interest shall accrue on such payment for the intervening period.
"Lien" means, with respect to any asset, (i) any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected under
applicable law, including any conditional sale or other title retention
agreement, (ii) any lease in the nature thereof, or (iii) any agreement to
deliver a security interest in any asset. Notwithstanding the foregoing,
the trust established and maintained for the sole purpose of holding title
to the Aircraft and which a Restricted Subsidiary of Wynn Las Vegas is the
sole beneficiary thereof shall not be considered a Lien for purposes of
this Indenture.
"Liquidated Damages" means all liquidated damages then owing
pursuant to the Registration Rights Agreement.
"Liquidity Reserve Account" has the meaning set forth in the
Disbursement Agreement.
"Local Bank Collateral Account Agreement" means the Local Bank
Collateral Account Agreement, dated as of the date of this Indenture, among
Wynn Las Vegas, the securities intermediary named therein and the
Collateral Agent, as amended, modified or otherwise supplemented from time
to time in accordance with its terms, this Indenture and the other
Collateral Documents.
"Macau Project" means the gaming and/or hotel project in Macau
contemplated by the Concession Contract for the Operation of Games of Chance or
Other Games in Casinos in the Macau Special Administrative Region of the
People's Republic of China, dated June 24, 2002, between the Macau Special
Administrative Region of the People's Republic of China and Wynn Resorts
(Macau), S.A.
"Management Agreement" means the Management Agreement, dated as of
the date of this Indenture, among Wynn Resorts, as manager, the Issuers and
the Restricted Subsidiaries, as amended, modified or supplemented from time
to time in any manner not in contravention of Section 4.25 hereof.
"Management Fees" means any fees payable pursuant to the Management
Agreement, in an aggregate amount not to exceed, during any 12-month period,
1.5% of Net Revenues of Wynn Las Vegas and its Restricted Subsidiaries for the
period of four full consecutive fiscal quarters of Wynn Las Vegas most recently
ended prior to the commencement of such 12-month period.
"Management Fees Subordination Agreement" means the Management Fees
Subordination Agreement, dated as of the date of this Indenture, by and among
Wynn Resorts, the Issuers, Deutsche Bank Trust Company Americas, as
administrative agent under the Credit Agreement and the Trustee.
"Material Project Assets" means:
(1) assets that are necessary to the development,
construction or operation of the Phase I Project in accordance with
the Phase I Plans and Specifications, or
(2) assets, the absence of which would result in the Phase I
Completion Date occurring after the Phase I Outside Completion
Deadline.
In no event shall (1) Released Assets or (2) assets with a Fair Market
Value less than $100.0 million be considered Material Project Assets.
"Moody's" means Moody's Investors Service, Inc., or any successor to
its statistical rating business, except that any reference to a particular
rating by Moody's shall be deemed to be a reference to the corresponding rating
by any such successor.
"Net Income" means, with respect to any specified Person, the net
income (loss) of such Person, determined in accordance with GAAP (and reduced
by any provision in respect of the Tax Amount attributable to such net income)
and before any reduction in respect of preferred equity dividends, giving
effect to, without duplication, any amounts paid or distributed by Wynn Las
Vegas or any of its Restricted Subsidiaries as Allocable Overhead if and to the
same extent that such amounts would have been included in the calculation of
net income if incurred by Wynn Las Vegas directly, excluding (to the extent
previously taken into account in computing net income), however:
(1) any gain (or loss), together with any related provision
for the Tax Amount on such gain (or loss), realized in connection
with: (a) any Asset Sale; or (b) the disposition of any securities by
such Person or any of its Restricted Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its
Restricted Subsidiaries; and
(2) any extraordinary gain (or loss), together with any
related provision for the Tax Amount on such extraordinary gain (or
loss).
"Net Loss Proceeds" means the aggregate cash proceeds received by
Wynn Las Vegas or any of the Restricted Subsidiaries in respect of any
Event of Loss, including, without limitation, insurance proceeds from
condemnation awards or damages awarded by any judgment, net of:
(1) the direct costs in recovery of such Net Loss Proceeds
(including, without limitation, legal, accounting, appraisal and
insurance adjuster fees and any relocation expenses incurred as a
result thereof),
(2) amounts required to be and actually applied to the
repayment of Indebtedness (other than Indebtedness that is
subordinated in right of payment to the Notes or the Note Guarantees)
permitted under this Indenture that is secured by a Permitted Lien on
the asset or assets that were the subject of such Event of Loss that
ranks prior to the security interest of the Trustee in those assets,
after giving effect to any provisions in the Collateral Documents and
the Intercreditor Agreement as to the relative ranking of security
interests, and
(3) any taxes or Tax Amount paid or payable as a result of
the receipt of such cash proceeds.
"Net Proceeds" means the aggregate cash proceeds received by Wynn
Las Vegas or any of the Restricted Subsidiaries in respect of any Asset
Sale (including, without limitation, any cash received upon the sale or
other disposition of any non-cash consideration received in any Asset
Sale), net of:
(1) the direct costs relating to such Asset Sale, including,
without limitation, legal, accounting and investment banking fees, and
sales commissions, and any relocation expenses incurred as a result of
the Asset Sale and the provision for taxes or Tax Amount paid or
payable as a result of the Asset Sale, in each case, after taking into
account any available tax credits or deductions and any tax sharing
arrangements,
(2) amounts, if any, required to be, and in fact, applied to
the prepayment of Indebtedness permitted under this Indenture (other
than Indebtedness that is subordinated in right of payment to the
Notes or the Note Guarantees) secured by a Permitted Lien on the asset
or assets that were the subject of such Asset Sale that ranks prior to
the security interest of the Trustee in those assets, after giving
effect to any provisions in the Collateral Documents and the
Intercreditor Agreement as to the relative ranking of security
interests, and
(3) any reserve for adjustment in respect of the sale price
of such asset or assets established in accordance with GAAP.
"Net Revenues" means, for any period, the net revenues of Wynn Las
Vegas and its Restricted Subsidiaries, as set forth on Wynn Las Vegas'
income statement for the relevant period under the line item "net
revenues," calculated in accordance with GAAP and with Regulation S-X under
the Securities Act and in a manner consistent with that customarily
utilized in the gaming industry.
"Nevada Gaming Control Act" means Chapter 463 of the Nevada Revised
Statutes.
"Non-Project Assets" means the Released Assets and:
(1) Project Assets that are not necessary to the development,
construction and operation of either the Phase I Project or the Phase
II Project in accordance with the Phase I Plans and Specifications and
the Phase II Plans and Specifications, respectively, and
(2) Project Assets, the absence of which would result in
neither the Phase I Completion Date occurring after the Phase I
Outside Completion Deadline nor the Phase II Completion Date occurring
after the Phase II Outside Completion Deadline.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither Wynn Las Vegas nor any of its
Restricted Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would
constitute Indebtedness) (other than a pledge of the Equity Interests
of the Unrestricted Subsidiary that is an obligor with respect to such
Indebtedness), (b) is directly or indirectly liable as a guarantor or
otherwise, or (c) constitutes the lender;
(2) no default with respect to which (including any rights
that the holders of the Indebtedness may have to take enforcement
action against an Unrestricted Subsidiary, other than the Completion
Guarantor) would permit upon notice, lapse of time or both any holder
of any other Indebtedness of Wynn Las Vegas or any of its Restricted
Subsidiaries to declare a default on such other Indebtedness or cause
the payment of the Indebtedness to be accelerated or payable prior to
its Stated Maturity; and
(3) as to which the lenders have been notified in writing
that they shall not have any recourse to the stock or assets of Wynn
Las Vegas or any of its Restricted Subsidiaries (other than the stock
of an Unrestricted Subsidiary pledged by Wynn Las Vegas of one of its
Restricted Subsidiaries to secure Indebtedness of the Unrestricted
Subsidiary)
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Guarantee" means the Guarantee, by each Guarantor of the
Issuers' obligations under this Indenture and the Notes, executed pursuant
to the provisions of this Indenture.
"Notes" has the meaning assigned to it in the preamble to this
Indenture. The Initial Notes and the Additional Notes shall be treated as a
single class for all purposes under this Indenture, and unless the context
otherwise requires, all references to the Notes shall include the Initial
Notes and any Additional Notes.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable
under the documentation governing any Indebtedness (including, without
limitation, interest accruing at the then applicable rate provided in such
documentation after the maturity of such Indebtedness and interest accruing
at the then applicable rate provided in such documentation after the filing
of a petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any debtor under such
documentation, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding).
"Officer" means:
(1) with respect to a corporation, a Designated Officer of
such corporation;
(2) with respect to a partnership, a Designated Officer of
the general partner of such partnership; and
(3) with respect to a limited liability company, a Designated
Officer of such limited liability company, or a Designated Officer of
the manager or managing member of such limited liability company, as
the case may be (or, if such manager or managing member is an
individual, such individual).
"Officers' Certificate" means, with respect to any Person, a
certificate signed on behalf of such Person by:
(1) with respect to a corporation, two Designated Officers of
such corporation;
(2) with respect to a partnership, two Designated Officers of
the general partner of such partnership; and
(3) with respect to a limited liability company, two
Designated Officers of the manager or managing member of such limited
liability company, as the case may be (or, if such manager or managing
member is an individual, such individual),
in each case, that meets the requirement of Section 14.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of
Section 14.05 hereof. The counsel may be an employee of or counsel to Wynn
Las Vegas, any of the Restricted Subsidiaries as the case may be, or the
Trustee.
"Parent" means Wynn Resorts.
"Pari Passu Debt" means any Indebtedness, other than Indebtedness
incurred under the Credit Agreement, that is pari passu with the Notes
containing provisions similar to those set forth in this Indenture with
respect to offers to purchase or redeem with the proceeds of sales of
assets or Events of Loss.
"Participant" means, with respect to the Depositary, a Person who
has an account with the Depositary.
"Pass Through Entity" means any of (1) a grantor trust for United
States federal or state income tax purposes or (2) an entity treated as a
partnership or a disregarded entity for federal or state income tax
purposes.
"Payment and Performance Bond" means any payment and performance
bond delivered under any contract or subcontract (including from the Phase
I General Contractor) in favor of Wynn Las Vegas (or any contractor), the
agent for the lenders under the Credit Agreement and the trustee supporting
the contractor's or subcontractor's obligations under any such contract or
subcontract.
"Permitted Business" means:
(1) the gaming business;
(2) all businesses whether or not licensed by a Gaming
Authority which are necessary for, incident to, useful to, arising out
of, supportive of or connected to the development, ownership or
operation of a Gaming Facility;
(3) any development, construction, ownership or operation of
lodging (including (i) any timeshare, interval ownership or similar
development or (ii) any condominium or similar development with
respect to the Phase III Project), retail and restaurant or convention
facilities, sports or entertainment facilities, golf facilities, art
gallery facilities, food and beverage distribution operations,
transportation services (including operation and chartering of the
Aircraft), sales, leasing and repair of automobiles, parking services,
or other activities related to the foregoing;
(4) any business (including any related and legally
permissible internet business) that is a reasonable extension,
development or expansion of any of the foregoing; and
(5) the ownership by a Person of Capital Stock in its direct
Wholly Owned Subsidiaries.
"Permitted C-Corp. Conversion" means a transaction resulting in
Wynn Las Vegas, the Completion Guarantor or any of the Restricted
Subsidiaries becoming a subchapter "C" corporation under the Code, so long
as, in connection with such transaction:
(1) the subchapter "C" corporation resulting from such
transaction is a corporation organized and existing under the laws of
any state of the United States or the District of Columbia and the
Beneficial Owners of the Equity Interests of the subchapter "C"
corporation shall be the same, and shall be in the same percentages,
as the Beneficial Owners of Equity Interests of the applicable entity
immediately prior to such transaction;
(2) the subchapter "C" corporation resulting from such
transaction assumes in writing all of the obligations, if any, of the
applicable entity under (a) this Indenture, the Notes, the Note
Guarantees by the Guarantors and the Collateral Documents and (b) all
other documents and instruments to which such Person is a party (other
than, in the case of clause (a) only, any documents and instruments
that, individually or in the aggregate, are not material to the
subchapter "C" corporation);
(3) the subchapter "C" corporation resulting from such
transaction complies with Section 4.28 hereof;
(4) the Trustee is given not less than 45 days' advance
written notice of such transaction and evidence satisfactory to the
Trustee (including, without limitation, title insurance and a
satisfactory Opinion of Counsel) regarding the maintenance of the
perfection and priority of liens granted, or intended to be granted,
in favor of the Trustee in the Collateral following such transaction;
(5) such transaction would not cause or result in a Default
or an Event of Default;
(6) such transaction does not result in the loss or
suspension or material impairment of any Gaming License unless a
comparable Gaming License is effective prior to or simultaneously with
such loss, suspension or material impairment;
(7) such transaction does not require any Holder or
Beneficial Owner of the Notes to obtain a Gaming License or be
qualified or found suitable under the laws of any applicable gaming
jurisdiction;
(8) Wynn Las Vegas shall have delivered to the Trustee an
Opinion of Counsel of national repute in the United States reasonably
acceptable to the Trustee confirming that neither Issuer, nor any
Restricted Subsidiary, nor any Guarantor nor any of the Holders shall
recognize income, gain or loss for United States federal or state
income tax purposes as a result of such Permitted C-Corp. Conversion;
and
(9) Wynn Las Vegas shall have delivered to the Trustee a
certificate of the Chief Financial Officer of Wynn Las Vegas
confirming that the conditions in clauses (1) through (8) have been
satisfied.
"Permitted Investments" means:
(1) any Investment by any entity in Wynn Las Vegas or in a
Wholly Owned Restricted Subsidiary of Wynn Las Vegas;
(2) any Investment in Cash Equivalents;
(3) any Investment by Wynn Las Vegas or any Restricted
Subsidiary in a Person that is engaged in a Permitted Business and
that is evidenced by Capital Stock or intercompany notes that are
pledged to the Trustee as Primary Note Collateral, if as a result of
such Investment:
(a) such Person becomes a Wholly Owned Restricted
Subsidiary of Wynn Las Vegas, or
(b) such Person is merged, consolidated or amalgamated
with or into, or transfers or conveys all or substantially all of its
assets to, or is liquidated into, Wynn Las Vegas or a Wholly Owned
Restricted Subsidiary of Wynn Las Vegas, and such Investment complies
with the provisions of Section 5.01 hereof;
(4) any Investment made as a result of the receipt of
non-cash consideration from (i) a Permitted Disposition or (ii) an
Asset Sale or an Event of Loss of the type contemplated by clause (3)
of the definition of "Event of Loss" that was made pursuant to and in
compliance with Sections 4.10 or 4.16 hereof;
(5) Investment, solely in exchange for Equity Interests
(other than Disqualified Stock) of Wynn Resorts;
(6) to the extent constituting an Investment, any extensions
of trade credit in the ordinary course of business and Investments
received in compromise or settlement of obligations of trade creditors
or customers that were incurred in the ordinary course of business,
including pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of any trade creditor or
customer;
(7) any Investment in Hedging Obligations;
(8) to the extent constituting an Investment, licenses of
patents, trademarks and other intellectual property rights granted by
Wynn Las Vegas or any of its Restricted Subsidiaries in the ordinary
course of business and not interfering in any material respect with
the ordinary conduct of the business of such Person;
(9) to the extent constituting an Investment, repurchases of
the Notes;
(10) an Investment in the form of a loan by Wynn Las Vegas to
(a) Wynn Group Asia, Inc., (b) to Wynn Resorts for purposes of an
investment in Wynn Group Asia, Inc., or (c) directly to Wynn Resorts
(Macau), S.A., in each case, on or before August 30, 2005, in an
amount not to exceed $122,000,000, which loan shall be pledged as
Collateral to secure (i) the Indebtedness outstanding under the Credit
Agreement and (ii) the Notes (except in the case of a direct loan to
Wynn Resorts (Macau), S.A., for which no such pledge shall be
required);
(11) Investments held by a Person in a third Person at the
time such Person is acquired by Wynn Las Vegas or any Restricted
Subsidiary of Wynn Las Vegas; provided that such Investments were not
acquired in contemplation of such acquisition by Wynn Las Vegas or
such Restricted Subsidiary;
(12) loans or advances to employees of Wynn Las Vegas or its
Restricted Subsidiaries (other than the Principal) made in the
ordinary course of business not exceeding $5.0 million in the
aggregate outstanding at any time;
(13) to the extent constituting Investments, payroll, travel
and similar advances to cover matters that at the time of such
advances are expected to ultimately be treated as expenses for
accounting purposes and that are made in the ordinary course of
business; and
(14) the assignment of gaming debts evidenced by a credit
instrument, including what are commonly referred to as "markers," to
an Affiliate of Wynn Las Vegas for the purpose of collecting amounts
outstanding under such gaming debts or "markers" due to Wynn Las Vegas
thereunder; provided, however, that any Affiliate receiving any such
assignment enters into a binding agreement to pay all amounts so
collected back to Wynn Las Vegas within 30 days of receipt of payment
of such collected amounts; provided, further, that any such Affiliate
is not, at the time of any such assignment, in default of its
obligations under any such binding agreement previously delivered with
respect to any such assignment.
"Permitted Junior Debt" means any secured Indebtedness, which is
either subordinated in right of payment to the Notes or is secured by Liens
with a lower priority than the Liens securing the Notes, with respect to
which the agent, trustee or other representatives of the lenders or the
holders of such Indebtedness shall have become a party to the Intercreditor
Agreement and which shall be subject to restrictions and the terms
applicable to the holders of "junior debt" (as such term is defined in the
Intercreditor Agreement).
"Permitted Liens" means:
(1) Liens on property of a Person existing at the time such
Person is merged into or consolidated with Wynn Las Vegas or any of
the Restricted Subsidiaries; provided such Liens were in existence
prior to the contemplation of such merger or consolidation and do not
extend to any assets other than those of the Person merged into or
consolidated with Wynn Las Vegas or any of the Restricted
Subsidiaries;
(2) Liens in favor of Wynn Las Vegas or any of the Restricted
Subsidiaries; provided if any such Liens are on any or all of the
Collateral, such Liens are either:
(a) collaterally assigned to the Collateral Agent for the
benefit of the Trustee and the Holders of the Notes, or
(b) contractually subordinated to the security interests
in favor of the Trustee for the benefit of the Holders of the Notes
securing the obligations under the Notes, the Note Guarantees and the
Credit Agreement;
(3) Liens on property existing at the time of acquisition
thereof by Wynn Las Vegas or any of the Restricted Subsidiaries (other
than materials or supplies acquired in connection with developing,
constructing, expanding or equipping of the Projects), provided such
Liens were in existence prior to the contemplation of such
acquisition;
(4) Liens existing on the date of this Indenture and
disclosed in the title commitment for the Deeds of Trust relating to
the Projects or in the applicable schedule(s) to the Credit Agreement,
as in effect on the date of this Indenture;
(5) Liens to secure performance of statutory obligations of,
or obligations to, landlords and carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen or other like obligations arising in
the ordinary course of business and with respect to amounts not yet
delinquent for a period of more than 30 days or which are being
contested in good faith by an appropriate process of law, so long as a
reserve or other appropriate provision as shall be required by GAAP
shall have been made therefor;
(6) any Liens permitted under the Disbursement Agreement;
(7) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings promptly instituted and diligently
concluded, so long as any reserve or other appropriate provision as
shall be required in conformity with GAAP shall have been made
therefor;
(8) Liens on the Collateral created by this Indenture and the
Collateral Documents securing the Indebtedness and other Obligations
under this Indenture and the Collateral Documents, including the
Exchange Notes; provided, however, that this clause (8) shall not be
deemed to permit the extension of the Liens on the Collateral created
by this Indenture and the Collateral Documents with respect to any
Indebtedness incurred after the date of this Indenture as the result
of the issuance of Additional Notes under this Indenture in compliance
with Section 4.09 hereof;
(9) Liens on the Collateral (other than the Exclusive Note
Collateral) securing up to $1.0 billion of Indebtedness and other
Obligations under the Credit Agreement that were permitted by the
terms of this Indenture to be incurred;
(10) Liens on property or assets to secure Indebtedness
permitted by clause (7) of Section 4.09(b) hereof; provided, however,
that so long as such Indebtedness is not incurred under the Credit
Agreement or through the issuance of Additional Notes under this
Indenture, such Liens do not at any time encumber any assets or
property other than the assets or property financed by such
Indebtedness, and the proceeds (including insurance proceeds),
products, rents, profits, accessions and replacements thereof or
thereto; provided, further, to the extent that the Indebtedness
permitted by clause (7) of Section 4.09(b) hereof is incurred under
the Credit Agreement or through the issuance of Additional Notes under
this Indenture and the property or assets acquired with such
Indebtedness becomes part of the Collateral, such Indebtedness may be
secured by the Collateral;
(11) Liens, pledges or deposits to secure the performance of
bids, trade contracts (other than borrowed money), leases, statutory
obligations, appeal bonds and other obligations of like nature, in
each case, in the ordinary course of business, and lease obligations
or nondelinquent obligations under workers' compensation, unemployment
insurance or similar legislation;
(12) without duplication, (i) Government Transfers, and (ii)
easements, rights-of-way, restrictions, zoning, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the business or assets of
Wynn Las Vegas or any of the Restricted Subsidiaries incurred in
connection with a Permitted Business;
(13) Liens on Equity Interests in Unrestricted Subsidiaries
of Wynn Las Vegas but only to the extent that the recourse of the
lender on any Indebtedness which such Lien secures is limited to such
Equity Interests;
(14) Liens on assets or property of Wynn Las Vegas or any of
the Restricted Subsidiaries arising by reason of any attachment or
judgment not constituting an Event of Default under this Indenture, so
long as:
(a) such Liens are being contested in good faith by
appropriate proceedings, and
(b) such Liens are adequately bonded or adequate reserves
have been established on the books of the applicable Person in
accordance with GAAP;
(15) to the extent constituting Liens, ground leases and
subleases in respect of the real property owned or leased by Wynn Las
Vegas or any of the Restricted Subsidiaries, to the extent that such
ground leases and subleases are permitted under this Indenture and the
Collateral Documents and any leasehold mortgage on the lessee's
leasehold interest in the underlying real property in favor of any
party financing the lessee under any such lease or sublease, so long
as:
(a) neither Issuer nor any of the Restricted Subsidiaries
is liable for the payment of any principal of, or interest, premiums
or fees on, such financing, and
(b) the affected lease and leasehold mortgage are
expressly made subject and subordinate to the Lien of the applicable
mortgage securing the Notes, or a Note Guarantee, as the case may be;
(16) Uniform Commercial Code financing statements filed for
precautionary purposes in connection with any true lease of property
leased by Wynn Las Vegas or any of the Restricted Subsidiaries, so
long as any such financing statement does not cover any property other
than the property subject to such lease and the proceeds (including
insurance proceeds), products, rents, profits, accessions and
replacements thereof or thereto;
(17) Liens securing Permitted Refinancing Indebtedness
incurred in accordance with Section 4.09 hereof, so long as:
(a) the Indebtedness being refinanced by such Permitted
Refinancing Indebtedness was secured by a Lien of equivalent or lesser
priority, and
(b) such Liens do not at any time encumber any assets or
property other than the assets or property secured by the Indebtedness
being refinanced by such Permitted Refinancing Indebtedness, and the
proceeds (including insurance proceeds), products, rents, profits,
accessions and replacements thereof or thereto;
(18) Liens securing Indebtedness incurred in accordance with
clauses (10) and/or (14) of Section 4.09(b) hereof and, to the extent
such Indebtedness is incurred under the Credit Agreement, Liens
securing Indebtedness incurred in accordance with clause (11) of
Section 4.09(b) hereof;
(19) Liens created or expressly contemplated by the Affiliate
Agreements, so long as such Liens do not secure Indebtedness;
(20) Liens securing Hedging Obligations permitted to be
incurred in accordance with clause (5) of Section 4.09(b) hereof;
(21) licenses of patents, trademarks and other intellectual
property rights granted by Wynn Las Vegas or any of the Restricted
Subsidiaries in the ordinary course of business and not interfering in
any material respect with the ordinary conduct of the business of such
Person;
(22) Liens on cash disbursed pursuant to the Disbursement
Agreement and deposited with, or held for the account of, Wynn Las
Vegas or any of the Restricted Subsidiaries securing reimbursement
obligations under performance bonds, guaranties, trade letters of
credit, bankers' acceptances or similar instruments permitted under
clause (10) of Section 4.09(b) hereof, granted by Wynn Las Vegas or
any of the Restricted Subsidiaries in favor of the issuers of such
performance bonds, guaranties, trade letters of credit or bankers'
acceptances, so long as:
(a) any cash disbursed to secure such reimbursement
obligations is invested in Permitted Securities only, and
(b) the amount of cash and/or Permitted Securities
secured by such Liens does not exceed 110% of the amount of the
Indebtedness secured thereby (ignoring, for purposes of this clause
(b), any interest earned or paid on such cash and any dividends or
distributions declared or paid in respect of such Permitted
Investments);
(23) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods;
(24) Liens to secure additional Indebtedness incurred at any
time other than during a Collateral Release Period which is permitted
to be incurred pursuant to Section 4.09(a) or clause (8) of Section
4.09(b) hereof;
(25) Liens to secure additional Indebtedness incurred at any
time during a Collateral Release Period which is permitted to be
incurred pursuant to Section 4.09(a) or clause (1) of Section 4.09(b)
hereof; provided that the aggregate amount of such secured
Indebtedness at the time of incurrence does not exceed $100.0 million
at any one time (collectively for all assets and property subject to
such Liens);
(26) Liens on the Aircraft Assets to secure Indebtedness of
World Travel, LLC, which is permitted to be incurred pursuant to
clause (13) of Section 4.09(b) hereof;
(27) Liens not specified in clauses (1) through (25) above
and not otherwise permitted by Section 4.12 hereof, so long as the
aggregate outstanding principal amount of the obligations secured by
all such Liens in the aggregate does not exceed $10.0 million at any
one time (collectively for all assets and property subject to such
Liens);
(28) in the event any loans are made directly to Wynn Resorts
(Macau), S.A. in accordance with clause (10) of the definition of
Permitted Investments, Liens of any lenders or other providers of
Indebtedness to Wynn Resorts (Macaus), S.A. on such loans and the
proceeds thereof; provided that the Indebtedness or other Obligations
secured by any such Lien shall be non-recourse to Wynn Las Vegas and
its Restricted Subsidiaries (other than with respect to such loans);
and
(29) Liens of sellers of goods to Wynn Las Vegas or any of
its Restricted Subsidiaries arising under Article 2 of the UCC or
similar provisions of applicable law in the ordinary course of
business, covering only the goods sold and securing only the unpaid
purchase price for such goods and related expenses.
With respect to any Collateral, notwithstanding the definition of
"Permitted Liens," a Lien shall not be a Permitted Lien on such Collateral
except to the extent that any applicable Collateral Document expressly
permits the applicable Person to create, incur, assume or suffer to exist
such Lien on such Collateral.
"Permitted Refinancing Indebtedness" means any Indebtedness of
Wynn Las Vegas or any of its Restricted Subsidiaries issued within 30 days
after repayment of, in exchange for, or the net proceeds of which are used
to extend, refinance, renew, replace, amend and restate, restate, defease
or refund other Indebtedness of any Person (other than intercompany
Indebtedness), so long as:
(1) the principal amount (or accreted value, if applicable)
of such Permitted Refinancing Indebtedness does not exceed the
principal amount (or accreted value, if applicable) of the
Indebtedness extended, refinanced, renewed, replaced, defeased or
refunded (plus all accrued interest on the Indebtedness and the amount
of all expenses and premiums incurred in connection therewith), so
long as if such Indebtedness is secured by a Lien described in clause
(10) of the definition of "Permitted Liens," the principal amount, or
accreted value shall not exceed the then current Fair Market Value of
the asset so encumbered;
(2) such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to
the Notes or the Note Guarantees, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity
date of, and is subordinated in right of payment to, the Notes or the
Note Guarantees, as applicable, on terms at least as favorable, taken
as a whole, to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded; and
(4) such Indebtedness is incurred by the Person that is the
obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.
"Permitted Securities" means:
(1) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States government or issued
by any agency thereof and backed by the full faith and credit of the
United States, in each case, maturing within 18 months from the date
of acquisition;
(2) shares of money market, mutual or similar funds,
including funds managed or offered by the Trustee, which invest
exclusively in assets satisfying the requirements of clause (1) of
this definition; or
(3) shares of, or an investment in, the JPMorgan Federal
Money Market Fund.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization, limited liability company or government or other entity.
Notwithstanding the foregoing, the trust established and maintained for the
sole purpose of holding title to the Aircraft and which a Restricted
Subsidiary of Wynn Las Vegas is the sole beneficiary thereof shall not be
considered a Person for purposes of this Indenture.
"Phase I Completion" has the meaning given to such term in the
Disbursement Agreement, as in effect on the date of this Indenture.
"Phase I Completion Date" means the date on which Phase I
Completion occurs.
"Phase I Final Completion" has the meaning given to such term in
the Disbursement Agreement, as in effect on the date of this Indenture.
"Phase I Final Completion Date" means the date on which Phase I
Final Completion occurs.
"Phase I General Contractor" means Marnell Corrao Associates, Inc.,
a Nevada corporation.
"Phase I Key Project Documents" means:
(1) the Construction Contract,
(2) the Construction Contract Guarantee,
(3) the Design/Build Contract,
(4) the Golf Course Construction Contract, and
(5) each Payment and Performance Bond,
in each case, as amended, modified or otherwise supplemented from time to
time in accordance with the Disbursement Agreement (or, if Section 4.25
hereof is applicable thereto, as amended, modified or otherwise
supplemented in any manner that is not in contravention of such section).
"Phase I Land" means that portion of the Project Site described in
Exhibit Q-3 to the Disbursement Agreement, as in effect on the date of this
Indenture, together with all improvements thereon and all rights
appurtenant thereto on which the Phase I Project shall be designed,
developed, constructed and operated.
"Phase I Minimum Facilities" means:
(1) a casino which has in operation at least 1,900 slot
machines and 120 table games,
(2) a resort which has approximately 70,000 gross square feet
of retail space, approximately 190,000 gross square feet of
convention, meeting, pre-function and reception facilities, a spa and
salon complex occupying approximately 30,000 gross square feet, at
least 15 food and beverage outlets, seating for approximately 1,900
persons at a show-room for an entertainment production, and
approximately 1,600 parking spaces for guests and other visitors
which, together with existing parking facilities, will provide
approximately 3,500 parking spaces in total for employees, guests and
other visitors,
(3) a hotel with at least 2,565 guest rooms and suites, and
(4) an 18-hole championship golf course on the Golf Course
Land occupying approximately 142 acres of the Project Site.
"Phase I Opening Date" means the date on which all or any portion
of the Phase I Project is open for business, and the opening conditions set
forth in the Disbursement Agreement have been satisfied.
"Phase I Outside Completion Deadline" means December 31, 2005 (as
such date may be extended for the same number of days as the outside Phase
I completion date is extended under Section 6.3.2 of the Disbursement
Agreement, as in effect on the date of this Indenture, due to the
occurrence of any force majeure event as defined therein on the date of
this Indenture).
"Phase I Plans and Specifications" has the meaning given that term
in the Disbursement Agreement.
"Phase I Project" means Wynn Las Vegas hotel and casino resort, a
large scale luxury hotel and destination casino resort, with related
parking structure and golf course facilities currently under development on
the Project Site, all as more particularly described in Exhibit Q-1 to the
Disbursement Agreement, as in effect on the date of this Indenture.
"Phase I Project Budget" means the Phase I Project Budget attached
as Exhibit F-1 to the Disbursement Agreement.
"Phase II Completion" has the meaning given that term in the
Disbursement Agreement.
"Phase II Completion Date" means the date on which Phase II
Completion occurs.
"Phase II Final Completion" has the meaning given that term in the
Disbursement Agreement.
"Phase II Final Completion Date" means the date on which Phase II
Final Completion occurs.
"Phase II Land" means the approximately 20-acre portion of the
Project Site designated as the Phase II Land in the Collateral Documents,
together with all improvements thereon and all rights appurtenant thereto
on which the Phase II Project shall be designed, developed, constructed and
operated.
"Phase II Opening Date" means the date on which all or any portion
of the Phase II Project is open for business, and the opening conditions
set forth in the Disbursement Agreement have been satisfied.
"Phase II Outside Completion Deadline" means, if the Phase II
Project Budget and the Phase II Plans and Specifications are approved in
accordance with the Disbursement Agreement, March 31, 2008, as that date
may be extended from time to time pursuant to the Disbursement Agreement.
"Phase II Plans and Specifications" has the meaning given that
term in the Disbursement Agreement.
"Phase II Project" means the hotel tower, casino facility and
retail and convention space to be constructed on the Phase II Land that
shall be part of Wynn Las Vegas and tentatively called "Encore at Wynn Las
Vegas," as more particularly described in Exhibit Q-2 to the Disbursement
Agreement.
"Phase II Project Budget" means the Phase II Project Budget to be
approved in accordance with the Disbursement Agreement and which is
attached as Exhibit F-4 to the Disbursement Agreement.
"Point of Diversion" means, with respect to any water permit, the
location designated under such water permit where a well can be located for
the draw of water under such water permit.
"Presumed Tax Liability" means, for any Person that is not a Pass
Through Entity for any period, an amount equal to the product of (a) the
Taxable Income allocated or attributable to such Person (directly or
through one or more tiers of Pass Through Entities) (net of taxable losses
allocated to such Person with respect to Wynn Las Vegas, the Completion
Guarantor or any of the Restricted Subsidiaries that (i) are, or were
previously, deductible by such Person and (ii) have not previously reduced
Taxable Income), and (b) the Presumed Tax Rate.
"Presumed Tax Rate" with respect to any Person for any period
means the highest effective combined United States federal, state and local
income tax rate applicable during such period to a corporation organized
under the laws of the State of Nevada, taxable at the highest marginal
United States federal income tax rate and the highest marginal state and
local income tax rates to which such Person is subject (after giving effect
to the United States federal income tax deduction for such state and local
income taxes, taking into account the effects of the alternative minimum
tax, such effects being calculated on the assumption that such Person's
only taxable income is the income allocated or attributable to such Person
for such period (directly or through one or more tiers of Pass Through
Entities) with respect to its equity interest in Wynn Las Vegas, the
Completion Guarantor or any of the Restricted Subsidiaries that is a Pass
Through Entity). In determining the Presumed Tax Rate, the character of the
items of income and gain comprising Taxable Income (e.g. ordinary income or
long term capital gain) shall be taken into account.
"Primary Note Collateral" means all Collateral, together with the
proceeds and products thereof (including, without limitation, the proceeds
of Asset Sales).
"Principal" means Stephen A. Wynn.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(1) hereof to be placed on all Notes issued under this Indenture
except where otherwise permitted by the provisions of this Indenture.
"Project Assets" means, with respect to the Projects at any time,
all of the assets then in use related to either the Phase I Project or the
Phase II Project including any real estate assets, any buildings or
improvements thereon, and all equipment, furnishings and fixtures, but
excluding any obsolete personal property determined by Wynn Capital's Board
of Directors to be no longer useful or necessary to the operations or
support of either the Phase I Project or the Phase II Project.
"Project Lease and Easement Agreements" means:
(1) the Golf Course Lease,
(2) the Dealership Lease Agreement,
(3) the Shuttle Easement Agreement, and
(4) the Access Easement Agreement.
in each case, as amended, modified or otherwise supplemented from time to
time in any manner that is not in contravention of Section 4.25 hereof.
"Project Related Indebtedness" means Indebtedness for borrowed
money incurred by Wynn Resorts, the proceeds of which are contributed,
directly or indirectly, as common equity capital to Wynn Las Vegas and its
Restricted Subsidiaries, so long as neither Issuer nor any Restricted
Subsidiary:
(1) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute
Indebtedness) as to such Indebtedness,
(2) is directly or indirectly liable as a guarantor or
otherwise as to such Indebtedness, or
(3) constitutes the lender of such Indebtedness.
"Project Site" means the approximately 235-acre site upon which
the Projects shall be located, together with all easements, licenses and
other rights running for the benefit of Wynn Las Vegas or any of the
Restricted Subsidiaries and/or appurtenant thereto, and all as more
particularly described in Exhibit G hereto.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Qualifying Project" means the gaming and/or hotel projects of
Wynn Resorts and its Subsidiaries which are operating or for which the
financing for the development, construction and opening thereof has been
obtained. For purposes of this definition, each of the Phase I Project, the
Phase II Project and the Macau Project shall count as separate projects.
"Qualified Equity Offering" means a bona fide offering of common
stock or preferred stock (other than Disqualified Stock) of Wynn Resorts,
or of securities convertible into, or exchangeable for, such common stock
or preferred stock (other than Disqualified Stock) of Wynn Resorts, which
results in gross proceeds to Wynn Resorts of at least $50.0 million, to the
extent that such gross receipts are contributed as a cash common equity
contribution to Wynn Las Vegas.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date of this Indenture, by and among, the
Issuers, the Guarantors and the Initial Purchasers, as such agreement may
be amended, modified or supplemented from time to time and, with respect to
Additional Notes, one or more registration rights agreements by and among
the Issuers, the Guarantors and the other parties thereto, as such
agreement(s) may be amended, modified or supplemented from time to time,
relating to rights given by the Issuers and the Guarantors to the
purchasers of Additional Notes to register such Additional Notes under the
Securities Act.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Global Note" means a Regulation S Temporary Global
Note or Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent Global Note
in the form of Exhibit A-1 hereto bearing the Global Note Legend and the
Private Placement Legend and deposited with or on behalf of and registered
in the name of the Depositary or its nominee, issued in a denomination
equal to the outstanding principal amount of the Regulation S Temporary
Global Note upon expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary Global Note
in the form of Exhibit A-2 hereto deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Notes
initially sold in reliance on Rule 903 of Regulation S.
"Related Party" means:
(1) any controlling stockholder, 80% (or more) owned
Subsidiary, or immediate family member (in the case of an individual)
of any Principal; or
(2) any trust, corporation, partnership, limited liability
company or other entity, the beneficiaries, stockholders, partners,
members, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of the Principal and/or such
other Persons referred to in the immediately preceding clause (1) or
this clause (2).
"Released Assets" means any item of Collateral for which
conditions to its release are expressly set forth in this Indenture or the
Collateral Documents (it being understood that conditions incorporated by
reference to the Credit Agreement or other documents shall be considered
expressly set forth for this purpose), and as to which such conditions have
been met, including, subject to meeting the applicable conditions, the Golf
Course Land, the funds securing the Completion Guarantee (initially, $50.0
million) and the funds deposited in the Liquidity Reserve Account
(initially, $30.0 million). Any such item of Collateral shall cease to be a
Released Asset in the event, and to the extent, that Wynn Las Vegas or any
of the Restricted Subsidiaries is required to grant a security interest
therein in favor of the Trustee to secure the Notes or a Note Guarantee
pursuant to Section 10.03 hereof.
"Responsible Officer," when used with respect to the Trustee,
means any officer within the corporate trust department of the Trustee
located at the Corporate Trust Office of the Trustee (or any successor
group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day distribution compliance
period as defined in Regulation S.
"Restricted Subsidiary" means any Subsidiary of Wynn Las Vegas
that is not an Unrestricted Subsidiary.
"Retail Facility" means an up to approximately 60,000 square foot
retail facility adjoining the Projects.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Secured Account" means the secured 2014 Notes Proceeds Account,
as such term is defined in the Disbursement Agreement and which is
established pursuant to the Disbursement Collateral Account Agreement, into
which the net proceeds of the Notes are required to be deposited on the
date of this Indenture.
"Second Mortgage Notes" means the 12% Second Mortgage Notes due 2010 of
the Issuers issued pursuant to an indenture, dated as of October 30, 2002.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreements" means:
(1) the Pledge and Security Agreement, dated as of the date
of this Indenture, among the Issuers, the Restricted Subsidiaries,
Wynn Resorts Holdings and the Collateral Agent, and
(2) any other guarantee and collateral agreement entered into
by either Issuer or any Restricted Subsidiary from time to time in
accordance with the provisions of this Indenture,
in each case, as amended, modified or otherwise supplemented from time to
time in accordance with their respective terms and with this Indenture and
the other Collateral Documents.
"S&P" means Standard & Poor's Rating Services, a division of the
McGraw Hill Companies, Inc., or any successor to its statistical rating
business, except that any reference to a particular rating by S&P shall be
deemed to be a reference to the corresponding rating by any such successor.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Shuttle Easement Agreement" means the Easement Agreement, dated
as of the date of this Indenture, between Wynn Golf and Wynn Las Vegas, as
amended, modified or otherwise supplemented from time to time in any manner
that is not in contravention of Section 4.25 hereof.
"Significant Restricted Subsidiary" means any Restricted
Subsidiary of Wynn Las Vegas if it (a) contributes at least 10% of Wynn Las
Vegas' and its Restricted Subsidiaries' total consolidated income from
continuing operations before income taxes, extraordinary items, or (b) owns
at least 10% of Wynn Las Vegas' and its Restricted Subsidiaries' total
assets on a consolidated basis.
"Solvent" means, when used with respect to any Person, as of any
date of determination:
(1) the amount of the "present fair saleable value" of the
assets of such Person shall, as of such date, exceeds the amount of
all "liabilities of such Person, contingent or otherwise," as of such
date, as such quoted terms are determined in accordance with
applicable federal and state laws governing determinations of the
insolvency of debtors,
(2) such Person does not reasonably expect that such person
may be unable to pay the liability of such Person on its debts as such
debts become absolute and matured,
(3) such Person shall not have, as of such date, an
unreasonably small amount of capital with which to conduct its
business,
(4) such Person shall be able to pay its undisputed debts
generally as they mature, and
(5) such Person is not insolvent within the meaning of any
applicable requirements of law.
In addition, for purposes of this definition, (a) "debt" means
liability on a "claim," and (b) "claim" means any (i) right to payment,
whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured or (ii) right to an equitable remedy
for breach of performance if such breach gives rise to a right to payment,
whether or not such right to an equitable remedy is reduced to judgment,
fixed, contingent, matured or unmatured, disputed, undisputed, secured or
unsecured.
"Stated Maturity" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which the
payment of interest or principal was scheduled to be paid in the
documentation governing such Indebtedness as of the date of this Indenture,
and shall not include any contingent obligations to repay, redeem or
repurchase any such interest or principal prior to the date originally
scheduled for the payment thereof.
"Stockholders Agreement" means that certain Stockholders
Agreement, dated as of April 11, 2002, by and among Stephen A. Wynn, Baron
Asset Fund and Aruze USA, as in effect on the date of this Indenture.
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association or other business entity of
which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency
and after giving effect to any voting agreement or stockholders'
agreement that effectively transfers voting power) to vote in the
election of directors, managers or trustees of the corporation,
association or other business entity is at the time owned or
controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person (or a combination thereof);
(2) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of
such Person or (b) the only general partners of which are that Person
or one or more Subsidiaries of that Person (or any combination
thereof); or
(3) any limited liability company (a) the manager or managing
member of which is such Person or a Subsidiary of such Person or (b)
the only members of which are that Person or one or more Subsidiaries
of that Person (or any combination thereof).
"Tax Amount" means, with respect to any period, (1) with respect
to any of Wynn Las Vegas, the Completion Guarantor or any of the Restricted
Subsidiaries that is a Pass Through Entity and in the case of any direct or
indirect Subsidiary of any of Wynn Las Vegas, the Completion Guarantor or
any of the Restricted Subsidiaries that is a Pass Through Entity, the
Presumed Tax Liability of such direct or indirect Subsidiary, and (2) with
respect to any of Wynn Las Vegas, the Completion Guarantor or any of their
respective subsidiaries that are Consolidated Members, the aggregate United
States federal income tax liability such Persons would owe for such period
if each was a corporation filing United States federal income tax returns
on a stand alone basis at all times during its existence and, if any of the
Consolidated Members files a consolidated or combined state income tax
return such that it is not paying its own state income taxes, then Tax
Amount shall also include the aggregate state income tax liability such
Consolidated Members would have paid for such period if each was a
corporation filing state income tax returns on a stand alone basis at all
times during its existence.
"Tax Indemnification Agreement" means the Tax Indemnification
Agreement, dated as of September 24, 2002, among Wynn Resorts, Valvino
Lamore, Stephen A. Wynn, Aruze USA, Baron Asset Fund, a Massachusetts
business trust, on behalf of the Baron Asset Fund Series, Baron Asset Fund,
a Massachusetts business trust, on behalf of the Baron Growth Fund Series,
and Kenneth R. Wynn Family Trust dated February 20, 1985.
"Taxable Income" means, with respect to any Person for any period,
the taxable income, if any, of such Person for such period for United
States federal income tax purposes as a result of such Persons equity
ownership of Wynn Las Vegas, the Completion Guarantor or any of the
Restrictive Subsidiaries that are Pass Through Entities for such period, so
long as all items of income, gain, loss or deduction required to be stated
separately pursuant to Section 703(a)(1) of the Code shall be included in
taxable income or loss.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Trustee" means the party named as such in the preamble to this
Indenture until a successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor serving
hereunder.
"Unrestricted Definitive Note" means a Definitive Note that does
not bear and is not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a Global Note that does not bear
and is not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means Wynn Completion Guarantor, LLC and
any other Subsidiary of Wynn Las Vegas, other than Wynn Capital, that is
designated by the Board of Directors of Wynn Capital as an Unrestricted
Subsidiary pursuant to a resolution of the Board of Directors (and any
Subsidiary of each such Unrestricted Subsidiary), but only to the extent
that such Subsidiary of Wynn Las Vegas (other than the Completion
Guarantor):
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or
understanding with either Issuer, any Restricted Subsidiary or any
Guarantor unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to such Person than
those that (a) might be obtained at the time from Persons who are not
Affiliates of such Person, (b) are Permitted Investments or
transactions permitted as Restricted Payments under Section 4.07
hereof, or (c) are Affiliate Transactions permitted under Section 4.11
hereof;
(3) is a Person with respect to which neither Issuer, nor any
Restricted Subsidiary nor any Guarantor has any direct or indirect
obligation (a) to subscribe for additional Equity Interests or (b) to
maintain or preserve such Person's financial condition or to cause
such Person to achieve any specified levels of operating results;
(4) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of either Issuer or any
Restricted Subsidiary, or any Guarantor; and
(5) has at least one director on its Board of Directors that
is not a director or executive officer of either Issuer, any
Restricted Subsidiary or any Guarantor and has at least one executive
officer that is not a director or executive officer of either Issuer,
any Restricted Subsidiary or any Guarantor.
Any designation of a Subsidiary of Wynn Las Vegas as an
Unrestricted Subsidiary shall be evidenced to the Trustee by filing with
the Trustee a certified copy of the resolution of Wynn Capital's Board of
Directors giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the preceding conditions and
was permitted by Section 4.07 hereof. If, at any time, any Unrestricted
Subsidiary of Wynn Las Vegas would fail to meet the preceding requirements
as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary of Wynn Las Vegas for purposes of this Indenture
and any Indebtedness of such Subsidiary shall be deemed to be incurred by a
Restricted Subsidiary of Wynn Las Vegas as of such date and, if such
Indebtedness is not permitted to be incurred as of such date under Section
4.09 hereof, Wynn Las Vegas shall be in default of such covenant. The Board
of Directors of Wynn Capital may at any time designate any Unrestricted
Subsidiary of Wynn Las Vegas to be a Restricted Subsidiary. Such
designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if (1) such
Indebtedness is permitted under Section 4.09 hereof calculated on a pro
forma basis as if such designation had occurred at the beginning of the
four-quarter reference period and (2) no Default or Event of Default would
be in existence following such designation.
"U.S. Person" means a U.S. Person as defined in Rule 902(k)
promulgated under the Securities Act.
"Valvino Lamore" means Valvino Lamore, LLC, a Nevada limited
liability company.
"Voting Stock" of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election
of the Board of Directors of such Person.
"Water Rights" means: (1) with respect to any Person, all of such
Person's right, title and interest in and to any water stock, permits or
entitlements and any other water rights related to or appurtenant to
property owned or leased by such Person, and (2) with respect to any
property, any water stock, permits or entitlements and any other water
rights related to or appurtenant to such property.
"Water Show Entertainment Production Agreement" means
collectively, (1) that certain Production Services Agreement, dated as of
October 31, 2002, between Wynn Las Vegas and Productions du Dragon, S.A.
("Dragon") and (2) that certain License Agreement, dated as of October 31,
2002, between Wynn Las Vegas and Calitri Services and Licensing Limited
Liability Company, as amended, modified or otherwise supplemented from time
to time in any manner not in contravention of Section 4.25 hereof.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial
maturity or other required payments of principal, including payment at
final maturity, in respect thereof, by (b) the number of years
(calculated to the nearest one-twelfth) that shall elapse between such
date and the making of such payment; by
(2) the then outstanding principal amount of such
Indebtedness.
"Wholly Owned Restricted Subsidiary" of any specified Person means
a Restricted Subsidiary of such Person all of the outstanding Capital Stock
or other ownership interests of which (other than directors' qualifying
shares) shall at the time be owned by such Person or by one or more Wholly
Owned Restricted Subsidiaries of such Person.
"Wholly Owned Subsidiary" of any specified Person means a
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person or by one or more Wholly Owned
Subsidiaries of such Person.
"Wynn Capital" means Wynn Las Vegas Capital Corp., a Nevada
corporation.
"Wynn Design" means Wynn Design & Development, LLC, a Nevada
limited liability company.
"Wynn Design Agreement" means the Amended and Restated Project
Administrative Services Agreement, dated as of the date of this Indenture,
between Wynn Las Vegas and Wynn Design, as amended, modified or otherwise
supplemented from time to time in any manner that is not in contravention
of Section 4.25 hereof.
"Wynn Golf" means Wynn Golf, LLC, a Nevada limited liability company.
"Wynn Home Site Land" means an approximately two acre tract of
land located on the Golf Course Land where a personal residence for Stephen
A. Wynn may be built, after the release of the Trustee's Liens (for the
benefit of the Holders) thereon in accordance with Section 10.03(e).
"Wynn IP Agreement" means the Intellectual Property License
Agreement, dated as of the date of this Indenture, among Wynn Resorts, Wynn
Resorts Holdings and Wynn Las Vegas.
"Wynn Las Vegas" means Wynn Las Vegas, LLC, a Nevada limited
liability company.
"Wynn Resorts" means Wynn Resorts, Limited, a Nevada corporation.
"Wynn Resorts Holdings" means Wynn Resorts Holdings, LLC, a Nevada
limited liability company.
"Wynn Show Performers" means Wynn Show Performers, LLC, a Nevada
limited liability company.
Section 1.02 Other Definitions.
Defined in
Term Section
---- -------
"Affiliate Transaction".............................. 4.11
"Asset Sale Offer"................................... 4.10
"Asset Sale Offer Amount"............................ 4.10
"Asset Sale Offer Repayment Amount".................. 4.10
"Authentication Order"............................... 2.02
"Beneficiary"........................................ 13.01
"Change of Control Offer"............................ 4.15
"Change of Control Payment".......................... 4.15
"Change of Control Payment Date"..................... 4.15
"Covenant Defeasance"................................ 8.03
"DTC"................................................ 2.03
"Event of Default"................................... 6.01
"Event of Loss Offer"................................ 4.16
"Event of Loss Offer Amount"......................... 4.16
"Event of Loss Offer Repayment Amount"............... 4.16
"Excess Loss Proceeds"............................... 4.16
"Excess Net Proceeds"................................ 4.10
"Excess Proceeds".................................... 4.10
"Excess Proceeds Offer".............................. 3.10
"incur".............................................. 4.09
"Legal Defeasance"................................... 8.02
"Note Obligations"................................... 13.01
"Offer Amount"....................................... 3.10
"Offer Period"....................................... 3.10
"Paying Agent"....................................... 2.03
"Payment Default".................................... 6.01
"Permitted Debt"..................................... 4.09
"Permitted Dispositions"............................. 1.01
"Phase III Project".................................. 10.03
"Purchase Date"...................................... 3.10
"Reference Period"................................... 4.09
"Refinancing"........................................ 10.03
"Registrar".......................................... 2.03
"Restricted Payments"................................ 4.07
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"Commission" means the SEC;
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes and the Note Guarantees means the Issuers
and the Guarantors, respectively, and any successor obligor upon the Notes
and the Note Guarantees, respectively.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule
under the TIA have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and transactions;
(7) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement of successor
sections or rules adopted by the SEC from time to time;
(8) references to any statute, law, rule or regulation shall
be deemed to refer to the same as from time to time amended and in
effect and to any successor statute, law, rule or regulation;
(9) references to any contract, agreement or instrument shall
mean the same as amended, modified, supplemented or amended and
restated from time to time, in each case, in accordance with any
applicable restrictions contained therein, in this Indenture or in any
Collateral Document, as the case may be; and
(10) the consummation by the Issuers and the Restricted
Subsidiaries on the date of this Indenture of the transactions
described in the Issuers' Offering Memorandum, dated as of November
22, 2004, relating to the offering of the Initial Notes under the
captions "Proposed Financing Transactions" and "Use of Proceeds,"
shall be deemed to occur concurrently.
ARTICLE 2.
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibits A-1 and A-2 hereto. The Notes
may have notations, legends or endorsements required by law, stock exchange
rule or usage. Each Note shall be dated the date of its authentication. The
Notes shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of this Indenture and the Issuers,
the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with
the express provisions of this Indenture, the provisions of this Indenture
shall govern and be controlling.
(b) Global Notes. Notes issued in global form shall be substantially
in the form of Exhibits A-1 and A-2 attached hereto (including the Global Note
Legend thereon and the "Schedule of Exchanges of Interests in the Global Note"
attached thereto), which Notes shall be deposited on behalf of the purchasers
of the Notes represented thereby with the Trustee, as Custodian for the
Depositary, and registered in the name of the Depositary or the nominee of the
Depositary. Notes issued in definitive form shall also be substantially in the
form of Exhibit A-1 attached hereto (but without the Global Note Legend thereon
and without the "Schedule of Exchanges of Interests in the Global Note"
attached thereto). Any Notes issued in global form and definitive form shall be
duly executed by the Issuers and authenticated by the Trustee as hereinafter
provided. Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it represents the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06 hereof.
(c) Temporary Global Notes. Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of the Regulation S
Temporary Global Note substantially in the form of Exhibit A-2 attached hereto,
which shall be deposited on behalf of the purchasers of the Notes represented
thereby with the Trustee, as custodian for the Depositary, and registered in
the name of the Depositary or the nominee of the Depositary for the accounts of
designated agents holding on behalf of Euroclear or Clearstream, duly executed
by the Issuers and authenticated by the Trustee as hereinafter provided. The
Restricted Period shall be terminated upon the receipt by the Trustee of:
(1) a written certificate from the Depositary, together
with copies of certificates from Euroclear and Clearstream
certifying that they have received certification of non-United
States beneficial ownership of 100% of the aggregate principal
amount of the Regulation S Temporary Global Note (except to the
extent of any beneficial owners thereof who acquired an interest
therein during the Restricted Period pursuant to another exemption
from registration under the Securities Act and who shall take
delivery of a beneficial ownership interest in a 144A Global Note
or an IAI Global Note bearing a Private Placement Legend, all as
contemplated by Section 2.06(b) hereof); and
(2) an Officers' Certificate from each of the Issuers.
Following the termination of the Restricted Period, beneficial
interests in the Regulation S Temporary Global Note shall be exchanged for
beneficial interests in the Regulation S Permanent Global Note pursuant to
the Applicable Procedures. Simultaneously with the authentication of the
Regulation S Permanent Global Note, the Trustee shall cancel the Regulation
S Temporary Global Note. The aggregate principal amount of the Regulation S
Temporary Global Note and the Regulation S Permanent Global Note may from
time to time be increased or decreased by adjustments made on the records
of the Trustee and the Depositary or its nominee, as the case may be, in
connection with transfers of interest as hereinafter provided.
(3) Euroclear and Clearstream Procedures Applicable. The
provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the
"General Terms and Conditions of Clearstream Banking" and
"Customer Handbook" of Clearstream shall be applicable to
transfers of beneficial interests in the Regulation S Temporary
Global Note and the Regulation S Permanent Global Note that are
held by Participants through Euroclear or Clearstream.
Section 2.02 Execution and Authentication.
A Designated Officer on behalf of each of Wynn Las Vegas and Wynn
Capital must sign the Notes for the Issuers by manual or facsimile
signature.
If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that
the Note has been authenticated under this Indenture.
The Trustee shall, upon receipt of a written order of the Issuers
signed by a Designated Officer of each of Wynn Las Vegas and Wynn Capital (an
"Authentication Order"), authenticate Notes for original issue that may be
validly issued under this Indenture, including any Additional Notes (including
Notes to be issued in substitution for outstanding Notes to reflect any name
change of either Issuer, by succession permitted hereunder or otherwise).
The aggregate principal amount of Notes outstanding at any time may
not exceed aggregate principal amount of Notes authorized for issuance by the
Issuers pursuant to one or more Authentication Orders, except as provided in
Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Issuers to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Issuers.
Section 2.03 Registrar and Paying Agent.
The Issuers shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and
exchange. The Issuers may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and
the term "Paying Agent" includes any additional paying agent. The Issuers may
change any Paying Agent or Registrar without notice to any Holder. The Issuers
shall notify the Trustee in writing of the name and address of any Agent not a
party to this Indenture. If the Issuers fail to appoint or maintain another
entity as Registrar or Paying Agent, the Trustee shall act as such. Either or
both of the Issuers or any of their Subsidiaries may act as Paying Agent or
Registrar.
The Issuers initially appoint The Depository Trust Company ("DTC")
to act as Depositary with respect to the Global Notes.
The Issuers initially appoint the Trustee to act as the Registrar
and Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Issuers shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, or interest on the Notes, and
shall notify the Trustee of any default by the Issuers in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Issuers at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Issuers or a
Subsidiary thereof) shall have no further liability for the money. If either
Issuer or a Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Issuers, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Issuers shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Issuers shall otherwise comply with TIA ss. 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes shall be exchanged
by the Issuers for Definitive Notes if:
(1) Wynn Las Vegas delivers to the Trustee written notice
from the Depositary that it is unwilling or unable to continue to act
as Depositary or that it is no longer a clearing agency registered
under the Exchange Act and, in either case, a successor Depositary is
not appointed by Wynn Las Vegas within 120 days after the date of such
notice from the Depositary;
(2) the Issuers in their sole discretion determine that the
Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and delivers a written notice to such effect to the
Trustee; provided that in no event shall the Regulation S Temporary
Global Note be exchanged by the Issuers for Definitive Notes prior to
(A) the expiration of the Restricted Period and (B) the receipt by the
Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act; or
(3) following the occurrence and during the continuation of a
Default or Event of Default, any Person having a beneficial interest
in a Global Note requests that the Global Notes should be exchanged
for Definitive Notes and delivers a written notice to such effect to
the Trustee.
Upon the occurrence of either of the preceding events in (1) or
(2) above, Definitive Notes shall be issued in such names as the Depositary
shall instruct the Trustee. Global Notes also may be exchanged or replaced,
in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every
Note authenticated and delivered in exchange for, or in lieu of, a Global
Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07
or 2.10 hereof, shall be authenticated and delivered in the form of, and
shall be, a Global Note. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.06(a). However, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
The transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with
either subparagraph (1) or (2) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend;
provided, however, that prior to the expiration of the Restricted
Period, transfers of beneficial interests in the Regulation S
Temporary Global Note may not be made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial
Purchasers). Beneficial interests in any Unrestricted Global Note may
be transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders
or instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.06(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(1) above,
the transferor of such beneficial interest must deliver to the
Registrar either:
(A) both:
(i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be
transferred or exchanged; and
(ii) instructions given in accordance with the
Applicable Procedures containing information regarding the
Participant account to be credited with such increase; or
(B) both:
(i) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be
issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged; and
(ii) instructions given by the Depositary to the
Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect
the transfer or exchange referred to in (1) above;
provided that in no event shall Definitive Notes be issued
upon the transfer or exchange of beneficial interests in the
Regulation S Temporary Global Note prior to (A) the
expiration of the Restricted Period and (B) the receipt by
the Registrar of any certificates required pursuant to Rule
903 under the Securities Act.;
Upon consummation of an Exchange Offer by the Issuers and the Guarantors in
accordance with Section 2.06(f) hereof, the requirements of this Section
2.06(b)(2) shall be deemed to have been satisfied upon receipt by the
Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted
Global Notes. Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in this
Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global
Note(s) pursuant to Section 2.06(h) hereof.
(3) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may
be transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(2) above and the
Registrar receives the following:
(A) if the transferee shall take delivery in the form
of a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item (1) thereof;
(B) if the transferee shall take delivery in the form
of a beneficial interest in the Regulation S Temporary Global
Note or the Regulation S Permanent Global Note, then the
transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item (2) thereof;
and
(C) if the transferee shall take delivery in the form
of a beneficial interest in the IAI Global Note, then the
transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if
applicable.
(4) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in an Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may
be exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(2) above and:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee,
in the case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (i) a Broker-Dealer, (ii) a
Person participating in the distribution of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in
Rule 144) of either of the Issuers;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in an
Unrestricted Global Note, a certificate from such
holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(ii) if the holder of such beneficial interest
in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take
delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note, a certificate from
such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph
(D), if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that
such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with
the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or
(D) above at a time when an Unrestricted Global Note has not yet been
issued, the Issuers shall issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the aggregate principal amount of beneficial
interests transferred pursuant to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the
form of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(1) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements
of the Securities Act in accordance with Rule 144, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B)
through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3) thereof, if
applicable;
(F) if such beneficial interest is being transferred
to the Issuers or any of their Subsidiaries, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Issuers shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in
the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this
Section 2.06(c) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are
so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)(1)
shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(2) Beneficial Interests in Regulation S Temporary Global
Note to Definitive Notes. Notwithstanding Sections 2.06(c)(1)(A) and
(C) hereof, a beneficial interest in the Regulation S Temporary Global
Note may not be exchanged for a Definitive Note or transferred to a
Person who takes delivery thereof in the form of a Definitive Note
prior to (A) the expiration of the Restricted Period and (B) the
receipt by the Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act, except in the case of a
transfer pursuant to an exemption from the registration requirements
of the Securities Act other than Rule 903 or Rule 904.
(3) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal
that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or
(iii) a Person who is an affiliate (as defined in Rule 144)
of the Issuers;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such
beneficial interest for an Unrestricted Definitive
Note, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item
(1)(b) thereof; or
(ii) if the holder of such beneficial interest
in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take
delivery thereof in the form of an Unrestricted
Definitive Note, a certificate from such holder in the
form of Exhibit B hereto, including the certifications
in item (4) thereof;
and, in each such case set forth in this subparagraph
(D), if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain
compliance with the Securities Act.
(4) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.06(b)(2) hereof, the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly
pursuant to Section 2.06(h) hereof, and the Issuers shall execute and
the Trustee shall authenticate and deliver to the Person designated in
the instructions a Definitive Note in the appropriate principal
amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(4) shall be registered in
such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest requests
through instructions to the Registrar from or through the Depositary
and the Participant or Indirect Participant. The Trustee shall deliver
such Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(4) shall not bear the
Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(1) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive Notes
to a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in
item (2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction
in accordance with Rule 903 or Rule 904, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements
of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required
by item (3) thereof, if applicable;
(F) if such Restricted Definitive Note is being
transferred to the Issuers or any of their Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note,
increase or cause to be increased the aggregate principal
amount of, in the case of clause (A) above, the
appropriate Restricted Global Note, in the case of clause
(B) above, the 144A Global Note, in the case of clause
(C) above, the Regulation S Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Restricted Definitive Note to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is
an affiliate (as defined in Rule 144) of either of the
Issuers;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(c)
thereof; or
(ii) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph
(D), if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(2), the Trustee shall cancel
the Definitive Notes and increase or cause to be increased the
aggregate principal amount of the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note
to a beneficial interest is effected pursuant to subparagraphs
(2)(B), (2)(D) or (3) above at a time when an Unrestricted Global
Note has not yet been issued, the Issuers shall issue and, upon
receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of
transfer or exchange, the requesting Holder must present or surrender to the
Registrar the Definitive Notes duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed by
such Holder or by its attorney, duly authorized in writing. In addition, the
requesting Holder must provide any additional certifications, documents and
information, as applicable, required pursuant to the following provisions of
this Section 2.06(e).
(1) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the
form of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer shall be made pursuant to Rule
144A, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in
item (1) thereof;
(B) if the transfer shall be made pursuant to Rule 903
or Rule 904, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications
in item (2) thereof; and
(C) if the transfer shall be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required
by item (3) thereof, if applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is
an affiliate (as defined in Rule 144) of either of the
Issuers;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted Definitive
Notes proposes to exchange such Notes for an
Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(ii) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph
(D), if the Registrar so requests, an Opinion of
Counsel in form reasonably acceptable to the Registrar
to the effect that such exchange or transfer is in
compliance with the Securities Act and that the
restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Issuers shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate:
(1) one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes accepted for exchange in the
Exchange Offer by Persons that certify in the applicable Letters of
Transmittal that (A) they are not Broker-Dealers, (B) they are not
participating in a distribution of the Exchange Notes and (C) they are
not affiliates (as defined in Rule 144) of the Issuers and
(2) Unrestricted Definitive Notes in an aggregate principal
amount equal to the principal amount of the Restricted Definitive
Notes accepted for exchange in the Exchange Offer by Persons that
certify in the applicable Letters of Transmittal that (A) they are not
Broker-Dealers, (B) they are not participating in a distribution of
the Exchange Notes and (C) they are not affiliates (as defined in Rule
144) of the Issuers.
Concurrently with the issuance of such Notes, the Trustee shall
cause the aggregate principal amount of the applicable Restricted Global
Notes to be reduced accordingly, and the Issuers shall execute and the
Trustee shall authenticate and deliver to the Persons designated by the
Holders of Definitive Notes so accepted Unrestricted Definitive Notes in
the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(1) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below,
each Global Note and each Definitive Note (and all Notes
issued in exchange therefor or substitution thereof) shall
bear the legend in substantially the following form:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") AND, ACCORDINGLY, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT
IS NOT A U.S. PERSON, IS NOT ACQUIRING THIS NOTE FOR THE ACCOUNT OR BENEFIT
OF A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3)
OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "IAI"), (2) AGREES
THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k)
(TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) UNDER THE SECURITIES
ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF
THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A PERSON WHOM THE
HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QIB IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE),
(E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
THE REGISTRATION OF TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE) AND AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE OR ANY INTEREST HEREIN
WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF
SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES
ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING
RESTRICTIONS."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(4),
(c)(3), (c)(4), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this
Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement
Legend.
(2) Global Note Legend. Each Global Note shall bear a legend
in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a)
OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE ISSUERS.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY
OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK,
NEW YORK) ("DTC"), TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN."
(3) Regulation S Temporary Global Note Legend. The Regulation
S Temporary Global Note shall bear a Legend in substantially the
following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES,
ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER
NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL
BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to
or retained and canceled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who shall take delivery
thereof in the form of a beneficial interest in another Global Note or for
Definitive Notes, the principal amount of Notes represented by such Global Note
shall be reduced accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such reduction; and if the beneficial interest is being exchanged for
or transferred to a Person who shall take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect
such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the
Issuers shall execute and the Trustee shall authenticate Global Notes
and Definitive Notes upon receipt of an Authentication Order in
accordance with Section 2.02 or at the Registrar's request.
(2) No service charge shall be made to a Holder of a Global
Note or to a Holder of a Definitive Note for any registration of
transfer or exchange, but the Issuers may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 3.06, 3.10, 4.10, 4.15, 4.16 and 9.05 hereof).
(3) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(4) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Issuers, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(5) Neither the Registrar nor the Issuers shall be required:
(A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening
of business 15 days before the day of any selection of Notes
for redemption under Section 3.02 hereof and ending at the
close of business on the day of selection;
(B) to register the transfer of or to exchange any
Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a Note
between a record date and the next succeeding interest
payment date.
(6) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Issuers may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes,
and none of the Trustee, any Agent or the Issuers shall be affected by
notice to the contrary.
(7) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(8) All certifications and certificates required to be
submitted to the Registrar pursuant to this Section 2.06 to effect a
registration of transfer or exchange may be submitted by facsimile.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Issuers
and the Trustee receives evidence to its satisfaction of the destruction,
loss or theft of any Note, the Issuers shall issue and the Trustee, upon
receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee's requirements are met. If required by the Trustee or the
Issuers, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Issuers to protect the
Issuers, the Trustee, any Agent and any authenticating agent from any loss
that any of them may suffer if a Note is replaced. The Issuers may charge
for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Issuers
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated
by the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by
the Trustee in accordance with the provisions hereof, and those described
in this Section 2.08 as not outstanding. Except as set forth in Section
2.09 hereof, a Note does not cease to be outstanding because the Issuers or
an Affiliate of either Issuer holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that
the replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases
to accrue.
If the Paying Agent (other than an Issuer, a Subsidiary of an
Issuer or an Affiliate of any thereof) holds, on a redemption date or
maturity date, money sufficient to pay Notes payable on that date, then on
and after that date such Notes shall be deemed to be no longer outstanding
and shall cease to accrue interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes
owned by the Issuers, or any of their Affiliates, shall be considered as
though not outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, waiver or
consent, only Notes that the Trustee knows are so owned shall be so
disregarded.
Section 2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Issuers may prepare and the Trustee, upon receipt of an Authentication
Order, shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of certificated Notes but may have variations
that the Issuers consider appropriate for temporary Notes and as may be
reasonably acceptable to the Trustee. Without unreasonable delay, the
Issuers shall prepare and the Trustee shall authenticate Definitive Notes
in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
Section 2.11 Cancellation.
The Issuers at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation
and shall destroy canceled Notes in its customary manner (subject to the
record retention requirement of the Exchange Act). Certification of the
destruction of all canceled Notes shall be delivered to the Issuers. The
Issuers may not issue new Notes to replace Notes that they have paid or
that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Issuers default in a payment of interest on the Notes, they
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case, at the rate
provided in the Notes and in Section 4.01 hereof. The Issuers shall notify
the Trustee in writing of the amount of defaulted interest proposed to be
paid on each Note and the date of the proposed payment. The Issuers shall
fix or cause to be fixed each such special record date and payment date,
provided that no such special record date may be less than 10 days prior to
the related payment date for such defaulted interest. At least 15 days
before the special record date, the Issuers (or, upon the written request
of the Issuers, the Trustee in the name and at the expense of the Issuers)
shall mail or cause to be mailed to Holders a notice that states the
special record date, the related payment date and the amount of such
interest to be paid.
Section 2.13 Issuance of Additional Notes.
The Issuers will be entitled, upon delivery of an Officers'
Certificate, Opinion of Counsel and Authentication Order, subject to
compliance with Sections 2.02, 4.09 and 4.12 hereof, to issue Additional
Notes under this Indenture, which shall have identical terms as the Initial
Notes issued on the date of this Indenture, other than with respect to the
date of issuance, the initial date from which interest shall accrue on such
Additional Notes and issue price. Subject to Sections 4.09 and 4.12 hereof,
without the consent of any Holder of Notes, the Issuers will be entitled to
make any amendments to this Indenture, the Note Guarantees or any of the
Collateral Documents as they reasonably determine appropriate in good faith
to facilitate the issuance of such Additional Notes.
With respect to any Additional Notes, the Issuers will set forth
in a resolution of the Board of Directors of Wynn Capital and an Officers'
Certificate, a copy of each which shall be delivered to the Trustee, the
following information:
(a) the aggregate principal amount of such Additional Notes to be
authenticated and delivered pursuant to this Indenture; and
(b) which such Additional Notes shall be Notes issued in the form of
Restricted Global Notes or Restricted Definitive Notes, as the case may be,
or shall be Notes issued in the form of Unrestricted Global Notes or
Unrestricted Definitive Notes, as the case may be.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Issuers elect to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, they must furnish to the
Trustee, at least 30 days but not more than 60 days before a redemption
date, an Officers' Certificate setting forth:
(a) the clause of this Indenture pursuant to which the redemption
shall occur;
(b) the redemption date;
(c) the principal amount of Notes to be redeemed; and
(d) the redemption price.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in
an offer to purchase at any time, the Trustee shall select Notes for
redemption or purchase as follows:
(a) if the Notes are listed on any national securities exchange, in
compliance with the requirements of the principal national securities exchange
on which the Notes are listed; or
(b) if the Notes are not listed on any national securities exchange,
on a pro rata basis, by lot or by such method as the Trustee shall deem fair
and appropriate.
In the event of partial redemption or purchase by lot, the
particular Notes to be redeemed or purchased shall be selected, unless
otherwise provided herein, not less than 30 nor more than 60 days prior to
the redemption or purchase date by the Trustee from the outstanding Notes
not previously called for redemption or purchase.
The Trustee shall promptly notify the Issuers in writing of the
Notes selected for redemption or purchase and, in the case of any Note
selected for partial redemption or purchase, the principal amount thereof
to be redeemed or purchased. Notes and portions of Notes selected shall be
in amounts of $1,000 or whole multiples of $1,000; provided, however, that
if all of the Notes of a Holder are to be redeemed or purchased, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed or purchased. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for
redemption or purchase also apply to portions of Notes called for
redemption or purchase.
Section 3.03 Notice of Redemption.
Subject to the provisions of Section 3.10 hereof, at least 30 days
but not more than 60 days before a redemption date, the Issuers shall mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address, except
that redemption notices may be mailed more than 60 days prior to a
redemption date if the notice is issued in connection with a defeasance of
the Notes or a satisfaction and discharge of this Indenture pursuant to
Articles 8 or 12 of this Indenture.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal amount equal
to the unredeemed portion shall be issued upon cancellation of the original
Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Issuers default in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Issuers' request, the Trustee shall give the notice of
redemption in the Issuers' name and at their expense; provided, however,
that the Issuers have delivered to the Trustee, at least 45 days prior to
the redemption date, an Officers' Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such
notice as provided in the preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable
on the redemption date at the redemption price. A notice of redemption may
not be conditional. If mailed in the manner provided in Section 3.03
hereof, the notice of redemption shall be conclusively presumed to have
been given whether or not the Holder receives such notice.
Section 3.05 Deposit of Redemption or Purchase Price.
One Business Day prior to the redemption or purchase price date,
the Issuers shall deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption or purchase price of and accrued interest
and premium and Liquidated Damages, if any, on all Notes to be redeemed or
purchased on that date. The Trustee or the Paying Agent shall promptly
return to the Issuers any money deposited with the Trustee or the Paying
Agent by the Issuers in excess of the amounts necessary to pay the
redemption or purchase price of, and accrued interest and premium and
Liquidated Damages, if any, on, all Notes to be redeemed or purchased.
If the Issuers comply with the provisions of the preceding
paragraph, on and after the redemption or purchase date, interest shall
cease to accrue on the Notes or the portions of Notes called for redemption
or purchase. If a Note is redeemed or purchased on or after an interest
record date but on or prior to the related interest payment date, then any
accrued and unpaid interest shall be paid to the Person in whose name such
Note was registered at the close of business on such record date. If any
Note called for redemption or purchase is not so paid upon surrender for
redemption or purchase because of the failure of the Issuers to comply with
the preceding paragraph, interest shall be paid on the unpaid principal,
from the redemption or purchase date until such principal is paid, and to
the extent lawful on any interest not paid on such unpaid principal, in
each case at the rate provided in the Notes and in Section 4.01 hereof.
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part,
the Issuers shall issue and, upon receipt of an Authentication Order, the
Trustee shall authenticate for the Holder at the expense of the Issuers a
new Note equal in principal amount to the unredeemed or unpurchased portion
of the Note surrendered.
Section 3.07 Optional Redemption.
(a) At any time prior to December 1, 2007, the Issuers may, on any one
or more occasions, redeem up to 35% of the aggregate principal amount of Notes
issued under this Indenture at a redemption price of 106.625% of the principal
amount redeemed, plus accrued and unpaid interest and Liquidated Damages, if
any, thereon to the redemption date, with the net cash proceeds of one or more
Qualified Equity Offerings of Wynn Resorts that are contributed to Wynn Las
Vegas, so long as:
(1) at least 65% of the aggregate principal amount of Notes
issued under this Indenture remains outstanding immediately after the
occurrence of such redemption; and
(2) the redemption must occur within 60 days of the date of
the closing of such Qualified Equity Offering.
(b) Except pursuant to Section 3.07(a) and Section 3.09, the Notes are
not redeemable at the Issuers' option prior to December 1, 2009.
(c) On or after December 1, 2009, the Issuers may redeem all or a part
of the Notes upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of principal amount) set forth
below plus accrued and unpaid interest and Liquidated Damages, if any, on the
Notes redeemed, to the applicable redemption date, if redeemed during the
twelve-month period beginning on December 1 of the years indicated below:
Year Percentage
---- ----------
2009.................................................. 103.313%
2010.................................................. 102.208%
2011 ................................................. 101.104%
2012 and thereafter................................... 100.000%
(d) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
Section 3.08 Mandatory Redemption.
Other than as set forth in Section 3.09 below, the Issuers are not
required to make mandatory redemption or sinking fund payments with respect
to the Notes.
Section 3.09 Mandatory Disposition or Redemption Pursuant to Gaming Laws.
Notwithstanding any other provision hereof, if any Gaming
Authority requires a Holder or Beneficial Owner of Notes to be licensed,
qualified or found suitable under any applicable Gaming Law and the Holder
or Beneficial Owner (1) fails to apply for a license, qualification or
finding of suitability within 30 days after being requested to do so (or
such lesser period as required by the Gaming Authority), or (2) is notified
by a Gaming Authority that it shall not be licensed, qualified or found
suitable, the Issuers shall have the right, at their option, to:
(a) require the Holder or Beneficial Owner to dispose of its Notes
within 30 days (or such lesser period as required by the Gaming Authority)
following the earlier of:
(1) the termination of the period described above for the
Holder or Beneficial Owner to apply for a license, qualification or
finding of suitability; or
(2) the receipt of the notice from the Gaming Authority that
the Holder or Beneficial Owner shall not be licensed, qualified or
found suitable by the Gaming Authority; or
(b) redeem the Notes of the Holder or Beneficial Owner at a redemption
price equal to:
(1) the price required by applicable law or by order of any
Gaming Authority; or
(2) the lesser of:
(A) the principal amount of the Notes; and
(B) the price that the Holder or Beneficial Owner paid
for the Notes,
in each case, together with accrued and unpaid interest and Liquidated
Damages, if any, on the Notes to the earlier of (1) the date of redemption
or such earlier date as is required by the Gaming Authority or (2) the date
of the finding of unsuitability by the Gaming Authority, which may be less
than 30 days following the notice of redemption. The Issuers shall notify
the Trustee in writing of any redemption pursuant to this Section 3.09 as
soon as reasonably practicable.
Immediately upon a determination by a Gaming Authority that a
Holder or Beneficial Owner of Notes shall not be licensed, qualified or
found suitable, the Holder or Beneficial Owner shall not have any further
rights with respect to the Notes to:
(a) exercise, directly or indirectly, through any Person, any
right conferred by the Notes; or
(b) receive any interest or any other distribution or payment with
respect to the Notes, or any remuneration in any form from the Issuers for
services rendered or otherwise, except the redemption price of the Notes.
The Issuers are not required to pay or reimburse any Holder or
Beneficial Owner of Notes who is required to apply for such license,
qualification or finding of suitability for the costs relating thereto.
Those expenses shall be the obligation of the Holder or Beneficial Owner.
Section 3.10 Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 or 4.16 hereof, Wynn
Las Vegas is required to commence an Asset Sale Offer or an Event of Loss
Offer (each Asset Sale Offer or Event of Loss Offer is referred to in this
Section 3.10 as an "Excess Proceeds Offer"), it shall follow the procedures
specified below.
The Excess Proceeds Offer shall be made to all Holders and any
holders of Pari Passu Debt. The Excess Proceeds Offer shall remain open for
a period of at least 20 Business Days following its commencement and not
more than 30 Business Days, except to the extent that a longer period is
required by applicable law (the "Offer Period"). No later than three
Business Days after the termination of the Offer Period (the "Purchase
Date"), Wynn Las Vegas shall apply all Excess Proceeds (the "Offer Amount")
to the purchase of Notes and any such Pari Passu Debt to be purchased (on a
pro rata basis, if applicable) or, if less than the Offer Amount has been
tendered, all Notes and any such Pari Passu Debt tendered in response to
the Excess Proceeds Offer. Payment for any Notes so purchased shall be made
in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on
or before the related interest payment date, any accrued and unpaid
interest and Liquidated Damages, if any, shall be paid to the Person in
whose name a Note is registered at the close of business on such record
date, and no additional interest shall be payable to Holders who tender
Notes pursuant to the Excess Proceeds Offer.
Wynn Las Vegas shall provide the Trustee with notice of the Excess
Proceeds Offer at least 10 days (or such lesser time as the Trustee shall
permit) prior to its commencement. Upon the commencement of an Excess
Proceeds Offer, Wynn Las Vegas shall send, by first class mail, a notice to
each of the Holders, with a copy to the Trustee. The notice shall contain
all instructions and materials necessary to enable such Holders to tender
Notes pursuant to the Excess Proceeds Offer. The notice, which shall govern
the terms of the Excess Proceeds Offer, shall state:
(a) that the Excess Proceeds Offer is being made pursuant to this
Section 3.10 and Section 4.10 or Section 4.16 hereof, as appropriate, and the
length of time the Excess Proceeds Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue
to accrue interest;
(d) that, unless Wynn Las Vegas defaults in making such payment, any
Note accepted for payment pursuant to the Excess Proceeds Offer shall cease to
accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an
Excess Proceeds Offer may elect to have Notes purchased in integral multiples
of $1,000 only;
(f) that Holders electing to have a Note purchased pursuant to any
Excess Proceeds Offer shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" attached to the Notes completed,
or transfer by book-entry transfer, to Wynn Las Vegas, the Depositary, if
appointed by Wynn Las Vegas, or a Paying Agent at the address specified in the
notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if Wynn
Las Vegas, the Depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased; provided that,
with respect to Notes that have been tendered using the procedure for
book-entry transfer, any such notice of withdrawal shall specify the name
number of the account at The Depository Trust Company to be credited with the
withdrawn Notes and shall otherwise comply with the procedures of the
book-entry transfer facility;
(h) that, if the aggregate principal amount of Notes surrendered by
Holders and Pari Passu Debt surrendered by holders thereof exceeds the Offer
Amount, Wynn Las Vegas shall select the Notes and such Pari Passu Debt to be
purchased, on a pro rata basis, based on the principal amount of Notes and such
Pari Passu Debt surrendered (with such adjustments as may be deemed appropriate
by Wynn Las Vegas so that only Notes in denominations of $1,000, or integral
multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, Wynn Las Vegas shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent
necessary, the Offer Amount of Notes and, if applicable, Pari Passu Debt,
or portions thereof tendered pursuant to the Excess Proceeds Offer, or if
less than the Offer Amount has been tendered, all Notes and if applicable,
Pari Passu Debt, tendered, and shall deliver or caused to be delivered to
the Trustee the Notes properly accepted together with an Officers'
Certificate stating that such Notes and, if applicable, Pari Passu Debt, or
portions thereof were accepted for payment by Wynn Las Vegas in accordance
with the terms of this Section 3.10. Wynn Las Vegas, the Depositary or the
Paying Agent, as the case may be, shall promptly (but in any case not later
than five days after the Purchase Date) mail or deliver to each tendering
Holder an amount equal to the purchase price of the Notes tendered by such
Holder and accepted by Wynn Las Vegas for purchase, and Wynn Las Vegas
shall promptly issue a new Note, and the Trustee, upon written request from
Wynn Las Vegas shall authenticate and mail or deliver such new Note to such
Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or delivered
by Wynn Las Vegas to the Holder thereof. Wynn Las Vegas shall publicly
announce the results of the Excess Proceeds Offer on the Purchase Date.
Other than as specifically provided in this Section 3.10, any
purchase pursuant to this Section 3.10 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes.
The Issuers shall pay or cause to be paid the principal of,
premium, if any, and interest and Liquidated Damages, if any, on the Notes
on the dates and in the manner provided in the Notes. Principal, premium,
if any, and interest and Liquidated Damages, if any, shall be considered
paid on the date due if the Paying Agent, if other than the Issuers or a
Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by the Issuers in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and
interest then due. The Issuers shall pay all Liquidated Damages, if any, in
the same manner on the dates and in the amounts set forth in the
Registration Rights Agreement.
The Issuers shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest rate
on the Notes to the extent lawful; they shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Liquidated Damages (without regard to
any applicable grace period) at the same rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Issuers shall maintain in the Borough of Manhattan, the City
of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices
and demands to or upon the Issuers in respect of the Notes and this
Indenture may be served. The Issuers shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Issuers fail to maintain any such required
office or agency or fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served
at the Corporate Trust Office of the Trustee.
The Issuers may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any
manner relieve the Issuers of their obligation to maintain an office or
agency in the Borough of Manhattan, the City of New York for such purposes.
The Issuers shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such
other office or agency.
The Issuers hereby designate the Corporate Trust Office of the
Trustee as one such office or agency of the Issuers in accordance with
Section 2.03 hereof.
Section 4.03 Reports.
(a) Whether or not required by rules and regulations of the SEC, so
long as any Notes are outstanding, the Issuers shall furnish to the Holders of
Notes or cause the Trustee to furnish to Holders of Notes, within the time
periods specified in the SEC's rules and regulations:
(1) all quarterly and annual reports that would be required
to be filed with the SEC on Forms 10-Q and 10-K, including a
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" and, with respect to the annual report only, a
report on the annual financial statements by Wynn Las Vegas' and the
Restricted Subsidiaries' certified independent accountants; and
(2) all current reports that would be required to be filed
with the SEC on Form 8-K if the Issuers were required to file such
reports.
All such reports shall be prepared in all material respects in accordance
with all of the rules and regulations applicable to such reports. Each
annual report on Form 10-K shall include a report on Wynn Las Vegas' and
its Restricted Subsidiaries consolidated financial statements by Wynn Las
Vegas' certified independent accountants. In addition, following the
consummation of the Exchange Offer contemplated by the Registration Rights
Agreement, Wynn Las Vegas shall file a copy of each of the reports referred
to in clauses (1) and (2) above with the SEC for public availability within
the time periods specified in the rules and regulations applicable to such
reports (unless the SEC will not accept such a filing) and shall post the
reports on its website within those time periods.
(b) If, at any time after consummation of the Exchange Offer
contemplated by the Registration Rights Agreement, Wynn Las Vegas is no longer
subject to the periodic reporting requirements of the Exchange Act for any
reason, Wynn Las Vegas shall nevertheless continue filing the reports specified
in Section 4.03(a) above with the SEC within the time periods specified above
unless the SEC will not accept such a filing. Wynn Las Vegas shall not take any
action for the purpose of causing the SEC not to accept any such filings. If,
notwithstanding the foregoing, the SEC will not accept Wynn Las Vegas' filings
for any reason, Wynn Las Vegas shall post the reports referred to in the
preceding paragraphs on its website within the time periods that would apply if
Wynn Las Vegas were required to file those reports with the SEC.
(c) In addition, the Issuers and the Guarantors agree that, for so
long as any Notes remain outstanding, if at any time they are not required to
file with the SEC the reports required by Section 4.03(a) above, they shall
furnish to the holders of notes and to securities analysts and prospective
investors, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of reports, information and documents to the Trustee
under this Section 4.03 is for informational purposes only and the Trustee's
receipt of the foregoing shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein.
Section 4.04 Compliance Certificate.
(a) The Issuers and, each Guarantor (to the extent that such Guarantor
is so required under the TIA) shall deliver to the Trustee, within 90 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Issuers and their respective Subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Issuers have kept,
observed, performed and fulfilled its obligations under this Indenture and the
Collateral Documents, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Issuers have kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and the Collateral Documents and are not in default in the
performance or observance of any of the terms, provisions and conditions of
this Indenture or the Collateral Documents (or, if a Default or Event of
Default has occurred, describing all such Defaults or Events of Default of
which he or she may have knowledge and what action the Issuers are taking or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Issuers are taking or propose to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by
a written statement of the Issuers' independent public accountants (who shall
be a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Issuers have violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) So long as any of the Notes are outstanding, the Issuers shall
deliver to the Trustee, forthwith upon any Officer becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such Default
or Event of Default and what action the Issuers are taking or proposes to take
with respect thereto.
Section 4.05 Taxes.
The Issuers shall pay, and shall cause each of their respective
Subsidiaries to pay, prior to delinquency, all material taxes, assessments,
and governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
Section 4.06 Stay, Extension and Usury Laws.
The Issuers and each of the Guarantors covenant (to the extent
that they may lawfully do so) that they shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of
this Indenture; and each Issuer and each of the Guarantors (to the extent
that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to
any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every
such power as though no such law has been enacted.
Section 4.07 Restricted Payments.
(a) Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or
distribution on account of any Equity Interests of Wynn Las Vegas or
any of its Restricted Subsidiaries or to the direct or indirect
holders of any Equity Interests of Wynn Las Vegas or any of its
Restricted Subsidiaries in their capacity as such, other than (i)
dividends or distributions by Wynn Las Vegas payable in Equity
Interests (other than Disqualified Stock) of Wynn Las Vegas and (ii)
dividends or distributions payable to Wynn Las Vegas or any of its
Restricted Subsidiaries;
(2) purchase, redeem or otherwise acquire or retire for value
any Equity Interests of Wynn Las Vegas, any direct or indirect parent
of Wynn Las Vegas (including, without limitation, Wynn Resorts) or any
other direct or indirect Subsidiary of Wynn Resorts;
(3) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any
Indebtedness of Wynn Las Vegas or any Guarantor that is secured by a
Lien junior to the Lien securing the Notes or the Guarantees or that
is expressly subordinated in right of payment to the Notes or the Note
Guarantees under this Indenture (excluding any intercompany
Indebtedness between or among Wynn Las Vegas or any of its Restricted
Subsidiaries), except a payment of interest or principal at the Stated
Maturity thereof; or
(4) make any Restricted Investment (all such payments and
other actions set forth in clauses (1) through (4) above being
collectively referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted Payment:
(1) the Phase I Opening Date has occurred; and
(2) no Default or Event of Default has occurred and is
continuing or would occur as a consequence of such Restricted Payment;
and
(3) Wynn Las Vegas would, at the time of such Restricted
Payment and after giving pro forma effect thereto, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof;
and
(4) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by Wynn Las Vegas and its
Restricted Subsidiaries after the date of this Indenture (excluding
Restricted Payments permitted by clauses (2), (3), (5), (7), (8), (9),
(11) and (12) below (with respect to clause (5) to the extent such
Restricted Payments were already deducted from Consolidated Net
Income) of Section 4.07(b) hereof), is less than the sum, without
duplication, of:
(A) 50% of the Consolidated Net Income of Wynn Las
Vegas and its Restricted Subsidiaries for the period (taken
as one accounting period) from the beginning of the first
fiscal quarter commencing after the Phase I Opening Date to
the end of Wynn Las Vegas' most recently ended fiscal quarter
for which internal financial statements are available at the
time of such Restricted Payment (or, if such Consolidated Net
Income for such period is a deficit, less 100% of such
deficit), plus
(B) 100% of the aggregate net cash proceeds received
by Wynn Las Vegas subsequent to the date of this Indenture as
a contribution to its common equity capital, excluding (i)
any such net cash proceeds received by Wynn Las Vegas to the
extent consisting of capital contributions made to Wynn Las
Vegas for the purpose of satisfying the "in-balance"
requirements of the Disbursement Agreement and (ii) any such
net cash proceeds received by Wynn Las Vegas to the extent
used to incur Indebtedness pursuant to clause (14) of Section
4.09(b), plus
(C) (i) to the extent that any Restricted Investment
that was made after the date of this Indenture is sold for
cash or otherwise liquidated or repaid for cash for an amount
in excess of the aggregate amount invested in such Restricted
Investment, the sum of (x) 50% of the cash proceeds with
respect to such Restricted Investment in excess of the
aggregate amount invested in such Restricted Investment (less
the cost of disposition, if any) and (y) the aggregate amount
invested in such Restricted Investment, and (ii) to the
extent that any such Restricted Investment is sold for cash
or otherwise liquidated or repaid in cash for an amount equal
to or less than the aggregate amount invested in such
Restricted Investment, the cash return of capital with
respect to such Restricted Investment (less the cost of
disposition, if any), plus
(D) 100% of any cash dividends or cash distributions
received by Wynn Las Vegas or any of its Restricted
Subsidiaries after the date of this Indenture from any
Restricted Investment (including any Investment in an
Unrestricted Subsidiary of Wynn Las Vegas), to the extent
that such dividends or distributions were not otherwise
included in the Consolidated Net Income of Wynn Las Vegas for
such period, plus
(E) to the extent that any Unrestricted Subsidiary of
Wynn Las Vegas that is so designated after the date of this
Indenture (other than the Completion Guarantor) is
redesignated as a Restricted Subsidiary after the date of
this Indenture, the lesser of (i) the Fair Market Value of
Wynn Las Vegas' Investment in such Subsidiary as of the date
of such redesignation or (ii) such Fair Market Value as of
the date on which such Subsidiary was originally designated
as an Unrestricted Subsidiary; plus
(F) $50.0 million.
(b) With respect to (1) any payments made pursuant to clauses (1),
(2), (3), (6), (7), (8), (9), (10) and (11) below, so long as no Default or
Event of Default has occurred and is continuing or would be caused by the
payments, and (2) any payments made pursuant to clauses (4), (5) and (12)
below, regardless of whether any Default or Event of Default has occurred and
is continuing or would be caused by the payment, the preceding provisions of
this Section 4.07 shall not prohibit:
(1) the payment of any dividend or distribution (other
than any distribution made under clause (5) of this Section
4.07(b)) or the consummation of any irrevocable redemption within
60 days after the date of declaration of the dividend or
distribution or giving of the redemption notice, as the case may
be, if, at the date of declaration or notice the dividend,
distribution or redemption payment would have complied with the
provisions of this Indenture;
(2) the making of any Restricted Payment in exchange for,
or out of the net cash proceeds from the substantially concurrent
contribution of common equity capital to Wynn Las Vegas, provided
that the amount of any such net cash proceeds that are utilized
for any such Restricted Payment shall be excluded from clause
(4)(b) of Section 4.07(a) above;
(3) the repurchase, redemption, defeasance or other
acquisition or retirement for value of Indebtedness of Wynn Las
Vegas or any Guarantor that is contractually subordinated to the
Notes or to any Note Guarantee with the net cash proceeds from a
substantially concurrent incurrence of Permitted Refinancing
Indebtedness;
(4) the distribution or loan to Wynn Resorts, directly or
through any intermediate Wholly Owned Subsidiaries of Wynn
Resorts, of amounts necessary to repurchase Equity Interests or
Indebtedness of Wynn Resorts (other than Equity Interests held by
or Indebtedness owed to the Existing Stockholders) to the extent
required by any Gaming Authority having jurisdiction over Wynn Las
Vegas or any of its Restricted Subsidiaries for not more than the
Fair Market Value thereof in order to avoid the suspension,
revocation or denial of a Gaming License by that Gaming Authority;
provided that so long as, if such efforts do not jeopardize any
Gaming License, Wynn Resorts and its Subsidiaries shall have
diligently attempted to find a third-party purchaser for such
Equity Interests or Indebtedness and no third-party purchaser
acceptable to the applicable Gaming Authority was willing to
purchase such Equity Interests or Indebtedness within a time
period acceptable to such Gaming Authority;
(5) distributions to the direct or indirect owners of
Wynn Las Vegas, the Completion Guarantor or any of the Restricted
Subsidiaries with respect to any period during which such entity
is a Pass Through Entity or a Consolidated Member, such
distributions in an aggregate amount not to exceed such owners'
Tax Amounts for such period;
(6) (i) the repurchase, redemption or other acquisition
or retirement for value of any Equity Interests of Wynn Resorts,
or (ii) the distribution to Wynn Resorts, directly or through any
intermediate Wholly Owned Subsidiaries of Wynn Resorts, of amounts
necessary to repurchase, redeem or otherwise acquire or retire for
value Equity Interests of Wynn Resorts, in each case held by any
member of management of Wynn Resorts (or the estate or trust for
the benefit of any such member of management) pursuant to the
provisions of the operating agreement, or comparable governing
documents, or employee benefit plans or employment agreements of
any such Person; provided that the aggregate consideration for all
such repurchased, redeemed, acquired or retired Equity Interests,
together with the aggregate amount of all such distributions made
to Wynn Resorts, shall not exceed $4.0 million in any calendar
year;
(7) the payment, on or after the Budgeted Overhead Final
Payment Date, of Allocable Overhead to Wynn Resorts or any of its
Subsidiaries in respect of each Qualifying Project of Wynn Las
Vegas and its Restricted Subsidiaries to the extent then due and
payable by Wynn Las Vegas or the applicable Restricted Subsidiary,
as the case may be;
(8) the payment of amounts permitted to be paid pursuant
to the Disbursement Agreement;
(9) Restricted Payments consisting of transfers and other
dispositions of Released Assets;
(10) the satisfaction and discharge or redemption of any
outstanding Second Mortgage Notes;
(11) Restricted Payments not otherwise permitted by the
foregoing clauses (1) through (10) in an aggregate amount of not
more than $10.0 million; and
(12) dividends or distributions to Wynn Resorts, directly
or through any intermediate Wholly Owned Subsidiary of Wynn
Resorts, of amounts necessary to pay amounts then due and payable
under the Tax Indemnification Agreement, as in effect on the date
of this Indenture.
(c) The amount of all Restricted Payments (other than cash) shall be
the Fair Market Value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by Wynn Las Vegas or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
Section 4.08 Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries of Wynn Las Vegas.
(a) Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or permit to exist
or become effective any consensual encumbrance or restriction on the ability of
any Restricted Subsidiaries to:
(1) pay dividends or make any other distributions on its
Capital Stock to Wynn Las Vegas or any of its Restricted Subsidiaries,
or with respect to any other interest or participation in, or measured
by, its profits, or pay any indebtedness owed to Wynn Las Vegas or any
of its Restricted Subsidiaries;
(2) make loans or advances to Wynn Las Vegas or any of its
Restricted Subsidiaries; or
(3) sell, lease, or transfer any of its properties or assets
to Wynn Las Vegas or any of its Restricted Subsidiaries.
(b) The restrictions in Section 4.08(a) hereof shall not apply to
encumbrances or restrictions existing under or by reason of:
(1) the Notes, this Indenture, the Note Guarantees or the
Collateral Documents;
(2) applicable law, including rules, regulations and orders
issued by any Gaming Authority;
(3) customary non-assignment provisions in contracts,
licenses or leases entered into in the ordinary course of business and
consistent with practices that are customary in the gaming, lodging or
entertainment industry;
(4) the Credit Agreement as in effect on the date of this
Indenture and any other Indebtedness permitted to be incurred by this
Indenture and any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings of
those agreements, so long as the applicable provisions of amendments,
modifications, restatements, renewals, increases, supplements,
refundings, replacements, refinancings or agreements governing other
Indebtedness are no more restrictive, taken as a whole, with respect
to such dividend and other payment restrictions than those contained
in the Credit Agreement as in effect on the date of this Indenture;
(5) the acquisition of the Capital Stock of any Person, or
property or assets of any Person by Wynn Las Vegas or any of its
Restricted Subsidiaries, if the encumbrances or restrictions (i)
existed at the time of the acquisition and were not incurred in
contemplation thereof and (ii) are not applicable to and are not
spread to cover any Person or the property or assets of any Person
other than the Person acquired or the property or assets of the Person
acquired;
(6) purchase money obligations or Capital Lease Obligations
for Indebtedness permitted under clause (7) of Section 4.09(b) hereof
that impose restrictions of the type described in clause (3) of
Section 4.08(a) hereof on the assets so acquired;
(7) any agreement for the sale or other disposition of a
Restricted Subsidiary permitted hereby that restricts distributions by
that Restricted Subsidiary pending its sale or other disposition;
(8) Liens permitted to be incurred under the provisions of
Section 4.12 hereof, securing Indebtedness otherwise permitted to be
incurred under Section 4.09(b) hereof, that limit the right of the
debtor to dispose of the assets subject to such Liens; or
(9) customary provisions with respect to the disposition or
distribution of assets or property in partnership or joint venture
agreements, asset sale agreements, stock sale agreements and other
similar agreements entered into in the ordinary course of business.
Section 4.09 Incurrence of Indebtedness and Issuance of Disqualified Stock.
(a) Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, (i) create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness (including Acquired Debt), or (ii) issue any Disqualified Stock.
Notwithstanding the foregoing, Wynn Las Vegas and its Restricted Subsidiaries
may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock,
if (A) the Phase I Opening Date has occurred and (B) the Fixed Charge Coverage
Ratio of Wynn Las Vegas for Wynn Las Vegas' most recently ended four full
fiscal quarters following the Phase I Opening Date for which internal financial
statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock is issued, as
the case may be (the "Reference Period") would have been at least 2.0 to 1.0,
determined on a pro forma basis, including a pro forma application of the net
proceeds from the Indebtedness, as if the additional Indebtedness had been
incurred or Disqualified Stock had been issued, as the case may be, at the
beginning of such four-quarter period.
(b) The provisions of Section 4.09(a) shall not prohibit the
incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(1) the incurrence by Wynn Las Vegas or any of its Restricted
Subsidiaries of Indebtedness under the Credit Agreement in an
aggregate principal amount at any one time outstanding (with letters
of credit being deemed to have a principal amount equal to the sum of
the face amount thereof and related unpaid reimbursement obligations),
to the extent then classified as having been incurred in reliance on
this clause (1) not to exceed (i) $1.0 billion less (ii) the aggregate
amount of all Net Proceeds of Assets Sales applied by Wynn Las Vegas
or any of its Restricted Subsidiaries since the date of this Indenture
to repay any term Indebtedness under the Credit Agreement or repay any
revolving credit Indebtedness under the Credit Agreement and effect a
corresponding permanent reduction of commitments thereunder pursuant
to Section 4.10 hereof or otherwise; provided, however, if the Phase
II Project Budget and the Phase II Plans and Specifications are not
approved by a majority of the arrangers or a majority of the lenders
under the Credit Agreement by June 30, 2005, then the amount of
Indebtedness permitted to be incurred under the Credit Agreement
pursuant to clause (i) above of this clause (1) shall be reduced by
$550.0 million;
(2) the incurrence by the Issuers and the Restricted
Subsidiaries of Wynn Las Vegas of the Existing Indebtedness;
(3) the incurrence by Wynn Las Vegas or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to refund, refinance or replace
Indebtedness (other than intercompany Indebtedness) that was permitted
by this Indenture to be incurred under this Section 4.09(a), under
clauses (2), (7), (8), (9) or (12) of this Section 4.09(b), or under
this clause (3);
(4) incurrence by Wynn Las Vegas or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among Wynn Las
Vegas and any of its Restricted Subsidiaries; provided, however, that:
(a) if Wynn Las Vegas or any Guarantor is the obligor
on such Indebtedness and the payee is not Wynn Las Vegas or a
Guarantor, such Indebtedness must be expressly subordinated in right
of payment to the prior payment in full in cash of all Obligations
then due with respect to the Notes, in the case of Wynn Las Vegas, or
its Note Guarantee under this Indenture, in the case of a Guarantor,
except that no Indebtedness of Wynn Las Vegas or any Guarantor shall
be deemed to be subordinated in right of payment to any other
Indebtedness of Wynn Las Vegas or any such Guarantor solely by virtue
of being unsecured; and
(b) (i) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a Person
other than Wynn Las Vegas or a Restricted Subsidiary thereof, and (ii)
any sale or other transfer of any such Indebtedness to a Person that
is neither Wynn Las Vegas nor a Restricted Subsidiary thereof shall be
deemed, in each case, to constitute an incurrence of such Indebtedness
by Wynn Las Vegas or such Restricted Subsidiary, as the case may be,
that was not permitted by this clause (4);
(5) the incurrence by Wynn Las Vegas or any of its Restricted
Subsidiaries of Hedging Obligations in the ordinary course of
business;
(6) the incurrence by Wynn Las Vegas or any of its Restricted
Subsidiaries of Indebtedness solely in respect of performance, surety,
appeal or similar bonds or commercial or standby letters of credit, so
long as such Indebtedness is incurred in the ordinary course of
business and the aggregate amount of all such bonds and standby
letters of credit is not greater than $40.0 million at any time
outstanding;
(7) the incurrence by Wynn Las Vegas or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case,
incurred for the purpose of financing all or any part of the purchase
price or cost of design, construction, installation or improvement of
property, plant or equipment (including acquisitions of Capital Stock
of a Person that becomes a Restricted Subsidiary to the extent of the
Fair Market Value of the property, plant or equipment of such Person)
used in the Projects by Wynn Las Vegas or any of its Restricted
Subsidiaries, in an aggregate principal amount, including all
Permitted Refinancing Indebtedness incurred to renew, refund,
refinance, replace, defease or discharge any Indebtedness incurred
pursuant to this clause (7), not to exceed $100.0 million at any time
outstanding;
(8) the incurrence by Wynn Las Vegas or any of its Restricted
Subsidiaries of Indebtedness in a principal amount, including all
Permitted Refinancing Indebtedness incurred to renew, refund,
refinance, replace, defease or discharge any Indebtedness incurred
pursuant to this clause (8), not to exceed, at any time, 75% of the
aggregate cost of the Phase III Project to the pay the costs and
expenses of designing, developing and constructing the Phase III
Project, so long as:
(a) the Phase II Opening Date has occurred;
(b) the Holders of the Notes continue to have a perfected
first priority security interest in the Golf Course Land; and
(c) Wynn Las Vegas' and its Restricted Subsidiaries' total
Indebtedness does not exceed 6.5 times Consolidated EBITDA for the
four full fiscal quarters immediately preceding the date of such
incurrence;
(9) the incurrence by Wynn Las Vegas or any of its Restricted
Subsidiaries of Indebtedness in connection with the repurchase,
redemption or other acquisition or retirement for value of Equity
Interests of Wynn Resorts or any Restricted Subsidiary permitted
pursuant to clause (6) of Section 4.07(b) hereof;
(10) the incurrence by Wynn Las Vegas or any of its
Restricted Subsidiaries on or prior to the Phase II Final Completion
Date of Indebtedness represented by performance bonds, guaranties,
trade letters of credit, bankers' acceptances or similar instruments
issued by Person other than Wynn Resorts or any of its Restricted
Subsidiaries for the benefit of a trade creditor of any such Person,
in an aggregate amount not to exceed $20.0 million at any time
outstanding so long as:
(a) such Indebtedness is incurred in the ordinary course of
business; and
(b) the obligations of Wynn Las Vegas or the applicable
Restricted Subsidiary, as the case may be, supported by such
performance bonds, guaranties, trade letters of credit, bankers'
acceptances or similar instruments (A) consist solely of payment
obligations with respect to costs incurred in accordance with the
Phase I Project Budget and the Phase II Project Budget, as applicable,
which would otherwise be permitted to be paid by the applicable entity
pursuant to the Disbursement Agreement and (2) if secured, are secured
solely by Liens permitted by clause (22) of the definition of
"Permitted Liens;" and
(11) the incurrence by Wynn Las Vegas or any of its
Restricted Subsidiaries of additional Indebtedness in an aggregate
principal amount at any time outstanding, not to exceed $40.0 million;
(12) the incurrence by the Issuers and the Guarantors of the
Notes issued on the date of this Indenture in an aggregate principal
amount of $1.3 billion and the Exchange Notes related thereto;
(13) the incurrence of Indebtedness (and the Guarantee of
such Indebtedness by Wynn Las Vegas) in an amount not to exceed 100%
of the Fair Market Value of the Aircraft, which is secured only by
Liens permitted by clause (26) of the definition of "Permitted Liens;"
(14) the incurrence by Wynn Las Vegas or any of its
Restricted Subsidiaries of additional Indebtedness (so long as such
Indebtedness is incurred under the Credit Agreement, through the
issuance of Additional Notes under this Indenture, is unsecured
Indebtedness or is Permitted Junior Debt) to be used to develop and
construct an Additional Entertainment Facility and/or a Retail
Facility on land included in the Projects in an aggregate principal
amount (or original accreted value, as applicable) at any time not to
exceed 662/3% of the aggregate cost of such Additional Entertainment
Facility and/or Retail Facility; provided that, subsequent to the date
of this Indenture and on or prior to the date of the incurrence of
such Indebtedness, net cash proceeds have been received by Wynn Las
Vegas as a contribution to its common equity capital in an amount
equal to at least 331/3% of the aggregate cost of such Additional
Entertainment Facility and/or Retail Facility, which proceeds have
been irrevocably committed at the time of such contribution for use in
the development and construction of such Additional Entertainment
Facility and/or a Retail Facility; and
(15) the incurrence by Wynn Capital, as co-obligor, of any
Indebtedness which Wynn Las Vegas is permitted to incur pursuant to
the foregoing provisions.
(c) For purposes of determining compliance with this Section 4.09, in
the event that an item of proposed Indebtedness meets the criteria of more than
one of the categories of Permitted Debt described in (1) through (14) of
Section 4.09(b) hereof, or is entitled to be incurred pursuant to Section
4.09(a), the Issuers shall be permitted to classify such item of Indebtedness
on the date of its incurrence, or later reclassify all or a portion of such
item of Indebtedness, in any manner that complies with this Section 4.09 as of
the date of such classification or reclassification. Indebtedness under the
Credit Agreement outstanding on the date on which the Notes are first issued
and authenticated under this Indenture shall initially be deemed to have been
incurred on such date in reliance on the exception provided by clause (1) of
Section 4.09(b) hereof. The accrual of interest, the accretion or amortization
of original issue discount, the payment of interest on any Indebtedness in the
form of additional Indebtedness with the same terms, the reclassification of
preferred stock as Indebtedness due to a change in accounting principles, and
the payment of dividends on Disqualified Stock in the form of additional shares
of the same class of Disqualified Stock shall not be deemed to be an incurrence
of Indebtedness or an issuance of Disqualified Stock for purposes of this
covenant. Notwithstanding any other provision of this covenant, the maximum
amount of Indebtedness that Wynn Las Vegas or any of its Restricted
Subsidiaries may incur pursuant to this Section 4.09 shall not be exceeded
solely as a result of fluctuations in exchange rates or currency values. In
addition, any Indebtedness which is permitted to be incurred by Wynn Las Vegas
or any of its Restricted Subsidiaries under clause (7) set forth above may be
incurred under the Credit Agreement or through the issuance of Additional Notes
under this Indenture.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value of the Indebtedness, in the case
of any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the
case of any other Indebtedness; and
(3) in respect of Indebtedness of another Person secured
by a Lien on the assets of the specified Person, the lesser of:
(a) the Fair Market Value of such assets at the date of
determination; and
(b) the amount of the Indebtedness of the other Person.
Section 4.10 Asset Sales.
Wynn Las Vegas shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(a) except with respect to Non-Project Assets, the Phase I Opening
Date has occurred;
(b) Wynn Las Vegas (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of the Asset Sale at least equal to the Fair
Market Value of the assets or Equity Interests issued or sold or otherwise
disposed of (it being understood that a percentage of the purchase price may be
subject to escrow arrangements customary for asset sales);
(c) if the aggregate consideration to be received by Wynn Las Vegas or
such Restricted Subsidiary is in excess of $10.0 million, the Fair Market Value
is evidenced by a certificate of the Chief Financial Officer of Wynn Las Vegas
delivered to the Trustee; and
(d) at least 75% (or 90%, in the case of any Asset Sale that occurs on
or before the Phase I Opening Date) of the consideration received in the Asset
Sale by Wynn Las Vegas or such Restricted Subsidiary is in the form of cash or
Cash Equivalents.
For purposes of this Section 4.10, each of the following shall be
deemed to be cash:
(1) any liabilities, as shown on such Wynn Las Vegas' most
recent consolidated balance sheet, of Wynn Las Vegas or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are
by their terms subordinated to the Notes or any Note Guarantee) that
are assumed by the transferee of any such assets pursuant to a
customary novation agreement that releases Wynn Las Vegas or such
Restricted Subsidiary from further liability; and
(2) any securities, notes or other obligations received by
Wynn Las Vegas or any such Restricted Subsidiary from such transferee
that are converted within 30 Business Days by Wynn Las Vegas or such
Restricted Subsidiary into cash, to the extent of the cash received in
that conversion.
Within 360 days (or within 90 days, in the case of any Asset Sale
that occurs on or before the Phase I Opening Date) after the receipt of any
Net Proceeds from an Asset Sale, Wynn Las Vegas (or the applicable
Restricted Subsidiary as the case may be) may apply such Net Proceeds to
make a capital expenditure, improve real property or acquire long-term
assets that are used or useful in a line of business permitted by Section
4.13 hereof. In any such case, Wynn Las Vegas (or such Restricted
Subsidiary, as the case may be) shall take all necessary action to ensure
that the security interest of the Trustee, on behalf of the Holders,
continues as a perfected first priority security interest (equal and
ratable with the security interest securing the Credit Agreement and
subject to other Permitted Liens and the terms of the Intercreditor
Agreement) on any property or assets acquired or constructed with the Net
Proceeds of any Asset Sale on the terms set forth in this Indenture, the
Intercreditor Agreement and the other Collateral Documents. Pending the
final application of any Net Proceeds, Wynn Las Vegas (or such Restricted
Subsidiary, as the case may be) may (1) apply the Net Proceeds to
temporarily reduce amounts outstanding under any pari passu secured
revolving credit Indebtedness of Wynn Las Vegas or any of its Restricted
Subsidiaries, or (2) invest the Net Proceeds in Cash Equivalents which, at
any time other than during a Collateral Release Period, shall be subject to
a perfected first priority security interest (equal and ratable with the
security interest securing the Credit Agreement and subject to other
Permitted Liens and the terms of the Intercreditor Agreement) in favor of
the Trustee, on behalf of the Holders, as security for the Notes.
Any Net Proceeds from Asset Sales that are not applied or invested
as provided in the preceding paragraph shall constitute "Excess Net
Proceeds." Within 10 days following the earlier of (i) the date on which
the aggregate amount of Excess Net Proceeds exceeds $20.0 million or (ii)
the date when the proceeds of any sale of assets are required, pursuant to
the Credit Agreement, to be applied to reduce Indebtedness of Wynn Las
Vegas (such Excess Net Proceeds and the proceeds described in preceding
clause (ii) shall collectively constitute "Excess Proceeds"), Wynn Las
Vegas shall allocate a portion of the Excess Proceeds, determined by
multiplying the amount of such Excess Proceeds by a fraction, the numerator
of which is the total aggregate principal amount of Notes then outstanding
and all Pari Passu Debt then outstanding, and the denominator of which is
the total aggregate principal amount of Notes then outstanding, all Pari
Passu Debt then outstanding and all Indebtedness then outstanding under the
Credit Agreement (such amount being the "Asset Sale Offer Amount"), to make
an offer (an "Asset Sale Offer") to all holders of Notes and, to the extent
required, the holders of such Pari Passu Debt to repurchase such Notes and
such Pari Passu Debt at an offer price equal to 100% of the principal
amount of the Notes and such Pari Passu Debt to be purchased plus accrued
and unpaid interest and Liquidated Damages, if any, on the Notes and such
other Pari Passu Debt to the date of repurchase, which offer price shall be
payable in cash. The amount of any such Excess Proceeds less the Asset Sale
Offer Amount (the "Asset Sale Repayment Amount") shall concurrently be
applied to repay any term Indebtedness outstanding under the Credit
Agreement in accordance with the requirements of the Credit Agreement;
provided, however, that to the extent that the Asset Sale Repayment Amount
exceeds the amount of term Indebtedness then outstanding under the Credit
Agreement at the time of repayment, such excess amount (after repayment in
full of the term Indebtedness under the Credit Agreement) shall be added to
the Asset Sale Offer Amount and offered to the holders of Notes and, to the
extent required, the holders of such Pari Passu Debt pursuant to the Asset
Sale Offer as provided in the preceding sentence. If any Excess Proceeds
remain after consummation of an Asset Sale Offer and repayment of any term
Indebtedness outstanding under the Credit Agreement, Wynn Las Vegas (or
such Restricted Subsidiary, as the case may be) may use those Excess
Proceeds for any general corporate purpose not prohibited by this
Indenture, the Credit Agreement and the Collateral Documents, including,
without limitation, to reduce revolving credit Indebtedness (and, if
required, commitments) under the Credit Agreement. If the aggregate
principal amount of Notes and such other Pari Passu Debt tendered into such
Asset Sale Offer exceeds the Asset Sale Offer Amount that may be applied to
the Asset Sale Offer, the Trustee shall select the Notes and such other
Pari Passu Debt to be purchased as described in Sections 3.02 and 3.10
hereof. Upon completion of each Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
The Issuers shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with
each repurchase of Notes pursuant to an Asset Sale Offer. To the extent
that the provisions of any securities laws or regulations conflict with the
provisions of Section 3.10 or this Section 4.10, the Issuers shall comply
with the applicable securities laws and regulations and shall not be deemed
to have breached their obligations under those provisions of this Indenture
by virtue of such compliance.
Section 4.11 Transactions with Affiliates.
(a) Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate of Wynn Las Vegas (each, an "Affiliate Transaction"),
unless:
(1) the Affiliate Transaction is on terms that are no less
favorable to Wynn Las Vegas than those that would have been obtained
in a comparable transaction by Wynn Las Vegas or such Restricted
Subsidiary with an unrelated Person;
(2) Wynn Las Vegas or the applicable Restricted Subsidiary
delivers to the Trustee:
(A) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $10.0 million, a resolution of the
Board of Directors of Wynn Capital set forth in an Officers'
Certificate certifying that such Affiliate Transaction
complies with this Section 4.11 and that such Affiliate
Transaction has been approved by a majority of the
disinterested directors of Wynn Capital, to the extent that
there are any such disinterested directors of Wynn Capital;
(B) with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate
consideration in excess of $25.0 million, an opinion as to
the fairness to Wynn Las Vegas or such Restricted Subsidiary
of such Affiliate Transaction from a financial point of view
issued by an accounting, appraisal or investment banking firm
of national standing prior to the consummation of such
Affiliate Transaction; and
(3) in the case of any Affiliate Transaction involving the
use of the Aircraft (if such aircraft is owned by Wynn Las Vegas or
any Restricted Subsidiary) for any purpose not reasonably related to
the Projects or the Permitted Businesses of Wynn Las Vegas or the
applicable Restricted Subsidiary relating to or in connection with the
Projects, Wynn Las Vegas or the applicable Restricted Subsidiary, as
the case may be, is reimbursed promptly for actual costs and expenses
incurred by such Person in connection with such use.
(b) The following items shall not be deemed to be Affiliate
Transactions and, therefore, shall not be subject to the provisions of Section
4.11(a):
(1) any employment agreement entered into by Wynn Las Vegas
or any of its Restricted Subsidiaries with any Person (other than the
Principal) in the ordinary course of business;
(2) the payment of reasonable directors'/managers' fees to
directors or managers of Wynn Las Vegas, Wynn Capital or any
Guarantor, and customary indemnification and insurance arrangements in
favor of such directors or managers, in each case in the ordinary
course of business;
(3) transactions between or among Wynn Las Vegas and/or its
Restricted Subsidiaries;
(4) Restricted Payments that are made in compliance with the
provisions of Section 4.07 hereof;
(5) leases by Wynn Las Vegas to one or more of its Affiliates
of space at the Phase I Project, at market rental rates, for the
development and operation of a Ferrari and Maserati automobile
dealership pursuant to the Dealership Lease Agreement, to the extent
permitted under the Collateral Documents;
(6) (i) the payment, on or after the Budgeted Overhead Final
Payment Date, of Allocable Overhead to Wynn Resorts in respect of each
Qualifying Project of Wynn Las Vegas and its Restricted Subsidaries
and (ii) other payments made pursuant to the Affiliate Agreements, in
each case, as in effect on the date of this Indenture or as such
Affiliate Agreements may be amended, modified or supplemented in any
manner that is not in contravention of the Section 4.25;
(7) any Permitted Investment made pursuant to clauses (10),
(12), (13) or (14) of the definition thereof;
(8) the issuance by Wynn Las Vegas of any Equity Interests
(other than Disqualified Stock) to any Affiliate if such issuance is
otherwise not in contravention of the terms of this Indenture; and
(9) the issuance by Wynn Las Vegas of Notes, in connection
with the issuance of the Initial Notes under this Indenture and the
issuance of the Note Guarantees by the Guarantors, to any Affiliate if
such issuance is otherwise not in contravention of the terms of this
Indenture and is on terms that are no less favorable to Wynn Las Vegas
and the Guarantors than those that could have been obtained in a
comparable transaction by Wynn Las Vegas and the Guarantors with an
unrelated Person.
Section 4.12 Liens.
Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume
or suffer to exist any Lien of any kind on any asset now owned or hereafter
acquired, or any proceeds, income or profits therefrom or assign or convey
any right to receive income therefrom, except Permitted Liens.
Section 4.13 Line of Business.
Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, engage in any business or investment activities
other than the Permitted Business. Wynn Las Vegas shall not, and shall not
permit any of its Subsidiaries to, conduct a Permitted Business in any
gaming jurisdiction in which such entity is not licensed on the date of
this Indenture if the Holders of the Notes would be required to be licensed
as a result thereof; provided that this sentence shall not prohibit any
entity from conducting a Permitted Business in any jurisdiction that does
not require the licensing or qualification of all the Holders of Notes, but
reserves the discretionary right to require the licensing or qualification
of any Holders of Notes.
Section 4.14 Corporate and Organizational Existence.
Subject to Article 5 hereof, except in the case of a Permitted
C-Corp. Conversion, each of the Issuers shall, and shall cause the
Restricted Subsidiaries to, do or cause to be done all things necessary to
preserve and keep in full force and effect:
(a) its corporate or limited liability company existence, and the
corporate, partnership or other existence of each of its Subsidiaries, in
accordance with their respective organizational documents (as the same may be
amended from time to time); and
(b) the rights (charter and statutory), licenses and franchises of the
Issuers and their respective Subsidiaries; provided, however, that the Issuers
and the Restricted Subsidiaries shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence
of any of their respective Subsidiaries (other than the Issuers), if the Board
of Directors of Wynn Capital or the applicable Restricted Subsidiary shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of Wynn Las Vegas and its Restricted Subsidiaries, taken as a
whole, and that the loss thereof is not adverse in any material respect to the
Holders of the Notes.
Section 4.15 Offer to Purchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, the Issuers shall make
an offer (a "Change of Control Offer") to each Holder to repurchase all or any
part (equal to $1,000 or an integral multiple of $1,000) of each Holder's Notes
at a purchase price equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest and Liquidated Damages, if any, on the Notes
purchased, if any, to the date of repurchase (the "Change of Control Payment").
Within ten days following any Change of Control, the Issuers shall mail a
notice to each Holder describing the transaction or transactions that
constitute the Change of Control and stating:
(1) that the Change of Control Offer is being made pursuant
to this Section 4.15 and that all Notes tendered shall be accepted for
payment;
(2) the purchase price and the purchase date, which shall be
no earlier than 30 days and no later than 60 days from the date such
notice is mailed (the "Change of Control Payment Date");
(3) that any Note not tendered shall continue to accrue
interest;
(4) that, unless the Issuers default in the payment of the
Change of Control Payment, all Notes accepted for payment pursuant to
the Change of Control Offer shall cease to accrue interest after the
Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased
pursuant to a Change of Control Offer shall be required to surrender
the Notes, with the form entitled "Option of Holder to Elect Purchase"
attached to the Notes completed, or transfer by book-entry transfer,
to the Paying Agent at the address specified in the notice prior to
the close of business on the third Business Day preceding the Change
of Control Payment Date;
(6) that Holders shall be entitled to withdraw their election
if the Paying Agent receives, not later than the close of business on
the second Business Day preceding the Change of Control Payment Date,
a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of Notes delivered for
purchase, and a statement that such Holder is withdrawing his election
to have the Notes purchased; and
(7) that Holders whose Notes are being purchased only in part
shall be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, which unpurchased portion must be
equal to $1,000 in principal amount or an integral multiple thereof.
The Issuers shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder
to the extent those laws and regulations are applicable in connection with
the purchase of the Notes as a result of a Change in Control. To the extent
that the provisions of any securities laws or regulations conflict with the
provisions of Sections 3.10 or 4.15 of this Indenture, the Issuers shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached their obligations under Section 3.10 or this
Section 4.15 by virtue of such conflict.
(b) On the Change of Control Payment Date, the Issuers shall, to the
extent lawful:
(1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or portions of Notes
properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes
properly accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions of Notes being
purchased by the Issuers.
The Paying Agent shall promptly mail to each Holder of Notes
properly tendered the Change of Control Payment for such Notes, and the
Trustee shall promptly authenticate and mail (or cause to be transferred by
book entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any; provided that each
new Note shall be in a principal amount of $1,000 or an integral multiple
thereof. The Issuers shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control
Payment Date.
(c) Notwithstanding anything to the contrary in this Section 4.15, the
Issuers shall not be required to make a Change of Control Offer upon a Change
of Control if (1) a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set
forth in this Section 4.15 and Section 3.10 hereof and purchases all Notes
validly tendered and not withdrawn under the Change of Control Offer, or (2) a
notice of redemption has been given pursuant to this Indenture as described
above under Section 3.03 hereof, unless and until there is a default in payment
of the applicable redemption price.
Section 4.16 Events of Loss
After any Event of Loss with respect to Collateral (other than
Events of Loss with respect to Collateral comprising the Phase I Project
and/or Collateral comprising the Phase II Project, if applicable, at any
time during the construction of the Phase I Project and/or the Phase II
Project, respectively, which shall be governed by the Disbursement
Agreement), Wynn Las Vegas or the applicable Restricted Subsidiary, as the
case may be, may apply the Net Loss Proceeds from the Event of Loss to the
rebuilding, repair, replacement or construction of improvements to the
damaged Collateral, with no obligation to make any purchase of any Notes;
so long as, in the case of any such Collateral with a Fair Market Value (or
replacement cost, if higher) in excess of $30.0 million; provided that:
(a) Wynn Las Vegas delivers to the Trustee within 90 days of the Event
of Loss a written opinion from a reputable contractor that the damaged
Collateral can be rebuilt, repaired, replaced or constructed and operating
within 365 days following the delivery of such written opinion to the Trustee;
(b) Wynn Las Vegas delivers to the Trustee within 120 days of the
Event of Loss an Officers' Certificate certifying that Wynn Las Vegas or the
applicable Restricted Subsidiary has available from Net Loss Proceeds, cash on
hand or available borrowings under Indebtedness permitted to be incurred under
Section 4.09 hereof to complete the rebuilding, repair, replacement or
construction described in clause (a) above and, together with any anticipated
revenues projected to be generated during the repair or restoration period, to
pay debt service on its Indebtedness during the repair or restoration period;
and
(c) the damaged Collateral is rebuilt, repaired, replaced or
constructed and operating in substantially the manner that it was operating
immediately prior to the Event of Loss within 365 days following the delivery
of such written opinion to the Trustee.
Notwithstanding the foregoing provisions of this Section 4.16, if
the damaged Collateral is not necessary for and is not used in the
operation of the Phase I Project or the Phase II Project, as the case may
be, Wynn Las Vegas (or the applicable Restricted Subsidiary, as the case
may be) may apply the Net Loss Proceeds to make a capital expenditure,
improve real property or acquire long-term assets that are used or useful
in a line of business permitted by Section 4.13 hereof.
The ability of Wynn Las Vegas or any of its Restricted
Subsidiaries to repair or restore any of the Collateral following an Event
of Loss that occurs on or prior to the Phase I Final Completion Date or the
Phase II Final Completion Date, as the case may be, shall be governed by
the Disbursement Agreement.
Any Net Loss Proceeds that are (1) not permitted to be used to
repair or restore the Collateral pursuant to the Disbursement Agreement,
(2) not reinvested as provided in the first sentence of this Section 4.16
or (3) otherwise required, pursuant to the Credit Agreement, to be applied
to reduce Indebtedness of Wynn Las Vegas, in each case, shall be deemed
"Excess Loss Proceeds." Within 10 days following the earlier of (i) the
date on which the aggregate amount of Excess Loss Proceeds exceeds $10.0
million or (ii) the date when, pursuant to the Credit Agreement, Excess
Loss Proceeds are required to be applied to reduce Indebtedness of Wynn Las
Vegas, Wynn Las Vegas shall allocate a portion of such Excess Loss Proceeds
determined by multiplying the amount of such Excess Loss Proceeds by a
fraction, the numerator of which is the total aggregate principal amount of
Notes then outstanding and all Pari Passu Debt then outstanding, and the
denominator of which is the total aggregate principal amount of Notes then
outstanding, all Pari Passu Debt then outstanding and all Indebtedness then
outstanding under the Credit Agreement (such amount being the "Event of
Loss Offer Amount"), to make an offer (an "Event of Loss Offer") to all
Holders of Notes and, to the extent required, the holders of such Pari
Passu Debt to repurchase such Notes and such Pari Passu Debt at an offer
price equal to 100% of the principal amount of the Notes and such Pari
Passu Debt to be purchased plus accrued and unpaid interest and Liquidated
Damages, if any, on the Notes and such other Pari Passu Debt to the date of
repurchase, which offer price shall be payable in cash. The amount of any
such Excess Loss Proceeds less the Event of Loss Offer Amount (the "Event
of Loss Repayment Amount") shall concurrently be applied to repay any term
Indebtedness outstanding under the Credit Agreement in accordance with the
requirements of the Credit Agreement; provided, however, that to the extent
that the Event of Loss Repayment Amount exceeds the amount of term
Indebtedness then outstanding under the Credit Agreement at the time of
repayment but does not exceed $100.0 million (unless the lenders under the
Credit Agreement have waived any requirement of Wynn Las Vegas to prepay
revolving credit Indebtedness outstanding under the Credit Agreement and to
effect a corresponding permanent reduction of the commitments thereunder),
such excess amount (after repayment in full of the term Indebtedness under
the Credit Agreement) shall be added to the Event of Loss Offer Amount and
offered to the Holders of Notes and, to the extent required, the holders of
such Pari Passu Debt pursuant to the Event of Loss Offer as provided in the
preceding sentence. If any Excess Loss Proceeds remain after consummation
of an Event of Loss Offer and repayment of any term Indebtedness
outstanding under the Credit Agreement, Wynn Las Vegas (or such Restricted
Subsidiary, as the case may be) may use those Excess Loss Proceeds for any
general corporate purpose not prohibited by this Indenture, the Credit
Agreement and the Collateral Documents, including, without limitation, to
reduce revolving credit Indebtedness (and, if required, commitments) under
the Credit Agreement. If the aggregate principal amount of Notes and such
other Pari Passu Debt tendered into such Event of Loss Offer exceeds the
Event of Loss Offer Amount that may be applied to the Event of Loss Offer,
the Trustee shall select the Notes and such other Pari Passu Debt to be
purchased as described Sections 3.02 and Section 3.10 hereof. Upon
completion of each Event of Loss Offer, the amount of Excess Loss Proceeds
shall be reset at zero.
Pending their application, all Net Loss Proceeds shall either be
(1) applied to temporarily reduce amounts outstanding under any pari passu
secured revolving credit Indebtedness under the Credit Agreement, or (2)
invested in Cash Equivalents held in an account in which the Trustee has a
perfected first priority security interest for the benefit of the Holders
(equal and ratable with the perfected security interest securing the Credit
Agreement and subject to other Permitted Liens and the terms of the
Intercreditor Agreement). These funds and securities shall be released to
Wynn Las Vegas (or the applicable Restricted Subsidiary, as the case may
be) to pay for or reimburse Wynn Las Vegas (or the applicable Restricted
Subsidiary, as the case may be) for either (1) the actual cost of a
permitted use of Net Loss Proceeds as provided in this Section 4.16, or (2)
the Event of Loss Offer, pursuant to the terms of the Collateral Documents.
Wynn Las Vegas (or the applicable Restricted Subsidiary, as the case may
be) shall grant to the Trustee, on behalf of the Holders, a security
interest (equal and ratable with the perfected security interest securing
the Credit Agreement and subject to other Permitted Liens and the terms of
the Intercreditor Agreement), on any property or assets rebuilt, repaired,
replaced or constructed with such Net Loss Proceeds on the terms set forth
in this Indenture and the Collateral Documents.
In the event of an Event of Loss pursuant to clause (3) of the
definition of "Event of Loss" with respect to property or assets that have
a Fair Market Value (or replacement cost, if greater) in excess of $30.0
million, Wynn Las Vegas (or the applicable Restricted Subsidiary, as the
case may be) shall be required to receive consideration:
(a) at least equal to the Fair Market Value (evidenced by a
resolution of Wynn Capital's Board of Directors set forth in an Officers'
Certificate delivered to the Trustee) of the property or assets subject to
the Event of Loss; and
(b) at least 80% of which is in the form of cash or Cash
Equivalents.
The Issuers shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with
each repurchase of Notes pursuant to an Event of Loss Offer. To the extent
that the provisions of any securities laws or regulations conflict with the
provisions of Sections 3.10 or 4.16 of this Indenture, the Issuers shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached their obligations under those provisions of this
Indenture by virtue of such conflict.
Section 4.17 Designation of Restricted and Unrestricted Subsidiaries
The Board of Directors of Wynn Capital may designate any
Restricted Subsidiary, other than Wynn Capital, to be an Unrestricted
Subsidiary of Wynn Las Vegas if that designation would not cause a Default
or an Event of Default. If a Restricted Subsidiary of Wynn Las Vegas is
designated as an Unrestricted Subsidiary, the aggregate Fair Market Value
of all outstanding Investments owned by Wynn Las Vegas and its Restricted
Subsidiaries in the Subsidiary properly designated shall be deemed to be an
Investment made in an Unrestricted Subsidiary as of the time of the
designation and shall reduce the amount available for Restricted Payments
under Section 4.07 hereof or Permitted Investments, as determined by Wynn
Las Vegas. That designation shall only be permitted if the Investment would
be permitted at that time and if the Restricted Subsidiary of Wynn Las
Vegas otherwise meets the definition of an "Unrestricted Subsidiary." The
Board of Directors of Wynn Capital may redesignate any Unrestricted
Subsidiary of Wynn Las Vegas to be a Restricted Subsidiary of Wynn Las
Vegas if the redesignation would not cause a Default or an Event of
Default.
Any designation of a Subsidiary of Wynn Las Vegas as an
Unrestricted Subsidiary shall be evidenced to the Trustee by filing with
the Trustee a certified copy of a resolution of the Board of Directors
giving effect to such designation and an Officers' Certificate certifying
that such designation complied with the preceding conditions and was
permitted by Section 4.07 hereof. If, at any time, any Unrestricted
Subsidiary would fail to meet the preceding requirements as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for
purposes of this Indenture and any Indebtedness of such Subsidiary shall be
deemed to be incurred by a Restricted Subsidiary of Wynn Las Vegas as of
such date and, if such Indebtedness is not permitted to be incurred as of
such date under Section 4.09 hereof, Wynn Las Vegas shall be in default of
such covenant. The Board of Directors of Wynn Capital may at any time
redesignate any Unrestricted Subsidiary of Wynn Las Vegas to be a
Restricted Subsidiary of Wynn Las Vegas; provided that such designation
shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of Wynn Las Vegas of any outstanding Indebtedness of such
Unrestricted Subsidiary, and such designation shall only be permitted if
(1) such Indebtedness is permitted under Section 4.09 hereof, calculated on
a pro forma basis as if such designation had occurred at the beginning of
the four-quarter reference period; and (2) no Default or Event of Default
would be in existence following such designation.
Section 4.18 Construction.
Wynn Las Vegas shall, and shall cause its Restricted Subsidiaries
to, construct the Phase I Project and, if the Phase II Budget and the Phase
II Plans and Specifications are approved by June 30, 2005, the Phase II
Project, including the furnishing, fixturing and equipping of the Phase I
Project and, if applicable, the Phase II Project, with diligence and
continuity in a good and workmanlike manner substantially in accordance
with the Phase I Plans and Specifications or the Phase II Plans and
Specifications, as applicable.
Section 4.19 Limitations on Use of Proceeds.
Wynn Las Vegas shall deposit all of the remaining net proceeds of
the offering of the Initial Notes into the Secured Account after (i) paying
the costs and expenses of a tender offer and consent solicitation for the
Second Mortgage Notes (including principal, accrued interest and tender
offer premium and consent payments net of interest reserve amounts on such
Second Mortgage Notes), (ii) repaying the outstanding aggregate balance of
the land loan encumbering the Phase II Land (net of interest reserve
amounts on such land loan), (iii) repaying the outstanding aggregate
balance under Wynn Las Vegas' existing $1.05 billion senior secured credit
facility, (iv) repaying the outstanding aggregate balance under Wynn Las
Vegas' existing $198.5 million FF&E Facility and (v) the costs and expenses
of the foregoing. The funds in the Secured Account shall be invested solely
in Permitted Securities. All funds in the Secured Account shall be
disbursed only in accordance with the Disbursement Collateral Account
Agreement and the Disbursement Agreement.
Section 4.20 Limitation on Status as Investment Company.
The Issuers and Guarantors shall not be or become required to
register as an "investment company" (as that term is defined in the
Investment Company Act of 1940, as amended), or otherwise become subject to
regulation under the Investment Company Act of 1940.
Section 4.21 Limitation on Sale and Leaseback Transactions.
Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, enter into any sale and leaseback transaction
(except with respect to the Aircraft Assets so long as, and to the extent
that, such Aircraft Assets are not Collateral); provided that Wynn Las
Vegas or any Restricted Subsidiary may enter into a sale and leaseback
transaction if:
(a) Wynn Las Vegas or that Restricted Subsidiary, as applicable, could
have (a) incurred Indebtedness in an amount equal to the Attributable Debt
relating to such sale and leaseback transaction under the Fixed Charge Coverage
Ratio test set forth in Section 4.09(a) hereof and (b) incurred a Lien to
secure such Indebtedness in an amount equal to the Attributable Debt pursuant
to Section 4.12 hereof;
(b) the gross cash proceeds of such sale and leaseback transaction are
at least equal to the Fair Market Value, as determined in good faith by the
Board of Directors of Wynn Capital or that Restricted Subsidiary, as the case
may be, and set forth in an Officers' Certificate delivered to the Trustee, of
the property that is the subject of such sale and leaseback transaction; and
(c) the transfer of assets in such sale and leaseback transaction is
permitted by, and Wynn Las Vegas or such Restricted Subsidiary applies the
proceeds of such transaction in compliance with Section 4.10 hereof.
Section 4.22 Limitation on Development of Golf Course Land
(a) Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, at any time prior to the date on which the security
interests in all of the Golf Course Land are released in accordance with
Section 10.03(c) hereof:
(1) develop or improve in any material respect or at any material cost
the Golf Course Land or construct any improvements or any building
on the Golf Course Land, including any excavation or site work on
the Golf Course Land,
(2) enter into any contract or agreement for such construction,
development or improvement or for any materials, supplies or labor
necessary in connection with such construction, development or
improvement (other than a contract or agreement that is
conditional upon the release of the Holders' security interests in
the Golf Course Land), or
(3) incur any Indebtedness, the proceeds of which are expected to be
used, or are used, for the construction, development or
improvement of the Golf Course Land; provided, however, Wynn Las
Vegas or any of its Restricted Subsidiaries may incur such
Indebtedness pursuant to clause (8) of Section 4.09(b).
(b) Notwithstanding anything herein or in Section 4.22(a), Wynn Las
Vegas and its Restricted Subsidiaries may:
(1) develop and construct the Golf Course as contemplated by
the Golf Course Lease and the Plans and Specifications prior to the
Phase I Final Completion Date,
(2) maintain or repair the Golf Course on the Golf Course
Land,
(3) make improvements to the Golf Course that enhance its use
as a golf course for the benefit of the Projects,
(4) reconfigure certain portions of the Golf Course in
connection with the release of the Home Site Land in accordance with
the provisions of Sections 10.03(b), 10.03(c), 10.03(d) and 10.03(e)
hereof,
(5) in the event of loss or damage to the Phase II Land or
the improvements thereon, rebuild or repair the Phase II Land and the
improvements thereon to the extent permitted by the provisions of
Section 4.16 hereof,
(6) construct, develop or improve the Golf Course Land for
the purpose of constructing the Projects as contemplated by the Phase
I Plans and Specifications, the Phase II Plans and Specifications or
the Disbursement Agreement,
(7) undertake Government Transfers,
(8) develop the Phase III Project on the Golf Course Land in
the event that (a) the Golf Course Land has not been released as
described in Section 10.03(c) hereof and (b) Wynn Las Vegas or any of
its Restricted Subsidiaries incurs the Permitted Debt of the type
described in clause (8) of Section 4.09(b) hereof; and
(9) have Permitted Liens of the type described in clause (12)
of the definition of "Permitted Liens."
Section 4.23 Restrictions on Payments of Management Fees.
Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(a) pay Management Fees:
(1) to the extent such payment would cause the Consolidated
Leverage Ratio of the Issuers and the Restricted Subsidiaries for the
most recently ended four full fiscal quarters of Wynn Las Vegas for
which internal financial statements are available immediately
preceding the date on which such Management Fee is proposed to be paid
to be greater than 3.5 to 1.0 (calculated on a pro forma basis, giving
effect to the payment of the Management Fees proposed to be paid and
any Indebtedness proposed to be incurred to finance the payment of
such Management Fees); or
(2) if at the time of payment of such Management Fees, a
Default or an Event of Default has occurred and is continuing or shall
occur as a result thereof; or
(b) prepay any Management Fees.
Any Management Fees not permitted to be paid during a particular
12-month period pursuant to this Section 4.23 shall be deferred and shall
accrue. Such accrued and unpaid Management Fees may be paid in any
subsequent 12-month period to the extent such payment would be permitted
under this Section 4.23 and the Management Fees Subordination Agreement.
Section 4.24 Limitation on Issuances and Sales of Equity Interests in
Wholly Owned Restricted Subsidiaries.
Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, transfer, convey, sell, lease or otherwise
dispose of any Equity Interests in any Wholly Owned Restricted Subsidiaries
of Wynn Las Vegas to any Person (other than Wynn Las Vegas or a Wholly
Owned Restricted Subsidiary of Wynn Las Vegas that is a Guarantor), unless:
(a) such transfer, conveyance, sale, lease or other disposition is of
all the Equity Interests in such Wholly Owned Restricted Subsidiary; and
(b) the cash Net Proceeds from such transfer, conveyance, sale, lease
or other disposition are applied in accordance with Section 4.10 hereof.
In addition, Wynn Las Vegas shall not permit any Wholly Owned
Restricted Subsidiary of Wynn Las Vegas to issue any of its Equity
Interests (other than, if necessary, shares of its Capital Stock
constituting directors' qualifying shares) to any Person other than to Wynn
Las Vegas or a Wholly Owned Restricted Subsidiary of Wynn Las Vegas that is
a Guarantor.
Section 4.25 Amendments to Certain Agreements.
(a) On or prior to the Phase I Final Completion Date, except as
contemplated by the Disbursement Agreement, Wynn Las Vegas shall not, and shall
not permit any of its Restricted Subsidiaries to, amend, modify, waive or
otherwise change, or consent or agree to any amendment, modification, waiver or
other change to, or otherwise fail to enforce, or terminate or abandon, any of
the provisions of the Construction Contract, the Construction Contract
Guarantee, the Design/Build Contract, the Golf Course Construction Contract,
the Golf Course Design Services Agreement or any Payment and Performance Bond,
in each case, if such amendment, modification, waiver or other change, failure
to enforce, termination or abandonment (individually or collectively with all
such amendments, modifications, waivers and other changes, failures to enforce,
terminations or abandonments taken as a whole) would have a material adverse
affect on the ability of Wynn Las Vegas or any of its Restricted Subsidiaries
to develop, construct or operate the Phase I Project.
(b) Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, amend, modify, waive or otherwise change, or
consent or agree to any amendment, modification, waiver or other change to, or
otherwise fail to enforce, or terminate or abandon, any of the provisions of
any Affiliate Agreement if such amendment, modification, waiver or other
change, failure to enforce, termination or abandonment (individually or
collectively with all such amendments, modifications, waivers and other
changes, failures to enforce, terminations or abandonments taken as a whole)
would:
(1) increase the amounts payable to Persons other than Wynn
Las Vegas and its Restricted Subsidiaries thereunder by Wynn Las Vegas
or any of its Restricted Subsidiaries,
(2) change the dates on which such amounts are to be paid to
dates earlier than those set forth in such agreement, as in effect on
the date of this Indenture,
(3) reduce the services provided thereunder to Wynn Las Vegas
or any of its Restricted Subsidiaries unless accompanied by a
corresponding decrease in the amounts payable by Wynn Las Vegas or any
of its Restricted Subsidiaries thereunder,
(4) materially impair the rights or remedies of the Holders
of the Notes thereunder or under this Indenture or the Collateral
Documents, or
(5) materially impair the development, use or operation of
the Projects.
Any other amendment, modification, waiver or other change to, or any
failure to enforce, or termination or abandonment of the provisions of any
Affiliate Agreement shall be made in accordance with the requirements of
Section 4.11(a) hereof.
Notwithstanding the foregoing, in connection with any development,
improvement or construction of the Golf Course Land as provided in Section
4.22(b)(8) hereof, or any release of all or any portion of the Golf Course Land
as provided in Sections 10.03(b), 10.03(c), 10.03(d) or 10.03(e), Wynn Las
Vegas and its Restricted Subsidiaries may terminate (in the case of Sections
10.03(b) or 10.03(c)) or amend (in the case of Sections 10.03(d) or 10.03(e))
the Golf Course Lease, the Access Easement Agreement or any other agreement
with respect to the Golf Course Land or any other related assets or property.
Section 4.26 Amendments to Operating Agreements and Charter Documents.
Except in connection with a Permitted C-Corp. Conversion, Wynn Las
Vegas shall not, and shall not permit any of its Restricted Subsidiaries
to:
(a) dissolve,
(b) with respect to any entity that is a limited liability company,
amend, modify or otherwise change, its operating agreement or other charter
documents, or otherwise permit any such agreement or document, to provide that
the death, retirement, resignation, expulsion, bankruptcy, dissolution or
dissociation of a member of that limited liability company or any other event
affecting a member of that limited liability company either terminates the
status of that Person as a member of the limited liability company or causes
the limited liability company to be dissolved or its affairs wound up, or
(c) amend, modify or otherwise change the separateness covenants and
company restrictions in its operating agreement relating to conduct, or any
comparable provisions contained in its other charter documents, or fail to
include similar provisions in the operating agreement or other applicable
charter documents of any future Restricted Subsidiary.
Section 4.27 Insurance.
Wynn Las Vegas shall, and shall cause its Restricted Subsidiaries
to, maintain insurance with reputable and financially sound carriers
against such risks and in such amounts as are customarily carried by
similarly situated businesses, including, without limitation, property and
casualty insurance, so long as such insurance coverage (including
deductibles, retentions and self-insurance amounts) at all times complies
with the insurance coverage required under the Disbursement Agreement.
Section 4.28 Additional Collateral; Formation or Acquisition of Restricted
Subsidiaries, Designation of Unrestricted Subsidiaries as Restricted
Subsidiaries or Permitted C-Corp. Conversion.
Concurrently with (1) the formation or acquisition of any
Restricted Subsidiary of Wynn Las Vegas that becomes or is required under
the Credit Agreement to become a Guarantor of any of the obligations under
the Credit Agreement, (2) the designation of an Unrestricted Subsidiary of
Wynn Las Vegas as a Restricted Subsidiary, or (3) the conversion by Wynn
Las Vegas or any of its Restricted Subsidiaries as a subchapter "C"
corporation in a Permitted C-Corp. Conversion, Wynn Las Vegas shall, to the
extent not prohibited by Gaming Authorities or applicable Gaming Laws and
subject to the Intercreditor Agreement:
(a) (1) cause such Restricted Subsidiary or subchapter "C"
corporation (if such subchapter "C" corporation is not an Issuer) to
guarantee all obligations of the Issuers under thi9 s Indenture and
the Notes by executing and delivering to the Trustee a supplemental
indenture in the form of Exhibit F to this Indenture; or
(2) if such subchapter "C" corporation is an Issuer, cause
such subchapter "C" corporation to execute and deliver to the Trustee
(i) a supplemental indenture substantially in the form of Exhibit F
hereto, (ii) an assumption agreement unconditionally and irrevocably
assuming all of the right, title and interest of the Issuer that was
so reorganized as a subchapter "C" corporation in, to and under this
Indenture and the Notes, and (iii) replacement Notes for the Notes
previously issued by the Issuer that was so reorganized as a
subchapter "C" corporation to be issued to the Holders upon request
and the concurrent return by such Holders of the Notes previously
issued to them by the Issuer that was so reorganized as a "C"
corporation;
(b) cause such Restricted Subsidiary or subchapter "C" corporation to
execute and deliver to the Trustee, (a) an assumption agreement in the form of
Annex 1 to the Security Agreement (under which such Restricted Subsidiary or
subchapter "C" corporation shall grant a security interest to the Trustee in
those of its assets described in the Security Agreement), and (b) such Uniform
Commercial Code financing statements as are necessary to perfect the Trustee's
security interest in such assets;
(c) in the event such Restricted Subsidiary or subchapter "C"
corporation owns real property that (i) is contiguous to any real property
included in the Collateral or (ii) has a Fair Market Value in excess of $5.0
million in the aggregate or $2.5 million individually, cause such Restricted
Subsidiary or subchapter "C" corporation to execute and deliver to the Trustee:
(1) a deed of trust, substantially in the form of the Deeds
of Trust (with such modifications as are necessary to comply with
applicable law) (under which such Restricted Subsidiary or subchapter
"C" corporation shall grant a security interest to the Trustee in such
real property and any related fixtures),
(2) in the case of any such Restricted Subsidiary, title and
extended coverage insurance covering such real property in an amount
at least equal to the purchase price of such real property, and
(3) in the case of any such subchapter "C" corporation, an
agreement executed and delivered by the title company that issued the
title and extended coverage insurance covering the real property owned
by such subchapter "C" corporation naming such subchapter "C"
corporation as an additional insured under such insurance,
(d) promptly pledge, or cause to be pledged, to the Trustee (i) all of
the outstanding Capital Stock of such entity or subchapter "C" corporation
owned by Wynn Las Vegas or any of its Restricted Subsidiaries and (ii) all of
the outstanding Capital Stock owned by such Restricted Subsidiary or subchapter
"C" corporation, to secure Wynn Las Vegas' obligations under this Indenture and
the Notes or such Restricted Subsidiary's Guarantee obligations under the
applicable Security Agreement, as the case may be;
(e) promptly take, and cause such Restricted Subsidiary or subchapter
"C" corporation and each other Restricted Subsidiary to take all action
necessary or, in the opinion of the Trustee, desirable to perfect and protect
the security interests intended to be created by the Collateral Documents, as
modified under this Section 4.28; and
(f) promptly deliver to the Trustee such Opinions of Counsel, if any,
as the Trustee may reasonably require with respect to the foregoing (including
opinions as to enforceability and perfection of security interests).
Notwithstanding the foregoing, no Restricted Subsidiary shall be
required to take the actions specified in clauses (2) through (6) above
during any Collateral Release Period.
Section 4.29 Additional Collateral; Acquisition of Assets or Property.
At any time other than during a Collateral Release Period, and
concurrently with the acquisition by Wynn Las Vegas or any of its
Restricted Subsidiaries of any assets or property (other than a Subsidiary
of Wynn Las Vegas) that would constitute Collateral, to the extent not
prohibited by Gaming Authorities or applicable Gaming Laws and subject to
the Intercreditor Agreement, Wynn Las Vegas shall, and shall cause its
Restricted Subsidiaries to, cause the applicable entity to:
(a) in the case of the acquisition of personal property with an
aggregate fair market value in excess of $50,000 (other than Aircraft Assets)
for all such acquired personal property, execute and deliver to the Collateral
Agent such Uniform Commercial Code financing statements, if any, as are
necessary or, in the opinion of the Trustee, desirable to perfect and protect
the Trustee's security interest in such assets or property;
(b) in the case of the acquisition of real property, that (i) is
contiguous to any real property included in the Collateral or (ii) has a Fair
Market Value in excess of $5.0 million in the aggregate or $2.5 million
individually, execute and deliver to the Trustee:
(1) a deed of trust, substantially in the form of the Deeds
of Trust (with such modifications as are necessary to comply with
applicable law) (under which Wynn Las Vegas or such Restricted
Subsidiary shall grant a security interest to the Trustee in such real
property and any related fixtures), and
(2) title and extended coverage insurance covering such real
property in an amount at least equal to the purchase price of such
real property; and
(c) in the case of the acquisition of personal property
(other than personal property in which the Trustee has a perfected
security interest (subject only to Permitted Liens)) or real property
subject to clauses (a) and (b) above of this Section 4.29, as
applicable, promptly deliver to the Trustee such Opinions of Counsel,
if any, as the Trustee may reasonably require with respect to the
foregoing (including opinions as to enforceability and perfection of
security interests).
Section 4.30 Further Assurances.
Except during any Collateral Release Period, Wynn Las Vegas shall,
and shall cause its Restricted Subsidiaries to, execute and deliver such
additional instruments, certificates or documents, and take all such
actions as may be reasonably required from time to time in order to:
(a) carry out more effectively the purposes of the Collateral
Documents;
(b) create, grant, perfect and maintain the validity, effectiveness,
perfection and priority of any of the Collateral Documents and the Liens
created, or intended to be created, by the Collateral Documents; and
(c) ensure that any of the rights granted or intended to be granted to
the Trustee or any Holder under the Collateral Documents or under any other
instrument executed in connection therewith or granted to Wynn Las Vegas or any
of its Restricted Subsidiaries under the Collateral Documents or under any
other instrument executed in connection therewith are protected and enforced.
Upon the exercise by the Trustee or any Holder of any power,
right, privilege or remedy under this Indenture or any of the Collateral
Documents which requires any consent, approval, recording, qualification or
authorization of any governmental authority (including any Gaming
Authority), Wynn Las Vegas shall, and shall cause its Restricted
Subsidiaries to, execute and deliver all applications, certifications,
instruments and other documents and papers that may be required from Wynn
Resorts, Wynn Las Vegas or any of Wynn Las Vegas' Restricted Subsidiaries
for such governmental consent, approval, recording, qualification or
authorization.
Section 4.31 Payments for Consent.
Wynn Las Vegas shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid
any consideration to or for the benefit of any Holder of Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture, the Notes or the Collateral Documents unless
such consideration is offered to be paid and is paid to all Holders of
Notes that consent, waive or agree to amend in the time frame set forth in
the solicitation documents relating to such consent, waiver or agreement.
Section 4.32 Restrictions on Activities of Wynn Capital.
Wynn Capital shall not hold any material assets, hold any Equity
Interests, incur any Indebtedness, become liable for any obligations,
engage in any business activities or have any Subsidiaries. However, Wynn
Capital may incur Indebtedness to the extent that it is a co-obligor with
respect to Indebtedness which Wynn Las Vegas is permitted to incur under
this Indenture, but only if the Net Proceeds of such Indebtedness are
received by Wynn Las Vegas or one or more of Wynn Las Vegas' Wholly Owned
Restricted Subsidiaries other than Wynn Capital. At all times while Notes
issued under this Indenture remain outstanding, Wynn Capital shall maintain
a Board of Directors composed of individuals who serve on the Board of
Directors of Wynn Resorts, and such other disinterested or independent
members as the Board of Directors deems appropriate from time to time.
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
(a) Neither Issuer may, directly or indirectly, (1) consolidate or
merge with or into another Person (whether or not such Issuer is the surviving
entity) or (2) sell, assign, transfer, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions, to another Person, unless:
(1) either (a) such Issuer is the surviving entity or (b) the
Person formed by or surviving any such consolidation or merger (if
other than such Issuer) or to which such sale, assignment, transfer,
conveyance or other disposition shall have been made is a corporation
organized or existing under the laws of the United States, any state
of the United States or the District of Columbia;
(2) the Person formed by or surviving any such consolidation
or merger (if other than such Issuer) or the Person to which such
sale, assignment, transfer, conveyance or other disposition shall have
been made assumes all the obligations of such Issuer under the Notes,
this Indenture, the Registration Rights Agreement and the Collateral
Documents pursuant to agreements reasonably satisfactory to the
Trustee;
(3) immediately after such transaction, no Default or Event
of Default exists;
(4) such transaction would not result in the loss or
suspension or material impairment of any Gaming License unless a
comparable new Gaming License is effective prior to or simultaneously
with such loss, suspension or material impairment;
(5) such Issuer or the Person formed by or surviving any such
consolidation or merger (if other than such Issuer), or to which such
sale, assignment, transfer, conveyance or other disposition shall have
been made:
(a) shall have Consolidated Net Worth immediately after the
transaction equal to or greater than the Consolidated Net Worth of
such Issuer immediately preceding the transaction (excluding the
effect of the related professional fees, commissions, sales and other
taxes, and other transactional costs that would otherwise reduce
Consolidated Net Worth); and
(b) shall, on the date of such transaction after giving pro
forma effect thereto and any related financing transactions as if the
same had occurred at the beginning of the applicable four-quarter
period, be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in Section 4.09(a) hereof;
(6) such transaction, at the time it is undertaken, would not
require any Holder or Beneficial Owner of Notes to obtain a Gaming
License or be qualified or found suitable under the law of any
applicable gaming jurisdiction; provided that such Holder or
Beneficial Owner would not have been required to obtain a Gaming
License or be qualified or found suitable under the laws of any
applicable gaming jurisdiction in the absence of such transaction.
In addition, no Issuer may, directly or indirectly, lease all or
substantially all of its properties or assets, taken as a whole, in one or
more related transactions, to any other Person.
Notwithstanding the provisions of this Section 5.01, Wynn Las
Vegas or any of its Restricted Subsidiaries that is not a subchapter "C"
corporation is permitted to convert into a corporation pursuant to a
Permitted C-Corp. Conversion.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially
all of the assets of either Issuer in a transaction that is subject to, and
that complies with the provisions of, Section 5.01 hereof, the successor
Person formed by such consolidation or into or with which such Issuer is
merged or to which such sale, assignment, transfer, lease, conveyance or
other disposition is made shall succeed to, and be substituted for (so that
from and after the date of such consolidation, merger, sale, lease,
conveyance or other disposition, the provisions of this Indenture referring
to such "Issuer" shall refer instead to the successor Person and not to
such Issuer), and may exercise every right and power of such Issuer under
this Indenture with the same effect as if such successor Person had been
named as such Issuer herein; provided, however, that the predecessor Issuer
shall not be relieved from the obligation to pay the principal of and
interest and premium, if any, on the Notes, except in the case of a sale of
all of such Issuer's assets in a transaction that is subject to, and that
complies with the provisions of Section 5.01 hereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Each of the following is an "Event of Default":
(a) the Issuers default for 30 days in the payment when due of
interest on, or Liquidated Damages, if any, with respect to, the Notes;
(b) the Issuers default in the payment when due (at maturity, upon
redemption, repurchase or otherwise) of the principal of, or premium, if any,
on the Notes;
(c) failure by Wynn Capital, Wynn Las Vegas or any of its Restricted
Subsidiaries:
(1) to comply with any payment obligations (including,
without limitation, obligations as to the timing or amount of such
payments) described under Sections 4.10, 4.15 or 4.16 hereof;
(2) to comply with Sections 4.07, 4.09 or 5.01 hereof;
(d) failure by Wynn Capital, Wynn Las Vegas or any of its Restricted
Subsidiaries for 60 days after receipt of written notice from the Trustee or
the Holders of at least 25% in aggregate principal amount of the Notes, if any,
then outstanding voting as a single class to comply with any of the other
agreements in this Indenture not set forth in Section 6.01(c) above;
(e) failure by Wynn Capital, Wynn Las Vegas or any of its Restricted
Subsidiaries, the Completion Guarantor or any other party to any Collateral
Documents (other than the Trustee or any representative of the lenders under
the Credit Agreement or other lenders party thereto) for 60 days after receipt
of written notice from the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes, if any, then outstanding voting as a single
class, to comply with any of its agreements, as applicable, in any Collateral
Document;
(f) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by Wynn Las Vegas or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by Wynn Las Vegas or any of
its Restricted Subsidiaries) whether such Indebtedness or guarantee now exists,
or is created after the date of this Indenture, if that default:
(1) is caused by a failure to pay principal of, or interest
or premium, if any, on such Indebtedness prior to the expiration of
the grace period provided in such Indebtedness on the date of such
default (a "Payment Default"); or
(2) results in the acceleration of such Indebtedness prior to
its express maturity,
and, in each case, the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which there
has been a Payment Default or the maturity of which has been so
accelerated, aggregates $20.0 million or more;
(g) failure by Wynn Capital, Wynn Las Vegas or any of its Restricted
Subsidiaries to pay final non-appealable judgments (not paid or covered by
insurance as to which the relevant insurance company has not denied
responsibility) aggregating in excess of $20.0 million, which judgments are not
paid, bonded, discharged or stayed for a period of 60 days;
(h) any event of default under any of the Collateral Documents or any
of the Collateral Documents shall cease, for any reason (other than pursuant to
their terms), to be in full force and effect, or Wynn Capital, Wynn Las Vegas
or any of its Restricted Subsidiaries or any Affiliate of any such Person or
any Person acting on behalf of any such Person, shall so assert as to any of
such Person's properties or assets, or any security interest created, or
purported to be created, by any of the Collateral Documents shall cease to be
enforceable and of the same effect and priority purported to be created by the
Collateral Documents;
(i) any material representation or warranty made or deemed made by
Wynn Capital, Wynn Las Vegas or any of its Restricted Subsidiaries in any
Collateral Document or that is contained in any certificate, document or
financial or other statement furnished by it at any time under or in connection
with any such Collateral Document shall prove to have been inaccurate in any
material respect on or as of the date made or deemed made; provided that the
inaccuracy of any representation or warranty contained only in the Disbursement
Agreement shall constitute an Event of Default hereunder only to the extent
such inaccuracy constitutes an event of default under a Disbursement Agreement;
(j) except as expressly permitted therein or by this Indenture, the
Completion Guarantee, the Construction Contract Guarantee, any Note Guarantee
issued by a Significant Restricted Subsidiary of Wynn Las Vegas shall be held
in any judicial proceeding to be unenforceable or invalid or shall cease for
any reason to be in full force and effect or the Completion Guarantor or any
Restricted Subsidiary of Wynn Las Vegas, or any Person acting on behalf of any
such Person, shall deny or disaffirm its obligations under its Note Guarantee;
(k) either Issuer, any Significant Restricted Subsidiary of Wynn Las
Vegas or any group of Restricted Subsidiaries of Wynn Las Vegas that, taken
together, would constitute a Significant Restricted Subsidiary of Wynn Las
Vegas pursuant to or within the meaning of Bankruptcy Law:
(1) commences a voluntary case,
(2) consents to the entry of an order for relief against it
in an involuntary case,
(3) consents to the appointment of a custodian of it or for
all or substantially all of its property,
(4) makes a general assignment for the benefit of its
creditors, or
(5) generally is not paying its debts as they become due; or
(l) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(1) is for relief against either Issuer or any Significant
Restricted Subsidiary of Wynn Las Vegas or any group of Restricted
Subsidiaries of Wynn Las Vegas that, taken together, would constitute
a Significant Restricted Subsidiary of Wynn Las Vegas in an
involuntary case;
(2) appoints a custodian of either Issuer or any Significant
Restricted Subsidiary of Wynn Las Vegas or any group of Restricted
Subsidiaries of Wynn Las Vegas that, taken together, would constitute
a Significant Restricted Subsidiary of Wynn Las Vegas or for all or
substantially all of the property of either Issuer or any Significant
Restricted Subsidiary of Wynn Las Vegas or any group of Restricted
Subsidiaries of Wynn Las Vegas that, taken together, would constitute
a Significant Restricted Subsidiary of Wynn Las Vegas; or
(3) orders the liquidation of either Issuer or any
Significant Restricted Subsidiary of Wynn Las Vegas or any group of
Restricted Subsidiaries of Wynn Las Vegas that, taken together, would
constitute a Significant Restricted Subsidiary of Wynn Las Vegas;
and the order or decree remains unstayed and in effect for 60 consecutive days;
or
(m) the Phase I Project has not achieved Phase I Completion on or
before the Phase I Outside Completion Deadline;
(n) after the Phase I Opening Date, revocation, termination,
suspension or other cessation of effectiveness of any Gaming License which
results in the cessation or suspension of gaming operations at any Gaming
Facility for a period of more than 90 consecutive days; or
(o) if Wynn Las Vegas ever fails to own, directly or indirectly, 100%
of the issued and outstanding Equity Interests of Wynn Capital.
Notwithstanding any provision of this Indenture to the contrary,
the following shall not be deemed to violate, or affect any calculations
under, any covenant contained in this Indenture: (1) the consummation by
the Issuers and the Restricted Subsidiaries on the date of this Indenture
of the transactions described in the Issuers' Offering Memorandum, dated as
of November 22, 2004, relating to the offering of the Initial Notes under
the captions "Proposed Financing Transactions" and "Use of Proceeds" and
(2) the distribution to Wynn Resorts, through one or more Wholly Owned
Subsidiaries of Wynn Resorts, of an amount equal the net cash proceeds
received by Wynn Las Vegas in respect of an unwind payment or termination
payment of the Hedging Obligations of Wynn Las Vegas in existence on the
date of this Indenture so long as such distribution is made within three
Business Days of the date of this Indenture.
Section 6.02 Acceleration.
In the case of an Event of Default specified in clause (k) or (l)
of Section 6.01 hereof, with respect to either Issuer, any Significant
Restricted Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Restricted Subsidiary, all
outstanding Notes shall become due and payable immediately without further
action or notice. If any other Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable
immediately. Upon any such declaration, the Notes shall become due and
payable immediately. The Holders of a majority in aggregate principal
amount of the then outstanding Notes by written notice to the Trustee may
on behalf of all of the Holders rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default (except nonpayment of
principal, interest or premium or Liquidated Damages, if any, that has
become due solely because of the acceleration) have been cured or waived.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium
and Liquidated Damages, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder of a Note in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default.
All remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount
of the then outstanding Notes by notice to the Trustee may, on behalf of
the Holders of all of the Notes, waive an existing Default or Event of
Default and its consequences hereunder, except a continuing Default or
Event of Default in the payment of the principal of, premium, if any, or
interest on, the Notes (including in connection with an offer to purchase);
provided, however, that the Holders of a majority in aggregate principal
amount of the then outstanding Notes may rescind an acceleration and its
consequences, including any related payment default that resulted from such
acceleration. Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
Subject to the Intercreditor Agreement, Holders of a majority in
principal amount of the then outstanding Notes may direct the time, method
and place of conducting any proceeding for exercising any remedy available
to the Trustee or exercising any trust or power conferred on it. However,
the Trustee may refuse to follow any direction that conflicts with law or
this Indenture that the Trustee determines may be unduly prejudicial to the
rights of other Holders of Notes or that may involve the Trustee in
personal liability.
Section 6.06 Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) such Holder of a Note gives to the Trustee written notice that an
Event of Default is continuing;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder or Holders offer and, if requested, provide to the
Trustee security or indemnity satisfactory to the Trustee against any loss,
liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(e) during such 60-day period, the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with such request within such 60-day period.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority
over another Holder of a Note.
Section 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Note to receive payment of principal, premium and
Liquidated Damages, if any, and interest on the Note, on or after the
respective due dates expressed in the Note (including in connection with an
offer to purchase), or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder; provided that a Holder shall
not have the right to institute any such suit for the enforcement of
payment if and to the extent that the institution or prosecution thereof or
the entry of judgment therein would, under applicable law, result in the
surrender, impairment, waiver or loss of the Lien of this Indenture upon
any property subject to such Lien.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs
and is continuing, the Trustee is authorized to recover judgment in its own
name and as trustee of an express trust against the Issuers for the whole
amount of principal of, premium and Liquidated Damages, if any, and
interest remaining unpaid on, the Notes and interest on overdue principal
and, to the extent lawful, interest and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings
relative to the Issuers (or any other obligor upon the Notes), its
creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable
on any such claims and any custodian in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee, and
in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.07 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
7.07 hereof out of the estate in any such proceeding, shall be denied for
any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and
other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium and Liquidated Damages, if any, and
interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal,
premium and Liquidated Damages, if any and interest, respectively; and
Third: to the Issuers or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of Notes pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07
hereof, or a suit by Holders of more than 10% in principal amount of the
then outstanding Notes.
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in its exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Collateral Documents,
and the Trustee need perform only those duties that are specifically
set forth in this Indenture and the Collateral Documents, and no
others, and no implied covenants or obligations shall be read into
this Indenture and the Collateral Documents against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture and the Collateral Documents. However, the Trustee
shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture and the
Collateral Documents.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this Section 7.01(c) does not limit the effect of
paragraph (b) of this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture or the Collateral Documents shall
require the Trustee to expend or risk its own funds or incur any liability. The
Trustee shall be under no obligation to exercise any of its rights and powers
under this Indenture and the Collateral Documents at the request of any
Holders, unless such Holder shall have offered to the Trustee security and
indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Issuers. Money held
in trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture or the
Collateral Documents, any demand, request, direction or notice from the Issuers
shall be sufficient if signed by an Officer of either Issuer.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture or the Collateral Documents at
the request or direction of any of the Holders unless such Holders have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
(g) Unless it has knowledge of a Default or Event of Default, and
except as otherwise expressly provided herein, the Trustee shall have no duty
to inquire as to the performance of the Issuers with respect to the covenants
contained in Articles 4 and 5 hereof.
(h) The Trustee shall not be deemed to have knowledge of an Event of
Default except (i) any Default or Event of Default occurring pursuant to
Sections 6.01(a) and (b) hereof or (ii) any Default or Event of Default of
which the Trustee shall have received written notification or obtained actual
knowledge thereof.
Section 7.03 Individual Rights of Trustee.
The Trustee, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with the Issuers or
any Affiliate of the Issuers with the same rights it would have if it were
not Trustee. However, in the event that the Trustee acquires any
conflicting interest it must eliminate such conflict within 90 days, apply
to the SEC for permission to continue as trustee (if this Indenture has
been qualified under the TIA) or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and
7.11 hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the
Notes, it shall not be accountable for the Issuers' use of the proceeds
from the Notes or any money paid to the Issuers or upon the Issuers'
direction under any provision of this Indenture, it shall not be
responsible for the use or application of any money received by any Paying
Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other
document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail a notice of the Default
or Event of Default to Holders within 90 days after it occurs. Except in
the case of a Default or Event of Default in payment of principal of,
premium or Liquidated Damages, if any, or interest on, any Note, the
Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice
is in the interests of the Holders of the Notes.
Section 7.06 Reports by Trustee to Holders of the Notes.
(a) Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA ss. 313(a) (but if no
event described in TIA ss. 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA ss. 313(b)(2). The Trustee shall also transmit by mail
all reports as required by TIA ss. 313(c).
(b) A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed by the Trustee to the Issuers and filed by the Trustee
with the SEC and each stock exchange on which the Notes are listed in
accordance with TIA ss. 313(d). The Issuers shall promptly notify the Trustee
when the Notes are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
(a) The Issuers shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuers shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred
or made by it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
(b) The Issuers and the Guarantors shall indemnify the Trustee against
any and all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture and the Collateral Documents, including the costs and expenses of
enforcing this Indenture against the Issuers and the Guarantors (including this
Section 7.07) and defending itself against any claim (whether asserted by the
Issuers, the Guarantors or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder or thereunder, respectively, except to the extent any such loss,
liability or expense may be attributable to its negligence or bad faith. The
Trustee shall notify the Issuers promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Issuers shall not relieve
the Issuers or any of the Guarantors of their obligations hereunder. The
Issuers or such Guarantor shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Issuers
shall pay the reasonable fees and expenses of such counsel. Neither the Issuers
nor any Guarantor need pay for any settlement made without its consent, which
consent shall not be unreasonably withheld.
(c) The obligations of the Issuers and the Guarantors under this
Section 7.07 shall survive the satisfaction and discharge of this Indenture.
(d) To secure the Issuers' and the Guarantors' payment obligations in
this Section 7.07, the Trustee shall have a Lien prior to the Notes on all
money or property held or collected by the Trustee, except that held in trust
to pay principal and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(k) or (l) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
(f) The Trustee shall comply with the provisions of TIA ss. 313(b)(2)
to the extent applicable.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Issuers in writing. The
Holders of a majority in principal amount of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Issuers in writing. The
Issuers may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a custodian or public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuers shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Issuers.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Issuers,
or the Holders of at least 10% in principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(e) If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with Section 7.10, such Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
(f) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Issuers' obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United
States of America or of any state thereof that is authorized under such
laws to exercise corporate trustee power, that is subject to supervision or
examination by federal or state authorities and that has a combined capital
and surplus of at least $100 million as set forth in its most recent
published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to
TIA ss. 310(b).
Section 7.11 Preferential Collection of Claims Against Issuers.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuers may, at the option of their respective Boards of
Directors evidenced by a resolution set forth in an Officers' Certificate
of each Issuer, at any time, elect to have either Section 8.02 or 8.03
hereof be applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
Upon the Issuers' exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Issuers shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed
to have been discharged from their obligations with respect to all
outstanding Notes, each of the Guarantors shall be deemed to be discharged
from their obligations with respect to their Note Guarantees and the
Issuers and each of the Guarantors shall be deemed to be discharged from
their obligations with respect to the Collateral Documents on the date the
conditions set forth below are satisfied (hereinafter, "Legal Defeasance").
For this purpose, Legal Defeasance means that the Issuers and each of the
Guarantors shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes (including the Note
Guarantees), which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of this
Indenture referred to in Sections 8.02(a) and (b) below, and to have
satisfied all their other obligations under such Notes, the Note
Guarantees, the Collateral Documents, and this Indenture (and the Trustee,
on demand of and at the expense of the Issuers, shall execute proper
instruments acknowledging the same), except for the following provisions
which shall survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of outstanding Notes to receive payments in
respect of the principal of, or interest or premium and Liquidated Damages, if
any, on such Notes when such payments are due from the trust referred to in
Section 8.04 hereof;
(b) the Issuers' obligations with respect to such Notes under Article
2 and Section 4.02 hereof;
(c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Issuers' and the Guarantors' obligations in connection
therewith; and
(d) this Article 8.
Subject to compliance with this Article 8, the Issuers may
exercise their option under this Section 8.02 notwithstanding the prior
exercise of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
Upon the Issuers' exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Issuers, the Restricted Subsidiaries
of Wynn Las Vegas and any Guarantors shall, subject to the satisfaction of
the conditions set forth in Section 8.04 hereof, be released from each of
their obligations under the covenants contained in Sections 4.07, 4.08,
4.09, 4.10, 4.11, 4.12, 4.13 and 4.15 through 4.32 inclusive hereof and
clause (5) of Section 5.01(a) hereof with respect to the outstanding Notes
on and after the date the conditions set forth in Section 8.04 hereof are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of
any thereof) in connection with such covenants, but shall continue to be
deemed "outstanding" for all other purposes hereunder (it being understood
that such Notes shall not be deemed outstanding for accounting purposes).
For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes and Note Guarantees, the Issuers and each of the
Guarantors released may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any
such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of
Default under Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes and Note Guarantees shall be
unaffected thereby. In addition, upon the Issuers' exercise under Section
8.01 hereof of the option applicable to this Section 8.03 hereof, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(c) through 6.01(h), Section 6.01(j) and Sections 6.01(n)
through 6.01(p) hereof shall not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance
under either Section 8.02 or 8.03 hereof:
(a) the Issuers must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in U.S. dollars, non-callable Government
Securities, or a combination of cash in U.S. dollars and non-callable
Government Securities, in amounts as shall be sufficient, in the opinion of a
nationally recognized investment bank, appraisal firm, or firm of independent
public accountants, to pay the principal of, or interest and premium and
Liquidated Damages, if any, on the outstanding Notes on the stated maturity or
on the applicable redemption date, as the case may be, and the Issuers must
specify whether the Notes are being defeased to maturity or to a particular
redemption date;
(b) in the case of an election under Section 8.02 hereof, the Issuers
must deliver to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee confirming that (1) the Issuers have received from, or there has been
published by, the Internal Revenue Service a ruling or (2) since the date of
this Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the outstanding Notes shall not
recognize income, gain or loss for federal income tax purposes as a result of
such Legal Defeasance and shall be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the Issuers
have delivered to the Trustee an Opinion of Counsel reasonably acceptable to
the Trustee confirming that the Holders of the outstanding Notes shall not
recognize income, gain or loss for federal income tax purposes as a result of
such Covenant Defeasance and shall be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default has occurred and is continuing on
the date of such deposit (other than a Default or Event of Default resulting
from the borrowing of funds to be applied to such deposit) and the deposit
shall not result in a breach or violation of, or constitute a default under,
any other instrument to which either Issuer, any Restricted Subsidiary or any
Guarantor is a party or by which either Issuer, any Restricted Subsidiary or
any Guarantor is bound;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under any material agreement or
instrument (other than this Indenture) to which either Issuer, any Restricted
Subsidiary or any Guarantor is a party or by which any such Person is bound;
(f) in the case of an election under Section 8.02 hereof, the Issuers
must deliver to the Trustee an Opinion of Counsel to the effect that, assuming
no intervening bankruptcy of the Issuers or any Guarantor between the date of
deposit and the 91st day following the deposit and assuming that no Holder of
Notes is an "insider" of either Issuer under applicable bankruptcy law, after
the 91st day following the deposit, the trust funds shall not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally;
(g) the Issuers must deliver to the Trustee an Officers' Certificate
stating that the deposit was not made by the Issuers with the intent of
preferring the Holders of Notes over the other creditors of the Issuers with
the intent of defeating, hindering, delaying or defrauding creditors of the
Issuers or others; and
(h) the Issuers must deliver to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent relating
to the Legal Defeasance or the Covenant Defeasance have been complied with.
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and Government
Securities (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.05,
the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Issuers
acting as Paying Agent) as the Trustee may determine, to the Holders of
such Notes of all sums due and to become due thereon in respect of
principal, premium and Liquidated Damages, if any, and interest, but such
money need not be segregated from other funds except to the extent required
by law.
The Issuers shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the
principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the
outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary, the
Trustee shall deliver or pay to the Issuers from time to time upon the
request of the Issuers any money or non-callable Government Securities held
by it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 8.04(b) hereof), are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to Issuers.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Issuers, in trust for the payment of the principal of, premium
or Liquidated Damages, if any, or interest on any Note and remaining
unclaimed for two years after such principal, premium or Liquidated
Damages, if any, or interest has become due and payable shall be paid to
the Issuers on its request or (if then held by the Issuers) shall be
discharged from such trust; and the Holder of such Note shall thereafter be
permitted to look only to the Issuers for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Issuers as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before
being required to make any such repayment, may at the expense of the
Issuers cause to be published once, in the New York Times (national
edition) and The Wall Street Journal (national edition), notice that such
money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such notification or
publication, any unclaimed balance of such money then remaining shall be
repaid to the Issuers.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02
or 8.03 hereof, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Issuers' or the Guarantors' obligations under this
Indenture, the Notes, the Note Guarantees and the Collateral Documents shall be
revived and reinstated as though no deposit had occurred pursuant to Section
8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 8.02 or 8.03 hereof, as the
case may be; provided, however, that, if the Issuers make any payment of
principal of, premium or Liquidated Damages, if any, or interest on any Note
following the reinstatement of its obligations, the Issuers shall subrogated to
the rights of the Holders of such Notes to receive such payment from the money
held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, without the
consent of any Holder, the Issuers, any Restricted Subsidiary or any
Guarantor and the Trustee may amend or supplement this Indenture, the
Notes, the Note Guarantees or the Collateral Documents to:
(a) cure any ambiguity, defect or inconsistency;
(b) provide for uncertificated Notes in addition to or in place of
certificated Notes;
(c) provide for the assumption of the Issuers' or any Guarantor's
obligations to the Holders of the Notes and Note Guarantees by a successor to
the Issuers or such Guarantor, as the case may be, in the case of a merger or
consolidation or sale of all or substantially all of the Issuers' or such
Guarantor's assets pursuant to Article 5 hereof;
(d) make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
legal rights hereunder of any such Holder;
(e) comply with requirements of the SEC in order to effect or maintain
the qualification of this Indenture under the TIA;
(f) provide for the issuance of Additional Notes in accordance with
the limitations set forth in this Indenture as of the date of this Indenture;
(g) allow any Guarantor to execute a supplemental indenture and/or a
Note Guarantee with respect to the Notes; or
(h) enter into additional or supplemental Collateral Documents or
Guarantees or an intercreditor agreement with respect thereto.
Upon request of the Issuers, the Trustee will enter into
amendments, restatements and modifications of the Collateral Documents from
time to time in connection with the grant of any Permitted Liens; provided,
however, that any such amended, restated or modified Collateral Documents
shall contain terms no less favorable to the Trustee or the Holders of the
Notes than the terms contained in the Collateral Documents being amended,
restated or modified (except as expressly provided for in this Indenture);
provided, further, that any such amendment, restatement or modification
does not otherwise adversely affect the rights or remedies of the Trustee
or the Holders of the Notes in any material respect (except as expressly
provided for in this Indenture).
Upon the request of the Issuers accompanied by a resolution of
their respective Boards of Directors authorizing the execution of any such
amended or supplemental indenture, and upon receipt by the Trustee of the
documents described in Section 7.02 hereof, the Trustee shall join with the
Issuers and the Guarantors in the execution of any amended or supplemental
indenture authorized or permitted by the terms of this Indenture and to
make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental indenture that affects its own rights, duties
or immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Issuers, the
Guarantors and the Trustee may amend or supplement this Indenture
(including, without limitation, Section 3.10, 4.10, 4.15 and 4.16 hereof)
the Notes, the Note Guarantees and the Collateral Documents with the
consent of the Holders of at least a majority in principal amount of the
then outstanding Notes (including, without limitation, Additional Notes, if
any) voting as a single class (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes), and, subject to Sections 6.04 and 6.07 hereof, any
existing Default or Event of Default (other than a Default or Event of
Default in the payment of the principal of, premium or Liquidated Damages,
if any, or interest on the Notes, except a payment default resulting from
an acceleration that has been rescinded) or compliance with any provision
of this Indenture, the Notes, the Note Guarantees or the Collateral
Documents may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes (including, without
limitation, Additional Notes, if any) voting as a single class (including,
without limitation, consents obtained in connection with purchase of, or a
tender offer or exchange offer for, the Notes).
Upon the request of the Issuers accompanied by a resolution of
their respective Boards of Directors authorizing the execution of any such
amended or supplemental Indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of Notes
as aforesaid, and upon receipt by the Trustee of the documents described in
Section 7.02 hereof, the Trustee shall join with the Issuers and the
Guarantors in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture directly affects the
Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not
be obligated to, enter into such amended or supplemental Indenture.
It is not necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it is sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Issuers shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver.
Any failure of the Issuers to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
amended or supplemental indenture or waiver. Subject to Sections 6.04 and
6.07 hereof, the Holders of a majority in aggregate principal amount of the
Notes then outstanding voting as a single class may waive compliance in a
particular instance by the Issuers with any provision of this Indenture or
the Notes or by the Guarantors with any provision of the Note Guarantees.
However, without the consent of each Holder affected or, in the case of
clauses (h), (i) and (j) below only, without the consent of the Holders of
at least 95% in the aggregate principal amount of the Notes then
outstanding, an amendment, supplement or waiver under this Section 9.02 may
not (with respect to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must consent to
an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note
or alter or waive any of the provisions with respect to the redemption of the
Notes, except as provided above with respect to Sections 3.10, 4.10, 4.15 and
4.16 hereof;
(c) reduce the rate of or change the time for payment of interest,
including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of principal
of, or interest or premium or Liquidated Damages, if any, on the Notes (except
a rescission of acceleration of the Notes by the Holders of at least a majority
in aggregate principal amount of the then outstanding Notes and a waiver of the
payment default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in the Notes;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive payments
of principal of, or interest or premium or Liquidated Damages, if any, on the
Notes;
(g) waive a redemption payment with respect to any Note (other than a
payment required by Sections 3.10, 4.10, 4.15 and 4.16 hereof);
(h) release all or substantially all of the Collateral or release any
Material Project Assets from the Collateral, in each case, except in accordance
with the provisions of the Collateral Documents;
(i) release any Guarantor from any of its obligations under its Note
Guarantee or this Indenture if the assets or properties of that Guarantor (1)
constitute all or substantially all of the Collateral or (2) include Material
Project Assets, except in accordance with the terms of this Indenture;
(j) amend the provisions of Section 10.03 hereof; or
(k) make any change in the foregoing amendment and waiver provisions.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall
be set forth in a amended or supplemental Indenture that complies with the
TIA as then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder
of a Note and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note, even if notation
of the consent is not made on any Note. However, any such Holder of a Note
or subsequent Holder of a Note may revoke the consent as to its Note if the
Trustee receives written notice of revocation before the date the waiver,
supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds
every Holder.
Section 9.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Issuers in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. The Issuers and the Guarantors may not sign an amendment or
supplemental indenture until their respective Boards of Directors approve
it. In executing any amended or supplemental indenture, the Trustee shall
be entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon, in addition to the documents required by Section
14.04 hereof, an Officers' Certificate and an Opinion of Counsel stating
that the execution of such amended or supplemental indenture is authorized
or permitted by this Indenture.
ARTICLE 10.
COLLATERAL AND SECURITY
Section 10.01 Collateral Documents.
The due and punctual payment of the principal of and interest and
premium and Liquidated Damages, if any, on the Notes when and as the same shall
be due and payable, whether on an interest payment date, at maturity, by
acceleration, repurchase, redemption or otherwise, and interest on the overdue
principal of and interest and premium and Liquidated Damages (to the extent
permitted by law), if any, on the Notes and performance of all other
obligations of the Issuers and the Guarantors to the Holders of Notes or the
Trustee under this Indenture and the Notes, according to the terms hereunder or
thereunder, are secured as provided in the Collateral Documents which the
Issuers and the Guarantors have entered into simultaneously with the execution
of this Indenture (including, without limitation, the Collateral Documents
listed on Exhibit H hereto). Each Holder of Notes, by its acceptance thereof,
consents and agrees to the terms of the Collateral Documents (including,
without limitation, the provisions providing for foreclosure and release of
Collateral and limitations on exercise of rights and remedies) as the same may
be in effect or may be amended from time to time in accordance with the terms
of this Indenture and the Collateral Documents and authorizes and directs the
Trustee to enter into the Collateral Documents and to perform its obligations
and exercise its rights thereunder in accordance therewith. The Issuers and
Guarantors shall deliver to the Trustee copies of all documents delivered to
the Collateral Agent pursuant to the Collateral Documents and the Issuers shall
do or cause to be done all such acts and things as may be necessary or proper,
or as may be required by the provisions of the Collateral Documents, to assure
and confirm to the Trustee the security interests in the Collateral
contemplated hereby, by the Collateral Documents or any part thereof, as from
time to time constituted, so as to render the same available (subject to the
terms of the Intercreditor Agreement) for the security and benefit of this
Indenture, the Notes and the Note Guarantees secured by the Collateral
Documents, according to the intent and purposes therein expressed. Subject to
the terms of the Intercreditor Agreement, the Issuers shall take, and shall
cause the Restricted Subsidiaries that are party to one or more Collateral
Documents to take, upon request of the Trustee, any and all actions reasonably
required to cause the Collateral Documents to create and maintain, as security
for the Obligations of the Issuers hereunder and of the Guarantors under the
Note Guarantees, a valid and enforceable perfected Lien of the priority
required by the Collateral Documents in and on all the Collateral, in favor of
the Trustee for the benefit of the Holders of Notes, superior to and prior to
the rights of all third Persons, in each case, equal and ratable with the Liens
securing the obligations under the Credit Agreement and subject to Permitted
Liens and the terms of the Intercreditor Agreement.
Section 10.02 Recording and Opinions.
(a) The Issuers shall furnish to the Trustee simultaneously with the
execution and delivery of this Indenture an Opinion of Counsel either:
(1) stating that, in the opinion of such counsel, all action
has been taken with respect to the recording, registering and filing
of this Indenture, financing statements or other instruments necessary
to make effective the Lien intended to be created by the Collateral
Documents, and reciting with respect to the security interests in the
Collateral, the details of such action; or
(2) stating that, in the opinion of such counsel, no such
action is necessary to make such Lien effective.
(b) The Issuers shall furnish to the Trustee within 30 days after
December 1 in each year beginning with December 30, 2005, an Opinion of
Counsel, dated as of such date, either:
(1) (A) stating that, in the opinion of such counsel, action
has been taken with respect to the recording, registering, filing,
re-recording, re-registering and re-filing of all supplemental
indentures, financing statements, continuation statements or other
instruments of further assurance as is necessary to maintain the Lien
of the Collateral Documents and reciting with respect to the security
interests in the Collateral the details of such action or referring to
prior Opinions of Counsel in which such details are given, and (B)
stating that, in the opinion of such counsel, based on relevant laws
as in effect on the date of such Opinion of Counsel, all financing
statements and continuation statements have been executed and filed
that are necessary as of such date and during the succeeding 12 months
fully to preserve and protect, to the extent such protection and
preservation are possible by filing, the rights of the Holders of
Notes and the Trustee hereunder and under the Collateral Documents
with respect to the security interests in the Collateral;
(2) stating that, in the opinion of such counsel, no such
action is necessary to maintain such Lien and assignment.
(c) The Issuers shall otherwise comply with the provisions of TIA
ss.314(b).
Section 10.03 Release of Collateral.
(a) Subject to the other provisions of this Section 10.03 and the
terms of the Intercreditor Agreement and the other Collateral Documents, the
Trustee will determine the circumstances and manner in which the Collateral
will be disposed of, including the determination of whether to release all of
the Collateral from the security interests created by the Collateral Documents
and whether to foreclose on the Collateral following an Event of Default.
Collateral may be released from the Liens and security interests created by the
Collateral Documents at any time or from time to time in accordance with the
provisions of the Collateral Documents and as provided in this Section 10.03.
Subject to the provisions of the Intercreditor Agreement, upon the request of
the Issuers pursuant to an Officers' Certificate certifying that all terms for
release and conditions precedent under this Indenture and under any applicable
Collateral Document have been met and specifying (1) the identity of the
Collateral to be released and (2) the provisions of this Indenture or the
applicable Collateral Document which authorize such release, the Trustee shall
release the Liens in favor of the Trustee (at the sole cost and expense of the
Issuers) on:
(1) all Collateral that is contributed, sold, leased,
conveyed, transferred or otherwise disposed of (a) in an Asset Sale,
Permitted Dispositions, Permitted Investment or Restricted Payment in
accordance with this Indenture and the Collateral Documents, (b) to an
Unrestricted Subsidiary of Wynn Las Vegas in accordance with this
Indenture and the Collateral Documents or (c) as expressly permitted
by the Collateral Documents;
(2) all Collateral that is condemned, seized or taken by the
power of eminent domain or otherwise confiscated pursuant to an Event
of Loss; provided that the Net Loss Proceeds, if any, from the Event
of Loss are or shall be applied in accordance with Sections 3.10 and
4.16 hereof;
(3) all Collateral (except as provided in Articles 8 and 12
of this Indenture) upon Legal Defeasance as provided for in Section
8.02 hereof or satisfaction and discharge of this Indenture as
provided for Section 12.01 hereof;
(4) all Collateral upon the payment in full in cash in
immediately available funds of all Obligations of the Issuers and the
Guarantors under this Indenture, the Notes, the Note Guarantees and
the Collateral Documents;
(5) except as otherwise provided in this Indenture or the
Collateral Documents, Collateral of a Guarantor whose Note Guarantee
is released or terminated pursuant to the terms of this Indenture;
(6) the Released Assets;
(7) Government Transfers consisting of transfers of fee
interests in real property;
(8) in connection with any sale, lease or other disposition
of any assets in connection with (i) any timeshare, interval ownership
or similar development or (ii) any condominium or similar development
with respect to the Phase III Project, on any assets or interests in
any assets so long as the lenders under the Credit Agreement
concurrently release their security interest in such assets, so long
as no Default or Event of Default exists or is continuing immediately
prior to or after giving effect to such release; and
(9) any Water Rights covered by or relating to any water
permits so long as such Water Rights are covered by or related to
other water permits owned by Wynn Las Vegas or any of its Restricted
Subsidiaries.
(b) The Trustee shall (i) release (at the sole cost and expense of the
Issuers) the Liens granted by Wynn Las Vegas and the Restricted Subsidiaries in
favor of the Trustee for the benefit of the Holders on all of the Collateral,
including the Golf Course Land and (ii) permit the termination of the Golf
Course Lease and the Access Easement Agreement, so long as:
(1) the lenders under the Credit Agreement release their
first Liens on all of the Collateral (provided that it shall not be
deemed to be a release of the first priority Lien requiring the
automatic release of the Trustee's Liens (for the benefit of the
Holders) if the release of the first priority Liens securing the
Credit Agreement is the result of an extension, refinancing, renewal,
replacement, amendment and restatement, restatement, defeasance or
refunding (collectively, a "Refinancing") of the Credit Agreement and
as a result of which the first priority Liens in favor of the
administrative agent (for the benefit of the lenders under the Credit
Agreement) are terminated and/or replaced with Liens in favor of the
lenders or holders of such refinancing Indebtedness (or any agent on
their behalf));
(2) no Default or Event of Default has occurred and is
continuing;
(3) the Phase II Completion Date has occurred;
(4) no Second Mortgage Notes remain outstanding or the
indenture under which the Second Mortgage Notes were issued has been
satisfied and discharged;
(5) the lenders under all other outstanding secured
Indebtedness (other than Indebtedness incurred pursuant to clause (7)
of the definition of Permitted Debt) that is secured by any Collateral
release their security interest in such Collateral; and
(6) Wynn Las Vegas delivers an Officers' Certificate to the
Trustee confirming that the conditions in clauses (1), (2), (3), (4)
and (5) of this Section 10.03(b) have been satisfied.
Upon any such release of those security interests, the
disposition or transfer of such assets shall no longer be subject
to any of the restrictive covenants in this Indenture.
In the event that the Issuers or the Guarantors grant
Liens (other than Liens permitted under clause (25) of the
definition of Permitted Liens) to secure any other Indebtedness
(other than Indebtedness incurred pursuant to clause (7) of the
definition of Permitted Debt) after the Holders' security
interests in all of the Collateral has been released as set forth
in this Section 10.03(b), the Issuers or the Guarantors, as the
case may be, shall be required to grant security interests on the
same assets to secure the Issuers' obligations under the Notes and
the Guarantors' obligations under the Note Guarantees on an equal
and ratable basis with such other Indebtedness, so long as such
other Indebtedness is so secured.
(c) The Trustee shall (i) release (at the sole cost and expense of the
Issuers) the Liens granted by Wynn Las Vegas and the Restricted Subsidiaries in
favor of the Trustee for the benefit of the Holders on all of the Golf Course
Land and (ii) permit the termination of the Golf Course Lease and the Access
Easement Agreement, so long as:
(1) no Default or Event of Default exists or is continuing
immediately prior to or after giving effect to such release,
(2) the lenders under the Credit Agreement concurrently
release their first priority Liens on the Golf Course Land (provided
that it shall not be deemed to be a release of the first priority
Liens requiring the automatic release of the Trustee's Liens (for the
benefit of the Holders) if the release of the first priority Lien
securing the Credit Agreement is the result of a Refinancing of the
Credit Agreement and as a result of which the first priority Liens in
favor of the administrative agent (for the benefit of the lenders
under the Credit Agreement) are terminated and/or replaced with Liens
in favor of the lenders or holders of such refinancing Indebtedness
(or any agent on their behalf)),
(3) the Phase II Completion Date has occurred;
(4) both immediately prior to the release of the security
interest, and after giving pro forma effect to such release, Wynn Las
Vegas' and its Restricted Subsidiaries' total debt does not exceed 6.5
times Consolidated EBITDA for the four full fiscal quarters
immediately preceding such release;
(5) Wynn Las Vegas delivers an Officers' Certificate
(including supporting calculations in reasonable detail) to the
Trustee confirming that the conditions in clauses (1), (2), (3) and
(4) of this Section 10.03(c) have been satisfied.
Notwithstanding the foregoing, if Wynn Las Vegas incurs
debt to finance the project costs related to the building of a
project on the Golf Course Land (the "Phase III Project") pursuant
to clause (8) of Section 4.09(b) hereof, then the security
interest in the Golf Course Land may not be released without first
obtaining the consent of 90% of the Holders of the Notes.
Upon any such release of those security interests, the
disposition or transfer of such assets shall no longer be subject
to any of the restrictive covenants in this Indenture.
(d) The Trustee shall (i) release (at the sole cost and expense of the
Issuers) the Liens granted by Wynn Las Vegas and the Restricted Subsidiaries in
favor of the Trustee for the benefit of the Holders in the Home Site Land and
(ii) permit the amendment of the Golf Course Lease and the Access Easement
Agreement to contemplate the release of the Home Site Land, if the lenders
under the Credit Agreement concurrently release their first priority Liens on
the Home Site Land, so long as no Default or Event of Default exists or is
continuing immediately prior to or after giving effect to such release;
provided that it shall not be deemed to be a release of such first priority
Liens requiring the release by the Trustee of its Liens (for the benefit of the
Holders) on the Home Site Land if the release of such first priority Liens is
as a result of a Refinancing of the Credit Agreement, as a result of which the
first priority Liens in favor of the administrative agent (for the benefit of
the lenders under the Credit Agreement) are terminated and/or replaced with
Liens in favor of the lenders or holders of such refinancing Indebtedness (or
any agent on their behalf). In the event that, following the automatic release
of the Trustee's Liens (for the benefit of the Holders) in the Home Site Land,
Wynn Las Vegas or any of the Restricted Subsidiaries grants a Lien on any or
all of the Home Site Land to secure such refinancing Indebtedness or any
Guarantee thereof, such Person shall concurrently grant a Lien on such portions
of the Home Site Land in favor of the Trustee for the benefit of the Holders to
secure the Notes (or, if such Person is a Guarantor, its Note Guarantee);
provided that the Lien in favor of the Trustee for the benefit of the Holders
shall be a first priority Lien pari pausse with the Liens securing in favor of
the lenders under the Credit Agreement, subject only to other Permitted Liens
and the terms of the Intercreditor Agreement).
(e) The Trustee shall (i) release (at the sole cost and expense of the
Issuers) the Liens granted by Wynn Las Vegas and the Restricted Subsidiaries in
favor of the Trustee for the benefit of the Holders in two acres of the Golf
Course Land in order to permit the construction of a personal residence for
Stephen A. Wynn and (ii) permit the amendment of the Golf Course Lease and the
Access Easement Agreement to contemplate the release of the Wynn Home Site
Land, so long as:
(1) no Default or Event of Default exists or is continuing
immediately prior to or after giving effect to that release,
(2) the cash purchase price paid by Stephen A. Wynn in
immediately available funds for the Wynn Home Site Land prior to the
release of such Liens shall not be less than the then Fair Market
Value of the Wynn Home Site Land,
(3) the purchase price is paid directly to Wynn Golf,
(4) the construction of Stephen A. Wynn's personal residence
shall not materially interfere with the design, construction,
operation or use of the remainder of the Golf Course Land and
otherwise could not reasonably be expected to materially impair the
overall value of the Projects,
(5) the lenders under the Credit Agreement concurrently
release their Liens on the Wynn Home Site Land,
(6) no Points of Diversion with respect to any water permits
held by Wynn Las Vegas or any of its Restricted Subsidiaries or
otherwise utilized or expected to utilized with respect to the
Projects, wells associated therewith or rights-of-way necessary for
the transportation to the Golf Course Land or the Wynn Las Vegas hotel
and casino resort water entertainment features of water drawn or to be
drawn pursuant to water permits, are located on the released Golf
Course Land, or Wynn Golf shall have otherwise transferred or reserved
for the benefit of the Golf Course Land (previously or in connection
with such disposition) at no cost to Wynn Las Vegas and its Restricted
Subsidiaries such easements as are necessary for Wynn Las Vegas and
its Restricted Subsidiaries to (A) access such Points of Diversion,
(B) own and operate such wells and (C) transport such water to the
water features of the Project and/or the Golf Course,
(7) Wynn Las Vegas and Wynn Golf, as the case may be, shall
have taken all actions required pursuant to Section 4.28 hereof with
respect to any assets or property acquired pursuant to clause (6)
above, and
(8) Wynn Las Vegas and/or Wynn Golf delivers an Officers'
Certificate to the Trustee confirming that the conditions in clauses
(1), (2), (3), (4), (5), (6) and (7) of this Section 10.03(e) have
been satisfied.
(f) Upon receipt by the Trustee of the applicable Officers'
Certificate required to be delivered pursuant to Sections 10.03(a), (b), (c),
(d) or (e), as the case may be, the Trustee shall execute, deliver or
acknowledge any necessary or proper instruments of termination, satisfaction or
release to evidence the release of any Collateral permitted to be released
pursuant to this Section 10.03.
(g) The release of any Collateral from the terms of this Indenture and
the Collateral Documents shall not be deemed to impair the security under this
Indenture in contravention of the provisions hereof if and to the extent the
Collateral is released pursuant to the terms of the Collateral Documents or
this Indenture. To the extent applicable, the Issuers shall cause TIA ss.
313(b), relating to reports, and TIA ss. 314(d), relating to the release of
property or securities from the Lien and security interest of the Collateral
Documents and this Indenture and relating to the substitution therefor of any
property or securities to be subjected to the Lien and security interest of the
Collateral Documents and this Indenture, to be complied with. Any certificate
or opinion required by TIA ss. 314(d) may be made by an Officer of Wynn Las
Vegas except in cases where TIA ss. 314(d) requires that such certificate or
opinion be made by an independent Person, which Person shall be an independent
engineer, appraiser or other expert selected or approved by the Trustee in the
exercise of reasonable care.
(h) Notwithstanding anything to the contrary in this Indenture or the
Collateral Documents, no Collateral may be released from the Lien and security
interests created by the Collateral Documents unless the Officers' Certificate
required by this Section 10.03 has been delivered to the Trustee and any
applicable provisions of the Intercreditor Agreement have been complied with.
(i) At any time when a Default or Event of Default has occurred and is
continuing and the maturity of the Notes has been accelerated (whether by
declaration or otherwise), no release of Collateral pursuant to the provisions
of this Section 10.03 or the Collateral Documents shall be effective as against
the Holders of Notes.
Section 10.04 Certificates of the Issuers.
In addition to the requirements under Section 10.03, the Issuers
shall furnish to the Trustee and the Collateral Agent, prior to each
proposed release of Collateral pursuant to the Collateral Documents:
(a) all documents required by TIA ss.314(d) and the Collateral
Documents; and
(b) an Opinion of Counsel, which may be rendered by internal counsel
to the Issuers, to the effect that such accompanying documents constitute all
documents required by TIA ss.314(d).
The Trustee may, to the extent permitted by Sections 7.01 and 7.02
hereof, accept as conclusive evidence of compliance with the foregoing
provisions the appropriate statements contained in such documents and such
Opinion of Counsel.
Section 10.05 Certificates of the Trustee.
In the event that the Issuers wish to release Collateral in
accordance with the Collateral Documents and have delivered the
certificates and documents required by the Collateral Documents and
Sections 10.03 and 10.04 hereof, the Trustee shall determine whether it has
received all documentation required by TIA ss. 314(d) in connection with
such release and, based on such determination and the Opinion of Counsel
delivered pursuant to Section 10.04(2) hereof, shall deliver a certificate
to the Collateral Agent setting forth such determination.
Section 10.06 Authorization of Actions to Be Taken by the Trustee Under the
Collateral Documents.
Subject to the provisions of Section 7.01 and 7.02 hereof and the
Collateral Documents, the Trustee may, in its sole discretion and without
the consent of the Holders of Notes, direct, on behalf of the Holders of
Notes, the Collateral Agent to, take all actions it deems necessary or
appropriate in order to:
(a) enforce any of the terms of the Collateral Documents; and
(b) collect and receive any and all amounts payable in respect of the
Obligations of the Issuers and the Guarantors hereunder and under the
Collateral Documents.
The Trustee shall have power to institute and maintain such suits
and proceedings as it may deem expedient to prevent any impairment of the
Collateral by any acts that may be unlawful or in violation of the
Collateral Documents or this Indenture, and such suits and proceedings as
the Trustee may deem expedient to preserve or protect its interests and the
interests of the Holders of Notes in the Collateral (including power to
institute and maintain suits or proceedings to restrain the enforcement of
or compliance with any legislative or other governmental enactment, rule or
order that may be unconstitutional or otherwise invalid if the enforcement
of, or compliance with, such enactment, rule or order would impair the
security interest hereunder or be prejudicial to the interests of the
Holders of Notes or of the Trustee).
Section 10.07 Authorization of Receipt of Funds by the Trustee Under the
Collateral Documents.
The Trustee is authorized to receive any funds for the benefit of
the Holders of Notes distributed under the Collateral Documents, and to
make further distributions of such funds to the Holders of Notes according
to the provisions of this Indenture.
Section 10.08 Rights in the Pledged Collateral.
(a) So long as no Event of Default shall have occurred and be continuing,
and subject to the provisions of this Indenture, the Intercreditor
Agreement and the other Collateral Documents, Wynn Las Vegas and each
Guarantor shall be entitled to receive the benefit of all cash dividends,
interest and other payments made upon or with respect to the Collateral
pledged by such Person and to exercise any voting and other consensual
rights pertaining to the Collateral pledged by such Person. Upon the
occurrence and during the continuance of an Event of Default and, subject
to the terms of the Collateral Documents and the limitations in the
Intercreditor Agreement and the exercise by the Trustee of its rights under
the Collateral Documents:
(1) upon receipt by the affected Person of notice from the Trustee
so stating, all rights of such Person to exercise such voting or other
consensual rights shall cease, and all such rights shall become vested in
the Trustee which, to the extent permitted by law, shall have the sole
right to exercise such rights;
(2) all rights of such Person to receive all cash dividends,
interest and other payments made upon, or with respect to, the Collateral
shall cease and such cash dividends, interest and other payments shall be
paid to the Trustee; and
(3) subject to applicable law, the Trustee may sell the Collateral
or any part thereof in accordance with the terms of this Indenture, the
Intercreditor Agreement and the other Collateral Documents.
(b) Nothing contained in this Section 10.08 shall be deemed to restrict the
ability of Wynn Las Vegas to make the Restricted Payments permitted to be
made during the occurrence of an Event of Default under Section 4.07(b)
hereof.
Section 10.09 Termination of Security Interest.
Upon the payment in full in immediately available funds of all
Obligations of the Issuers under this Indenture and the Notes, or upon
Legal Defeasance, the Trustee shall, at the written request of the Issuers,
deliver a certificate to the Collateral Agent stating that such Obligations
have been paid in full, and instruct the Collateral Agent to release the
Liens on the Collateral pursuant to this Indenture and the Collateral
Documents and to take such actions at the Issuers' sole cost and expense as
the Issuers may reasonably request to evidence such release, including,
without limitation, the return of assets pledged as Collateral and the
execution and delivery of related instruments of transfer, lien, releases,
reconveyances, termination statements and any similar documents and
instruments.
ARTICLE 11.
NOTE GUARANTEES
Section 11.01 Note Guarantee.
(a) Subject to this Article 11, each of the Guarantors hereby, jointly
and severally, unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of this
Indenture, the Notes, the Collateral Documents or the obligations of the
Issuers hereunder or thereunder, that:
(1) the principal of, premium and Liquidated Damages, if any,
and interest on the Notes shall be promptly paid in full when due,
whether at maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of and interest on the Notes, if
any, if lawful, and all other obligations of the Issuers to the
Holders or the Trustee hereunder or thereunder shall be promptly paid
in full or performed, all in accordance with the terms hereof and
thereof; and
(2) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, that same shall be
promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors shall be
jointly and severally obligated to pay the same immediately. Each Guarantor
agrees that this is a guarantee of payment and performance and not a
guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder are
unconditional, irrespective of the validity, regularity or enforceability of
the Notes, this Indenture or the Collateral Documents, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any judgment
against the Issuers, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
Guarantor. Each of the Guarantors hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of insolvency or
bankruptcy of either Issuer, any right to require a proceeding first against
the Issuers, protest, notice and all demands whatsoever and covenant that this
Note Guarantee shall not be discharged except by complete performance of the
obligations contained in the Notes and this Indenture. Each Guarantor waives
any right or claims of right to cause a marshalling of the Issuers' or any
Guarantor's assets or to proceed against any Guarantor, any Issuer or any other
guarantor of any Obligations that are Guaranteed in any particular order,
including, but not limited to, any right arising out of Nevada Revised Statutes
40.430, to the fullest extent permitted by Nevada Revised Statutes 40.495(2).
(c) If any Holder or the Trustee is required by any court or otherwise
to return to the Issuers, the Guarantors or any custodian, trustee, liquidator
or other similar official acting in relation to either Issuer or any Guarantor,
any amount paid by either to the Trustee or such Holder, this Note Guarantee,
to the extent theretofore discharged, shall be reinstated in full force and
effect.
(d) Each of the Guarantors agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each of the Guarantors further agrees that, as between the Guarantors, on the
one hand, and the Holders and the Trustee, on the other hand, (1) the maturity
of the obligations guaranteed hereby may be accelerated as provided in Article
6 hereof for the purposes of this Note Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (2) in the event of any declaration of
acceleration of such obligations as provided in Article 6 hereof, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of this Note Guarantee. The
Guarantors shall have the right to seek contribution from any non-paying
Guarantor, as the case may be, so long as the exercise of such right does not
impair the rights of the Holders under the Note Guarantee.
Section 11.02 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Note
Guarantee of such Guarantor not constitute a fraudulent transfer or
conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal
or state law to the extent applicable to any Note Guarantee. To effectuate
the foregoing intention, the Trustee, the Holders and the Guarantors hereby
irrevocably agree that the obligations of each such Guarantor shall be
limited to the maximum amount that shall, after giving effect to such
maximum amount and all other contingent and fixed liabilities of such
Guarantor, as the case may be, that are relevant under such laws, and after
giving effect to any collections from, rights to receive contribution from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 11, result in the
obligations of such Guarantor under its Note Guarantee not constituting a
fraudulent transfer or conveyance.
Section 11.03 Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 11.01, each of
the Guarantors hereby agrees that a notation of such Note Guarantee
substantially in the form attached as Exhibit E hereto shall be endorsed by
an Officer of such Guarantor on each Note authenticated and delivered by
the Trustee and that this Indenture shall be executed on behalf of such
Guarantor by one of its Officers.
Each of the Guarantors hereby agrees that its Note Guarantee set
forth in Section 11.01 shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such Note
Guarantee.
If an Officer whose signature is on this Indenture or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates
the Note on which a Note Guarantee is endorsed, the Note Guarantee shall be
valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Note Guarantee set
forth in this Indenture on behalf of the Guarantors.
In the event that the Issuers create or acquire any Subsidiary
after the date of this Indenture, if required by Sections 4.24 and 4.28
hereof, the Issuers shall cause such Subsidiary to comply with the
provisions of Sections 4.24 and 4.28 hereof and this Article 11, to the
extent applicable.
Section 11.04 Guarantors May Consolidate, etc., on Certain Terms.
(a) A Guarantor may not sell or otherwise dispose of all or
substantially all of its assets to, or consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person) another Person, other
than either of the Issuers or another Guarantor, unless:
(1) immediately after giving effect to that transaction, no
Default or Event of Default exists; and
(2) either:
(a) the Person acquiring the property in any such sale or
disposition or the Person formed by or surviving any such
consolidation or merger assumes all the obligations of that Guarantor
under this Indenture, its Note Guarantee and the Registration Rights
Agreement pursuant to a supplemental indenture and other appropriate
documents satisfactory to the Trustee; or
(b) the Net Proceeds of such sale or other disposition are
applied in accordance with Section 4.10 hereof.
(b) In case of any consolidation, merger, sale or conveyance of or
involving a Guarantor under this Section 11.04 hereof, and upon the assumption
by the successor Person, by supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the Note Guarantee
endorsed upon the Notes and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Guarantor,
such successor Person shall succeed to and be substituted for the Guarantor
with the same effect as if it had been named herein as a Guarantor. Such
successor Person thereupon may cause to be signed any or all of the Note
Guarantees to be endorsed upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Issuers and delivered to the
Trustee. All the Note Guarantees so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Note Guarantees theretofore
and thereafter issued in accordance with the terms of this Indenture as though
all of such Note Guarantees had been issued at the date of the execution
hereof.
(c) Except as set forth in Articles 4 and 5 hereof, nothing contained
in this Indenture or in any of the Notes shall prevent any consolidation or
merger of a Guarantor with or into the Issuers or another Guarantor, or shall
prevent any sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Issuers or another Guarantor.
(d) Notwithstanding the foregoing, each Guarantor is permitted to
reorganize as a corporation pursuant to a Permitted C-Corp. Conversion.
Section 11.05 Releases Following Sale of Assets.
Subject to compliance with Section 11.04 hereof, the Note
Guarantee of a Guarantor and the security interests granted by that
Guarantor to secure its Note Guarantee shall be released: (1) in connection
with any sale or other disposition of all or substantially all of the
assets of that Guarantor (including by way of merger or consolidation) to a
Person that is not (either before or after giving effect to such
transaction) Wynn Las Vegas or one of its Restricted Subsidiaries, if the
sale or other disposition complies with the applicable provisions of this
Indenture, including, without limitation, Section 4.10 hereof; or (2) in
connection with any sale of all of the Capital Stock of a Guarantor to a
Person that is not (either before or after giving effect to such
transaction) Wynn Las Vegas or one of its Restricted Subsidiaries, if the
sale complies with the applicable provisions of this Indenture, including,
without limitation, Section 4.10 hereof. Upon delivery by Wynn Las Vegas to
the Trustee of an Officers' Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the Issuers in
accordance with the provisions of this Indenture, including, without
limitation, Section 4.10 hereof, the Trustee shall execute any documents
reasonably required in order to evidence the release of any Guarantor from
its obligations under its Note Guarantee.
Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal of and
interest and premium, if any, on the Notes and for the other obligations of
any Guarantor under this Indenture as provided in this Article 11.
Section 11.06 Release of Guarantees.
Subject to compliance with the provisions described above under
this Article 11, the Note Guarantee of a Guarantor and the security
interests granted by that Guarantor to secure its Note Guarantee will be
released:
(a) if the lenders under the Credit Agreement release the guarantees
by such Guarantor under the Credit Agreement (provided that it will not be
deemed to be a release of the first priority security interest requiring the
automatic release of the Trustee's Liens (for the benefit of the Holders) if
the release of the first priority lien securing the Credit Agreement is the
result of a Refinancing of the Credit Agreement and as a result of which the
first priority liens in favor of the administrative agent (for the benefit of
the lenders under the Credit Agreement) are terminated and/or replaced with
liens in favor of the lenders or holders of such refinancing Indebtedness (or
any agent on their behalf);
(b) in connection with any sale or other disposition of all or
substantially all of the assets of that Guarantor (including by way of merger
or consolidation) to a Person that is not (either before or after giving effect
to such transaction) an Issuer or a Restricted Subsidiary of Wynn Las Vegas, if
the sale or other disposition is made in compliance with Section 4.10 hereof,
and if, after giving effect to such sale or other disposition, such Guarantor
is an Immaterial Subsidiary;
(c) in connection with any sale or other disposition of all of the
Capital Stock of that Guarantor to a Person that is not (either before or after
giving effect to such transaction) an Issuer or a Restricted Subsidiary of Wynn
Las Vegas, if the sale or other disposition does not violate Section 4.10
hereof;
(d) if Wynn Las Vegas designates any Restricted Subsidiary that is a
Guarantor to be an Unrestricted Subsidiary in accordance with Section 4.17
hereof; or
(e) upon Legal Defeasance as provided for in Section 8.02 hereof or
satisfaction and discharge of this Indenture as provided for in Section 12.01
hereof.
In addition to the release of any Note Guarantee by the applicable
Guarantor as described in this Section 11.06, the obligations of the
Guarantors under the Note Guarantees will be released if all of the
Collateral is released as provided for in Section 10.03(b) hereof.
ARTICLE 12.
satisfaction and discharge
Section 12.01 Satisfaction and Discharge.
This Indenture and the Collateral Documents shall be discharged
and shall cease to be of further effect as to all Notes issued hereunder,
when:
(a) either:
(1) all Notes that have been authenticated, except lost,
stolen or destroyed Notes that have been replaced or paid and Notes
for whose payment money has theretofore been deposited in trust and
thereafter repaid to the Issuers, have been delivered to the Trustee
for cancellation; or
(2) all Notes that have not been delivered to the Trustee for
cancellation will become due and payable by reason of the mailing of a
notice of redemption or otherwise or will become due and payable
within one year and the Issuers have or any Guarantor has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust solely for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as shall be sufficient without consideration of any
reinvestment of interest, to pay and discharge the entire Indebtedness
on the Notes not delivered to the Trustee for cancellation for
principal, premium and Liquidated Damages, if any, and accrued
interest to the date of maturity or redemption;
(b) no Default or Event of Default has occurred and is continuing on
the date of such deposit or shall occur as a result of the deposit (other than
a Default or Event of Default resulting from the borrowing of funds to be
applied to such deposit) and the deposit shall not result in a breach or
violation of, or constitute a default under, any other instrument to which
either Issuer or any Guarantor is a party or by which either Issuer or any
Guarantor is bound;
(c) the Issuers or any Guarantor have paid or caused to be paid all
sums payable by the Issuers under this Indenture; and
(d) the Issuers have delivered irrevocable instructions to the Trustee
under this Indenture to apply the deposited money toward the payment of the
Notes at maturity or the redemption date, as the case may be.
In addition, the Issuers must deliver an Officers' Certificate and an
Opinion of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture,
if money has been deposited with the Trustee pursuant to subclause (2) of
clause (a) of this Section, the provisions of Section 12.02 and Section
8.06 shall survive. In addition, nothing in this Section 12.01 shall be
deemed to discharge those provisions of Section 7.07 hereof, that, by their
terms, survive the satisfaction and discharge of this Indenture.
Section 12.02 Application of Trust Money.
Subject to the provisions of Section 8.06, all money deposited
with the Trustee pursuant to Section 12.01 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuers acting as their own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium
and Liquidated Damages, if any) and interest for whose payment such money
has been deposited with the Trustee; but such money need not be segregated
from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 12.01 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Issuers' and any Guarantor's obligations under this
Indenture, the Notes, the Note Guarantees and the Collateral Documents
shall be revived and reinstated as though no deposit had occurred pursuant
to Section 12.01; provided that if the Issuers have made any payment of
principal of, premium or Liquidated Damages, if any, or interest on any
Notes because of the reinstatement of its obligations, the Issuers shall be
subrogated to the rights of the Holders of such Notes to receive such
payment from the money or Government Securities held by the Trustee or
Paying Agent.
ARTICLE 13.
joint and several liability
Section 13.01 Joint and Several Liability.
(a) Notwithstanding any contrary provision contained in this
Indenture, the Notes and the Collateral Documents to which both of the Issuers
are a party, the covenants, agreements and obligations of the Issuers, and
either of them, shall be deemed joint and several obligations of the Issuers.
Any waiver including, without limitation, any suretyship waiver, made by either
Issuer in this Indenture, the Notes or any Collateral Document to which both of
the Issuers are a party shall be deemed to be made also by the other Issuer and
references in any such waiver to either Issuer shall be deemed to include the
other Issuer and each of them to the fullest extent permitted by applicable
law.
(b) Notwithstanding any contrary provision contained in this
Indenture, the Notes or any Collateral Document to which both of the Issuers
are a party, each such document to which both Issuers are party shall be deemed
to include, without limitation, the following waivers:
Each of the Issuers hereby waives and relinquishes all rights and
remedies accorded by applicable law to sureties or guarantors and agrees
not to assert or take advantage of any such rights or remedies, including,
without limitation, (i) any right to require the Trustee or any of the
Holders (each a "Beneficiary") to proceed against either of the Issuers or
any other Person or to proceed against or exhaust any security held by a
Beneficiary at any time or to pursue any other remedy in the power of a
Beneficiary before proceeding against such Issuer or other Person, (ii) the
defense of the statute of limitations in any action hereunder or in any
action for the collection or performance of the Obligations under the
Indenture, the Notes and any of the Collateral Documents (collectively, the
"Note Obligations"), (iii) any defense that may arise by reason of the
incapacity, lack of authority, death or disability of any Person or the
failure of a Beneficiary to file or enforce a claim against the estate (in
administration, bankruptcy or any other proceeding) of any Person, (iv)
appraisal, valuation, stay, extension, marshaling of assets, redemption,
exemption, demand, presentment, protest and notice of any kind, including,
without limitation, notice of the existence, creation or incurring of any
new or additional indebtedness or obligation or of any action or non action
on the part of a Beneficiary, any Issuer, any endorser, guarantor or
creditor of either Issuer or on the part of any other Person under this or
any other instrument or document in connection with any Obligation or
evidence of Indebtedness held by a Beneficiary as collateral or in
connection with the Note Obligations, (v) any defense based upon an
election of remedies by a Beneficiary, including, without limitation, an
election to proceed by non judicial rather than judicial foreclosure, which
destroys or otherwise impairs the subrogation rights of either Issuer, the
right of either Issuer to proceed against the other Issuer or any other
Person for reimbursement, or both, (vi) any defense based upon any statute
or rule of law which provides that the obligation of a surety must be
neither larger in amount nor in other respects more burdensome than that of
the principal, (vii) any duty on the part of a Beneficiary to disclose to
either Issuer any facts a Beneficiary may now or hereafter know about
either of the Issuers or any other Person, regardless of whether a
Beneficiary has reason to believe that any such facts materially increase
the risk beyond that which such Issuer intends to assume, or has reason to
believe that such facts are unknown to such Issuer, or has a reasonable
opportunity to communicate such facts to the either Issuer, because each
Issuer acknowledges that each Issuer is fully responsible for being and
keeping informed of the financial condition of each of the Issuers or any
other Person and of all circumstances bearing on the risk of non payment of
any Note Obligations, (viii) any defense arising because of the election of
a Beneficiary, in any proceeding instituted under the Bankruptcy Law, of
the application of Section 1111(b)(2) of the Bankruptcy Law, (ix) any
defense based upon any borrowing or grant of a security interest under
Section 364 of the Bankruptcy Law, (x) any claim or other rights which it
may now or hereafter acquire against the other Issuer or any other Person
that arises from the existence of performance of each Issuer of its
obligations under this Indenture, the Notes or any Collateral Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, any right to participate in any
claim or remedy by a Beneficiary against the other Issuer or any collateral
which a Beneficiary now has or hereafter acquires, whether or not such
claim, remedy or right arises in equity or under contract, statute or
common law, by any payment made hereunder or otherwise, including, without
limitation, the right to take or receive from either of the Issuers or any
other Person, directly or indirectly, in cash or other property or by set
off or in any other manner, payment or security on account of such claim or
other rights, (xi) any rights which it may acquire by way of contribution
under this Indenture, the Notes or any Collateral Document, by any payment
made hereunder or otherwise, including, without limitation, the right to
take or receive from any other Person, directly or indirectly, in cash or
other property or by set off or in any other manner, payment or security on
account of such contribution rights, and (xii) any defense based on one
action laws and any other anti deficiency protections granted to guarantors
by applicable law. No failure or delay on the Trustee's part in exercising
any power, right or privilege under this Indenture shall impair or waive
one such power, right or privilege. Each of the Issuers acknowledges and
agrees that any nonrecourse or exculpation provided for in this Indenture,
the Notes or any Collateral Document, or any other provision of this
Indenture, the Notes or any Collateral Document, limiting the
Beneficiaries' recourse to specific collateral, or limiting the
Beneficiaries' right to enforce a deficiency judgment against the Issuers,
shall have absolutely no application to the Issuers' liability under this
Indenture, the Notes or any Collateral Documents.
(c) In the event of any inconsistency between the provisions of this
Article 13 and the corresponding provisions of this Indenture, the Notes or any
Collateral Document to which both of the Issuers are a party, the provisions of
this Indenture shall govern.
ARTICLE 14.
MISCELLANEOUS
Section 14.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA ss.318(c), the imposed duties shall control.
Section 14.02 Notices.
Any notice or communication by the Issuers, any Guarantor or the
Trustee to the others is duly given if in writing and delivered in Person
or mailed by first class mail (registered or certified, return receipt
requested), telex, telecopier or overnight air courier guaranteeing next
day delivery, to the others' address:
If to the Issuers and/or any Guarantor:
c/o Wynn Las Vegas, LLC
3131 Las Vegas Boulevard, South
Las Vegas, NV 89109
Telecopier No.: (702) 770-1100
Attention: President
With a copy to:
c/o Wynn Las Vegas, LLC
3131 Las Vegas Boulevard, South
Las Vegas, NV 89109
Telecopier No.: (702) 770-1520
Attention: General Counsel
With a further copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue, Suite 3400
Los Angeles, CA 90071-3144
Telecopier No.: (213) 621-5010
Attention: Jerome Coben, Esq.
If to the Trustee:
U.S. Bank National Association
EP-MN-WS3C 60 Livingston Avenue St.
Paul, MN 55107-2292
Telecopier No.: (651) 495-8097
Attention: Corporate Trust Department
The Issuers, any Guarantor or the Trustee, by notice to the others
may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA ss. 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Issuers mail a notice or communication to Holders, they shall
mail a copy to the Trustee and each Agent at the same time.
Section 14.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Issuers,
the Guarantors, the Trustee, the Registrar and anyone else shall have the
protection of TIA ss. 312(c).
Section 14.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee to take
any action under this Indenture, the Issuers shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which must include the statements set forth in
Section 14.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which must include the statements set forth in
Section 14.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
Section 14.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) must comply with the provisions of TIA
ss. 314(e) and must include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
Section 14.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules
and set reasonable requirements for its functions.
Section 14.07 No Personal Liability of Directors, Officers, Employees and
Equity Holders.
No past, present or future director, officer, employee,
incorporator, organizer, equity holder or member of either Issuer, any of
the Restricted Subsidiaries or any Guarantor, as such, shall have any
liability for any obligations of either Issuer, any such Restricted
Subsidiary or any Guarantor under the Notes, the Note Guarantees, this
Indenture, the Collateral Documents or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. The waiver
may not be effective to waive liabilities under the federal securities
laws.
Section 14.08 Governing Law.
THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK
OBLIGATIONS LAW.
Section 14.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Issuers or their respective Subsidiaries or
of any other Person. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.
Section 14.10 Successors.
All agreements of the Issuers in this Indenture and the Notes
shall bind their successors. All agreements of the Trustee in this
Indenture shall bind its successors. All agreements of each Guarantor in
this Indenture shall bind its successors, except as otherwise provided in
Section 11.05.
Section 14.11 Severability.
In case any provision in this Indenture or in the Notes is
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 14.12 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the
same agreement.
Section 14.13 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and
shall in no way modify or restrict any of the terms or provisions hereof.
[Signatures Pages Follow]
SIGNATURES
Dated as of December 14, 2004 ISSUERS:
WYNN LAS VEGAS, LLC,
a Nevada limited liability company
By: Wynn Resorts Holdings, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited, a Nevada
corporation, its sole member
/s/ Ronald J. Kramer
---------------------------------
Name: Ronald J. Kramer
Title: President
WYNN LAS VEGAS CAPITAL CORP.,
a Nevada corporation,
By: /s/ Ronald J. Kramer
---------------------------------
Name: Ronald J. Kramer
Title: President
GUARANTORS:
LAS VEGAS JET, LLC,
a Nevada limited liability company
By: Wynn Las Vegas, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts Holdings, LLC,
a Nevada limited liability
company, its sole member
By: Wynn Resorts, Limited, a Nevada
corporation, its sole member
/s/ Ronald J. Kramer
---------------------------
Name: Ronald J. Kramer
Title: President
WORLD TRAVEL, LLC,
a Nevada limited liability company
By: Wynn Las Vegas, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts Holdings, LLC,
a Nevada limited liability
company,its sole member
By: Wynn Resorts, Limited, a Nevada
corporation, its sole member
/s/ Ronald J. Kramer
---------------------------
Name: Ronald J. Kramer
Title: President
WYNN GOLF, LLC,
a Nevada limited liability company
By: Wynn Las Vegas, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts Holdings, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited, a
Nevada corporation, its sole
member
/s/ Ronald J. Kramer
---------------------------
Name: Ronald J. Kramer
Title: President
WYNN SHOW PERFORMERS, LLC,
a Nevada limited liability company
By: Wynn Las Vegas, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts Holdings, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited, a Nevada
corporation, its sole member
/s/ Ronald J. Kramer
---------------------------
Name: Ronald J. Kramer
Title: President
WYNN SUNRISE, LLC,
a Nevada limited liability company
By: Wynn Las Vegas, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts Holdings, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited, a Nevada
corporation, its sole member
/s/ Ronald J. Kramer
---------------------------
Name: Ronald J. Kramer
Title: President
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Lori-Anne Rosenberg
---------------------------
Name: Lori-Anne Rosenberg
Title: Vice President