Exhibit 10.2
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CREDIT AGREEMENT
among
WYNN LAS VEGAS, LLC,
as the Borrower,
The Several Lenders
from Time to Time Party Hereto,
DEUTSCHE BANK SECURITIES INC.,
as Lead Arranger and Joint Book Running Manager,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent, Issuing Lender and Swing Line Lender,
BANC OF AMERICA SECURITIES LLC,
as Lead Arranger and Joint Book Running Manager,
BANK OF AMERICA, N.A.,
as Syndication Agent,
BEAR, STEARNS & CO. INC.,
as Arranger and Joint Book Running Manager,
BEAR STEARNS CORPORATE LENDING INC.,
as Joint Documentation Agent,
J. P. MORGAN SECURITIES INC.,
as Arranger and Joint Book Running Manager,
JPMORGAN CHASE BANK, N.A.,
as Joint Documentation Agent,
SG AMERICAS SECURITIES, LLC,
as Arranger and Joint Book Running Manager,
and
SOCIETE GENERALE,
as Joint Documentation Agent
Dated as of December 14, 2004
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TABLE OF CONTENTS
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Page
SECTION 1. DEFINITIONS............................................................................................1
1.1 Defined Terms...................................................................................1
1.2 Other Definitional Provisions..................................................................51
1.3 Certain Financial Calculations.................................................................52
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.......................................................................52
2.1 Term Loan Commitments..........................................................................52
2.2 Scheduled Amortization of Term Loans...........................................................52
2.3 Revolving Credit Commitments...................................................................53
2.4 Term Loan Call Protection......................................................................53
2.5 Procedure for Borrowing........................................................................54
2.6 Swing Line Commitment..........................................................................56
2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line Loans..............................56
2.8 Repayment of Loans; Evidence of Indebtedness...................................................58
2.9 Commitment Fees, etc...........................................................................59
2.10 Termination or Reduction of Revolving Credit Commitments.......................................59
2.11 Optional Prepayments...........................................................................60
2.12 Mandatory Prepayments and Commitment Reductions................................................60
2.13 Conversion and Continuation Options............................................................63
2.14 Minimum Amounts and Maximum Number of Eurodollar Tranches......................................64
2.15 Interest Rates and Payment Dates...............................................................64
2.16 Computation of Interest and Fees...............................................................64
2.17 Inability to Determine Interest Rate...........................................................65
2.18 Pro Rata Treatment and Payments................................................................65
2.19 Requirements of Law............................................................................67
2.20 Taxes..........................................................................................68
2.21 Indemnity......................................................................................70
2.22 Illegality.....................................................................................71
2.23 Change of Lending Office.......................................................................71
2.24 Insurance Proceeds and Eminent Domain Proceeds.................................................71
2.25 Replacement of Lenders under Certain Circumstances.............................................75
SECTION 3. LETTERS OF CREDIT.....................................................................................76
3.1 L/C Commitment.................................................................................76
3.2 Procedure for Issuance of Letters of Credit....................................................76
3.3 Fees and Other Charges.........................................................................77
3.4 L/C Participations.............................................................................78
3.5 Reimbursement Obligation of the Borrower.......................................................79
3.6 Responsibility of Issuing Lender With Respect to Requests for Drawings and Payments;
Obligations Absolute...........................................................................79
SECTION 4. REPRESENTATIONS AND WARRANTIES........................................................................81
4.1 Financial Condition............................................................................81
4.2 No Change......................................................................................81
4.3 Corporate/LLC Existence; Compliance with Law...................................................81
4.4 Power; Authorization; Enforceable Obligations..................................................82
4.5 No Legal Bar...................................................................................82
4.6 No Material Litigation.........................................................................83
4.7 No Default.....................................................................................83
4.8 Ownership of Property; Liens...................................................................83
4.9 Intellectual Property..........................................................................83
4.10 Taxes..........................................................................................84
4.11 Federal Regulations............................................................................85
4.12 Labor Matters and Acts of God..................................................................85
4.13 ERISA..........................................................................................85
4.14 Investment Company Act; Other Regulations......................................................86
4.15 Subsidiaries...................................................................................86
4.16 Use of Proceeds; Letters of Credit.............................................................86
4.17 Environmental Matters..........................................................................86
4.18 Accuracy of Information, etc...................................................................87
4.19 Security Documents.............................................................................88
4.20 Solvency.......................................................................................89
4.21 Senior Indebtedness............................................................................89
4.22 Regulation H...................................................................................89
4.23 Insurance......................................................................................89
4.24 Performance of Agreements; Material Contracts..................................................90
4.25 Real Estate....................................................................................90
4.26 Permits........................................................................................91
4.27 Sufficiency of Interests.......................................................................92
4.28 Utilities......................................................................................92
4.29 Fiscal Year....................................................................................92
SECTION 5. CONDITIONS PRECEDENT..................................................................................92
5.1 Conditions to Closing Date.....................................................................92
5.2 Conditions to Extensions of Credit Pursuant to Section 2.5(a) or 3.2(a)........................92
5.3 Conditions to Extensions of Credit Requested Pursuant to Section 2.5(b), 2.5(c) or 3.2(b)......93
SECTION 6. AFFIRMATIVE COVENANTS.................................................................................93
6.1 Financial Statements...........................................................................94
6.2 Certificates; Other Information................................................................95
6.3 Payment of Obligations.........................................................................97
6.4 Conduct of Business and Maintenance of Existence, etc..........................................98
6.5 Maintenance of Property; Leases; Insurance.....................................................98
6.6 Inspection of Property; Books and Records; Discussions.........................................98
6.7 Aircraft Security..............................................................................99
6.8 Environmental Laws; Permits....................................................................99
6.9 Dissolution of the Completion Guarantor.......................................................100
6.10 Additional Collateral, Discharge of Liens, etc................................................101
6.11 Use of Proceeds and Revenues..................................................................103
6.12 Compliance with Laws, Project Documents, etc.; Permits........................................104
6.13 Further Assurances............................................................................104
SECTION 7. NEGATIVE COVENANTS...................................................................................105
7.1 Financial Condition Covenants.................................................................105
7.2 Limitation on Indebtedness....................................................................107
7.3 Limitation on Liens...........................................................................109
7.4 Limitation on Fundamental Changes.............................................................112
7.5 Limitation on Disposition of Property.........................................................112
7.6 Limitation on Restricted Payments.............................................................117
7.7 Limitation on Capital Expenditures............................................................118
7.8 Limitation on Investments.....................................................................119
7.9 Limitation on Optional Payments and Modifications of Governing Documents......................121
7.10 Limitation on Transactions with Affiliates....................................................121
7.11 Limitation on Sales and Leasebacks............................................................123
7.12 Limitation on Changes in Fiscal Periods.......................................................123
7.13 Limitation on Negative Pledge Clauses.........................................................123
7.14 Limitation on Restrictions on Subsidiary Distributions, etc...................................124
7.15 Limitation on Lines of Business...............................................................124
7.16 Restrictions on Changes.......................................................................124
7.17 Limitation on Formation and Acquisition of Subsidiaries and Purchase of Capital Stock.........125
7.18 Limitation on Hedge Agreements................................................................125
7.19 Limitation on Sale or Discount of Receivables.................................................125
7.20 Limitation on Zoning and Contract Changes and Compliance......................................125
7.21 No Joint Assessment; Separate Lots............................................................125
7.22 Restrictions on Payments of Management Fees...................................................126
7.23 Project Costs for the Phase II Project........................................................126
7.24 Permitted Activities of Wynn Resorts Holdings.................................................126
7.25 Limitation on Golf Course Land and Golf Course Development....................................126
7.26 Acquisition of Real Property..................................................................127
7.27 Project Liquidity Reserve Account.............................................................128
7.28 Golf Course Lease Termination.................................................................128
SECTION 8. EVENTS OF DEFAULT....................................................................................128
SECTION 9. THE AGENTS; THE ARRANGERs; THE MANAGERS..............................................................134
9.1 Appointment...................................................................................134
9.2 Delegation of Duties..........................................................................134
9.3 Exculpatory Provisions........................................................................134
9.4 Reliance......................................................................................135
9.5 Notice of Default.............................................................................135
9.6 Non-Reliance on Agents, Managers, Arrangers and Other Lenders.................................135
9.7 Indemnification...............................................................................136
9.8 Arrangers, Agents and Managers in Their Individual Capacities.................................137
9.9 Successor Agents..............................................................................137
9.10 Authorization.................................................................................138
9.11 The Arrangers, Managers, Syndication Agent and Documentation Agents...........................138
9.12 Withholdings..................................................................................138
SECTION 10. MISCELLANEOUS.......................................................................................139
10.1 Amendments and Waivers........................................................................139
10.2 Notices.......................................................................................141
10.3 No Waiver; Cumulative Remedies................................................................143
10.4 Survival of Representations and Warranties....................................................144
10.5 Payment of Expenses; Indemnification..........................................................144
10.6 Successors and Assigns; Participations and Assignments........................................145
10.7 Adjustments; Set-off..........................................................................148
10.8 Counterparts..................................................................................148
10.9 Severability..................................................................................148
10.10 Integration...................................................................................149
10.11 GOVERNING LAW.................................................................................149
10.12 Submission To Jurisdiction; Waivers...........................................................149
10.13 Certain Matters Affecting Lenders.............................................................149
10.14 Acknowledgments...............................................................................150
10.15 Confidentiality...............................................................................151
10.16 Release of Collateral and Guarantee Obligations...............................................151
10.17 Accounting Terms and Changes..................................................................152
10.18 Delivery of Lender Addenda....................................................................152
10.19 Construction..................................................................................152
10.20 WAIVERS OF JURY TRIAL.........................................................................152
10.21 Gaming Authorities............................................................................153
10.22 Release of Golf Course Collateral.............................................................153
10.23 Release of Aircraft Related Security..........................................................153
10.24 Third Party Beneficiaries.....................................................................154
ANNEXES:
A Pricing Grid
SCHEDULES:
1.1 Mortgaged Property
4.4 Consents, Authorizations, Filings and Notices
4.9(b) Trademarks, Service Marks and Trade Names
4.9(c) Patents
4.9(d) Copyrights
4.9(e) Trade Secrets
4.9(f) Intellectual Property Licenses
4.15 Subsidiaries
4.19(a)-1 UCC Filing Jurisdictions - Collateral
4.19(a)-2 UCC Financing Statements to Remain on File
4.19(b) Mortgage Filings Jurisdictions
4.19(c) UCC Filing Jurisdictions - Intellectual Property Collateral
4.24 Material Contracts
4.25(a) Real Estate
4.25(d) Assessments
6.5(d) Insurance Requirements
7.2(d) Existing Indebtedness
7.3(f) Existing Liens
EXHIBITS:
A Form of Guarantee
B Form of Compliance Certificate
C Form of Disbursement Agreement
D Form of Mortgage
E Form of Assignment and Acceptance
F Form of Indemnity Agreement
G-1 Form of Term Note
G-2 Form of Revolving Credit Note
G-3 Form of Swing Line Note
H Form of Insurance Consultant Certificate
I Form of Exemption Certificate
J Form of Lender Addendum
K Form of Intercreditor Agreement
L Form of Subordinated Intercompany Note
M Form of Notice of Borrowing
N Form of Subordination, Non-Disturbance and Attornment Agreement
O Form of Letter of Credit Request
P Form of Pledge and Security Agreement
Q Form of Macau Investment
This CREDIT AGREEMENT is dated as of December 14, 2004 and
entered into among WYNN LAS VEGAS, LLC, a Nevada limited liability company
(the "Borrower"), the several banks and other financial institutions or
entities from time to time party to this Agreement as lenders, DEUTSCHE BANK
SECURITIES INC., as lead arranger and joint book running manager, DEUTSCHE
BANK TRUST COMPANY AMERICAS, as administrative agent (in such capacity and
together with its successors and assigns, the "Administrative Agent"), issuing
lender and swing line lender, BANC OF AMERICA SECURITIES LLC, as lead arranger
and joint book running manager, BANK OF AMERICA, N.A., as syndication agent,
BEAR, STEARNS & CO. INC., as arranger and joint book running manager, BEAR
STEARNS CORPORATE LENDING INC., as joint documentation agent, J.P. MORGAN
SECURITIES INC., as arranger and joint book running manager, JPMORGAN CHASE
BANK, N.A., as joint documentation agent, SG AMERICAS SECURITIES, LLC, as
arranger and joint book running manager, and SOCIETE GENERALE, as joint
documentation agent.
RECITALS
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WHEREAS, the Borrower is developing and owns the Phase I
Project and may develop and own the Phase II Project (such defined term and
other defined terms used in these Recitals shall have the meanings given in
Section 1.1 of this Agreement);
WHEREAS, the Borrower desires that the Lenders extend the
senior secured credit facilities contemplated hereby to the Borrower to
provide a portion of the funds necessary to develop and construct the Project
and provide working capital for the operation of the Project;
WHEREAS, subject to the terms and conditions hereof, the
Lenders are willing to extend such senior secured credit facilities to the
Borrower;
WHEREAS, the Borrower desires to secure all of its
Obligations by granting to the Collateral Agent on behalf of the
Administrative Agent and the Secured Parties a Lien on substantially all of
its assets as more fully described in this Agreement and the other Loan
Documents; and
WHEREAS, each of the Loan Parties (other than the Borrower)
shall guaranty the Obligations of the Borrower and shall secure all of its
Obligations by granting to the Collateral Agent on behalf of the
Administrative Agent and the Secured Parties a Lien on substantially all of
its assets, in each case as more fully described in this Agreement and the
other Loan Documents.
NOW, THEREFORE, in consideration of the premises and the
agreements hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms
listed in this Section 1.1 shall have the respective meanings set forth in
this Section 1.1.
"Access Agreement": the Access Easement Agreement, dated as
of the date hereof, between Wynn Golf and the Borrower.
"Account": any "Commodity Account," "Deposit Account" or
"Securities Account" (as such terms are defined in the UCC).
"Additional Entertainment Facility": a showroom or
entertainment facility adjoining the Project on the Site (other than
any showroom or entertainment facility contemplated in the Plans and
Specifications on the Closing Date).
"Additional Material Contracts": any Material Contract
entered into after the Closing Date relating to the development,
construction, maintenance or operation of the Project.
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": as defined in the preamble hereto.
"Administrative Agent Fee Letter": the Administrative Agent
Fee Letter, dated as of the date hereof, among the Borrower, the
Administrative Agent and Deutsche Bank Securities Inc.
"Advance Confirmation Notice": as defined in the
Disbursement Agreement.
"Advances": as defined in the Disbursement Agreement.
"Affiliate": as applied to any Person, any other Person
which, directly or indirectly, is in control of, is controlled by, or
is under common control with, such Person. For purposes of this
definition, "control" (including, with correlative meanings, the
terms "controlling," "controlled by" and "under common control with")
as applied to any Person means the power, directly or indirectly,
either to (a) vote 10% or more of the securities having ordinary
voting power for the election of directors (or persons performing
similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by
contract or otherwise.
"Affiliate Agreements": collectively, the Golf Course Lease,
the Management Agreement, the Project Services Agreement, the Shuttle
Easement Agreement, the Access Agreement, the Aircraft Operating
Agreement, the Art Rental and Licensing Agreement and the Wynn IP
Agreement.
"Affiliated Fund": means, with respect to any Lender that is
a fund that invests (in whole or in part) in commercial loans, any
other fund that invests (in whole or in part) in commercial loans and
is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Affiliated Overhead Expenses": for any period, the
reasonable costs and expenses of, and actually incurred by, Wynn
Resorts and its Wholly Owned Subsidiaries (other than the Loan
Parties) for salary and benefits, office operations, development,
advertising, insurance and other corporate or other overhead, for
such period, calculated on a consolidated basis, after the
elimination of intercompany transactions, and in accordance with
GAAP; provided, that Affiliated Overhead Expenses (a) shall not
include any fee, profit or similar component payable to Wynn Resorts
or any other Affiliate of Wynn Resorts (other than with respect to
the salary of Mr. Wynn) or any Project Costs and (b) shall represent
only the payment or reimbursement of actual costs and expenses
incurred by Wynn Resorts and its Wholly Owned Subsidiaries.
"Agents": the collective reference to the Syndication Agent,
the Documentation Agents, the Administrative Agent and, for purposes
of Section 9 and 10.5 only, the Collateral Agent and the Disbursement
Agent.
"Aggregate Exposure": with respect to any Lender at any
time, an amount equal to the sum of (a) the amount of such Lender's
Term Loan Commitment then in effect or, if the Term Loan Commitments
have been terminated, the amount of such Lender's Term Loan
Extensions of Credit then outstanding and (b) the amount of such
Lender's Revolving Credit Commitment then in effect or, if the
Revolving Credit Commitments have been terminated, the amount of such
Lender's Revolving Extensions of Credit then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender
at any time, the ratio (expressed as a percentage) of such Lender's
Aggregate Exposure at such time to the Aggregate Exposure of all
Lenders at such time.
"Agreement": this Credit Agreement.
"Aircraft": that certain 1999 Boeing 737-79U Business Jet
aircraft bearing manufacturer's serial number 29441 and United States
Federal Aviation Administration Registration Number N88WZ, which
shall include, but not be limited to, (i) the airframe (the Aircraft
except for the Engines (hereinafter defined) from time to time
installed thereon) together with any and all Parts (hereinafter
defined) incorporated or installed or attached to such aircraft and
all Parts removed from such aircraft until such Parts are replaced
(such airframe, together with any replacement or substitute airframe
and all such Parts, the "Airframe"), (ii) each of the engines
installed on the Aircraft and any replacement engine that may be
substituted for such engine, together, in each case, with any and all
Parts incorporated or installed or attached thereto and any and all
Parts removed therefrom, until such Parts are replaced (each such
engine, and replacement or substitute engine, together with any and
all such Parts, the "Engine" and collectively the "Engines"), (iii)
all appliances, parts, instruments, appurtenances, accessories,
furnishings and other equipment of whatever nature (other than the
Engines), that may from time to time be incorporated or installed in
or attached to the Airframe or any Engine (collectively referred to
herein as "Parts") and (iv) the proceeds of any of the foregoing.
"Aircraft Operating Agreement": that certain Amended and
Restated Aircraft Operating Agreement, dated October 30, 2002,
between the Aircraft Trustee and World Travel.
"Aircraft Trustee": Wells Fargo Bank Northwest, National
Association, as trustee under a trust agreement in favor of World
Travel with respect to the Aircraft, and any successor or replacement
trustee.
"Allocable Overhead": for any period, an amount equal to (a)
the amount of Affiliated Overhead Expenses for such period divided by
(b) the number of gaming and/or hotel projects of Wynn Resorts and
its Subsidiaries which were operating during such period or for which
debt and/or equity financing has been obtained to finance the design,
development, construction and/or opening thereof; provided, that (i)
the Project shall be deemed a single gaming and/or hotel project and
(ii) amounts allocated to any such project shall be prorated based on
the period within such period that such project was in operation or
financing therefor was obtained.
"Applicable Facility Lenders": with respect to any Facility,
(a) after the termination of the Term Loan Commitments or the
Revolving Credit Commitments, as the case may be, Non-Defaulting
Lenders holding more than 33?% of the Total Term Loan Extensions of
Credit of Non-Defaulting Lenders or the Total Revolving Extensions of
Credit of Non-Defaulting Lenders, as the case may be, or (b) prior to
any termination of the Term Loan Commitments or the Revolving Credit
Commitments, as the case may be, Non-Defaulting Lenders holding more
than 33?% of the Total Term Loan Commitments (less the aggregate Term
Loan Commitments of Defaulting Lenders) or Total Revolving Credit
Commitments (less the aggregate Revolving Credit Commitments of
Defaulting Lenders), as the case may be.
"Applicable Margin": for each Type of Loan, the rate per
annum set forth under the relevant column heading below:
Base Rate Eurodollar
Loans Loans
------------- --------------
Revolving Credit Loans and
Swing Line Loans 1.250% 2.250%
Term Loans 1.125% 2.125%
provided, that (i) subject to clause (ii) below, if at any time the
senior secured long-term Indebtedness under the Facilities shall be
rated at least Ba3 by Moody's and BB- by S&P, the Applicable Margin
for Revolving Credit Loans and Swing Line Loans (x) for all
Eurodollar Loans shall be 2.00% and (y) for all Base Rate Loans shall
be 1.00% and (ii) on and after the first Adjustment Date occurring
after either the first Quarterly Date (in the event that the Phase II
Commitment Sunset Date occurs without the Phase II Approval Date
having occurred) or the Initial Phase II Calculation Date (in the
event that the Phase II Approval Date occurs on or prior to the Phase
II Commitment Sunset Date), the Applicable Margin with respect to
Revolving Credit Loans and Swing Line Loans will be determined
pursuant to the Pricing Grid.
"Arrangers": collectively, Deutsche Bank Securities Inc., in
its capacity as a lead arranger, Banc of America Securities LLC, in
its capacity as a lead arranger, Bear, Stearns & Co. Inc., in its
capacity as an arranger, SG Americas Securities, LLC, in its capacity
as an arranger, and J.P. Morgan Securities Inc., in its capacity as
an arranger.
"Art Rental and Licensing Agreement": that certain Third
Amended and Restated Art Rental and Licensing Agreement, dated as of
August 6, 2004, between Mr. Wynn and the Borrower.
"Aruze Corp.": Aruze Corp., a Japanese public corporation.
"Aruze USA": Aruze USA, Inc., a Nevada corporation.
"Asset Sale": any Disposition of Property or series of
related Dispositions of Property by a Loan Party other than (a) the
granting of any Lien permitted by Section 7.3, (b) any Disposition
permitted by Section 7.4, (c) any Disposition permitted by
subsections (a), (b), (c), (d), (f), (h), (i), (j), (k), (l), (m),
(n) or (o) of Section 7.5 or (d) Dispositions for aggregate
consideration of less than $250,000 with respect to any transaction
or series of related transactions and less than $5,000,000 in the
aggregate during the term of the Facility (such consideration to be
valued at the initial principal amount thereof in the case of
non-cash proceeds consisting of notes or other debt securities and
valued at the fair market value in the case of other non-cash
proceeds).
"Assignee": as defined in Section 10.6(c).
"Assignment and Acceptance": as defined in Section 10.6(c).
"Assignor": as defined in Section 10.6(c).
"Available Revolving Credit Commitment": as to any Revolving
Credit Lender at any time, an amount equal to the excess, if any, of
(a) such Revolving Credit Lender's Revolving Credit Commitment then
in effect over (b) such Revolving Credit Lender's Revolving
Extensions of Credit then outstanding; provided, that in calculating
any Lender's Revolving Extensions of Credit for the purpose of
determining such Lender's (other than the Swing Line Lender)
Available Revolving Credit Commitment pursuant to Section 2.9(a), the
aggregate principal amount of Swing Line Loans then outstanding shall
be deemed to be zero.
"Available Term Loan Commitment": as to any Term Loan Lender
at any time, an amount equal to the excess, if any, of (a) such Term
Loan Lender's Term Loan Commitment then in effect over (b) such Term
Loan Lender's Term Loan Extensions of Credit.
"Bank Debt Service": for any period, (a) all fees payable
during such period to the Administrative Agent, the Issuing Lender,
the Swing Line Lender and the Lenders, (b) interest on Term Loans,
Swing Line Loans, Revolving Credit Loans and, without duplication,
interest on any outstanding Reimbursement Obligations, in each case
payable during such period, (c) scheduled Term Loan principal
payments (as reduced to reflect actual payments and prepayments
through the date of such calculation) and payments with respect to
the principal amount of any outstanding Reimbursement Obligations, in
each case payable during such period and (d) net payments, if any,
payable during such period pursuant to Specified Hedge Agreements.
"Bank Proceeds Account": as defined in the Disbursement
Agreement.
"Base Rate": for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1%) equal to the greatest of (a)
the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
"Base Rate Loans": Loans for which the applicable rate of
interest is based upon the Base Rate.
"Beneficial Owner": as defined in Rule 13d--3 and Rule
13d--5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as that term is used
in Section 13(d)(3) of the Exchange Act), such "person" will be
deemed to have beneficial ownership of all securities that such
"person" has the right to acquire by conversion or exercise of other
securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The
term "Beneficially Owned" has a corresponding meaning.
"Benefited Lender": as defined in Section 10.7.
"Board": the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"Board of Directors": (a) with respect to a corporation, the
board of directors of the corporation; (b) with respect to a
partnership, the board of directors of the general partner of the
partnership; (c) with respect to a limited liability company, the
manager or sole member of such limited liability company; and (d)
with respect to any other Person, the board or committee of such
Person serving a similar function.
"Borrower": as defined in the preamble hereto.
"Borrower Indemnity Agreement": the Indemnity Agreement,
dated as of the date hereof, by the Borrower in favor of the
Administrative Agent.
"Borrower Mortgage": the Deed of Trust, Leasehold Deed of
Trust, Assignment of Rents and Leases, Security Agreement and Fixture
Filing, dated as of the date hereof, made by the Borrower to the
Title Insurance Company for the benefit of the Collateral Agent.
"Borrowing Date": any Business Day specified by the Borrower
as a date on which the Borrower requests the relevant Lender(s) to
make Loans hereunder.
"Business Day": (a) for all purposes other than as covered
by clauses (b) and (c) below, a day other than a Saturday, Sunday or
other day on which commercial banks in New York City, New York or Las
Vegas, Nevada are authorized or required by law to close, (b) with
respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, any day
which is a Business Day described in clause (a) above and which is
also a day for trading by and between banks in Dollar deposits in the
New York interbank eurodollar market and (c) with respect to all
notices and determinations in connection with Letters of Credit and
payments of principal and interest on Reimbursement Obligations, a
day other than a Saturday, Sunday or other day on which commercial
banks in New York City, New York are authorized or required by law to
close.
"Capital Corp.": Wynn Las Vegas Capital Corp., a Nevada
corporation.
"Capital Expenditures": for any period, with respect to any
Person, the aggregate of all expenditures by such Person and its
Subsidiaries for the acquisition or leasing (pursuant to a capital
lease) of fixed or capital assets (including, without limitation,
real property) or additions to equipment (including replacements,
capitalized repairs and improvements during such period) which should
be capitalized under GAAP on a consolidated balance sheet of such
Person and its Subsidiaries; provided, that the amount of Capital
Expenditures in respect of fixed or capital assets or additions to
equipment in any Fiscal Year shall not include (a) the Net Cash
Proceeds received by any such Person from Dispositions of Property
pursuant to Section 7.5(a) and applied to the acquisition of fixed or
capital assets and (b) the Insurance Proceeds and/or Eminent Domain
Proceeds received by any such Person for any casualties to, or Taking
of, fixed or capital assets and applied during such Fiscal Year to
the repair or replacement of fixed or capital assets in accordance
with Section 2.24. Notwithstanding the foregoing, (i) to the extent
funded with proceeds of Indebtedness described in Section 7.2(l) or
equity capital contributions from Wynn Resorts (or another Affiliate
to the extent acting as an intermediary for purposes of contributing
equity capital contributions from Wynn Resorts to a Loan Party for
application to Capital Expenditures), any expenditures in furtherance
of the construction of the Additional Entertainment Facility and the
Retail Facility that otherwise would have constituted Capital
Expenditures by virtue of the foregoing and (ii) any Project Costs
shall in each case be excluded from this definition for purposes of
Section 7.7 only.
"Capital Lease Obligations": as to any Person, the
obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are
required to be classified and accounted for as capital leases on a
balance sheet of such Person under GAAP, and, for the purposes of
this Agreement, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in accordance
with GAAP.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all classes of membership or member's
interests in a limited liability company, any and all classes of
partnership interests in a partnership, any and all equivalent
ownership interests in a Person and any and all warrants, rights or
options to purchase any of the foregoing.
"Carryover Amount": as defined in Section 7.7.
"Cash Equivalents": (a) United States dollars; (b)
securities issued or directly and fully guaranteed or insured by the
United States government or any agency or instrumentality of the
United States government (as long as the full faith and credit of the
United States is pledged in support of those securities) having
maturities of not more than six months from the date of acquisition;
(c) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition,
bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case, with any Lender or with any
domestic commercial bank having capital and surplus in excess of
$500,000,000 and a Thomson Bank Watch Rating of "B" or better; (d)
repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (b) and (c)
above entered into with any financial institution meeting the
qualifications specified in clause (c) above; (e) commercial paper
having one of the two highest ratings obtainable from Moody's or S&P
and in each case maturing within six months after the date of
acquisition; (f) money market funds or mutual funds at least 95% of
the assets of which constitute Cash Equivalents of the kinds
described in clauses (a) through (e) of this definition; and (g) to
the extent not permitted in clauses (a) through (f) of this
definition, Permitted Securities.
"Change of Control": the occurrence of any of the following:
(a) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or
a series of related transactions, of all or substantially all of the
properties or assets of the Loan Parties, taken as a whole, to any
"person" (as that term is used in Section 13(d)(3) of the Exchange
Act), other than to Mr. Wynn or a Related Party of Mr. Wynn, (b) the
adoption of a plan relating to the liquidation or dissolution of the
Borrower or any successor thereto, (c) the consummation of any
transaction (including, without limitation, any merger or
consolidation) the result of which is that (i) any "person" (as
defined in clause (a) above), other than Mr. Wynn and any of his
Related Parties becomes the Beneficial Owner, directly or indirectly,
of more than 50% of the outstanding Voting Stock of Wynn Resorts,
measured by voting power rather than number of equity interests, (ii)
any "person" (as defined in clause (a) above)(other than Kazuo Okada,
Aruze USA and Aruze Corp., so long as (A) the Stockholders Agreement,
as in effect on the Closing Date, remains in full force and effect,
(B) a majority of the Board of Directors of Wynn Resorts is
constituted of Persons named on any slate of directors chosen by Mr.
Wynn and Aruze USA pursuant to the Stockholders Agreement, as in
effect on the Closing Date and (C) Kazuo Okada and his Related
Parties either (1) "control" (as that term is used in Rule 405 under
the Securities Act) Aruze Corp. and Aruze USA or (2) otherwise remain
the direct or indirect Beneficial Owners of the Voting Stock of Wynn
Resorts held by Aruze Corp.) becomes the Beneficial Owner, directly
or indirectly, of a greater percentage of the outstanding Voting
Stock of Wynn Resorts, measured by voting power rather than number of
equity interests, than is at that time Beneficially Owned by Mr. Wynn
and his Related Parties as a group, (iii) prior to the earlier of (X)
the Phase II Opening Date or (Y) December 31, 2007, Mr. Wynn and his
Related Parties as a group own less than 80% of the outstanding
Voting Stock of Wynn Resorts owned by such group as of the Closing
Date, or (iv) prior to the earlier of (X) the Phase II Opening Date,
or (Y) December 31, 2007 Mr. Wynn and his Related Parties as a group
own less than 10% of the outstanding Voting Stock of Wynn Resorts,
measured by voting power rather than number of equity interests, (d)
the first day prior to the earlier of (X) the Phase II Opening Date
or (Y) December 31, 2007 on which Mr. Wynn does not act as either the
Chairman of the Board of Directors of Wynn Resorts or the Chief
Executive Officer of Wynn Resorts, other than (A) as a result of
death or disability or (B) if the Board of Directors of Wynn Resorts,
exercising their fiduciary duties in good faith, removes or fails to
re-appoint Mr. Wynn as Chairman of the Board of Directors of Wynn
Resorts or Chief Executive Officer of Wynn Resorts, (e) the first day
on which a majority of the members of the Board of Directors of Wynn
Resorts are not Continuing Directors, (f) the first day on which Wynn
Resorts ceases to own, directly or indirectly, 100% of the
outstanding Capital Stock of the Borrower or (g) Wynn Resorts
consolidates with, or merges with or into, any Person or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any Person, or any Person
consolidates with, or merges with or into, Wynn Resorts, in any such
event pursuant to a transaction in which any of the outstanding
voting stock of Wynn Resorts is converted into or exchanged for cash,
securities or other property, other than any such transaction where
the voting stock of Wynn Resorts outstanding immediately prior to
such transaction is converted into or exchanged for voting stock
(other than Disqualified Stock) of the surviving or transferee Person
constituting a majority of the outstanding shares of such voting
stock of such surviving or transferee Person (immediately after
giving effect to such issuance).
"Closing Date": the date on which this Agreement and the
other Loan Documents are executed and delivered and the conditions
precedent set forth in Section 3.1 of the Disbursement Agreement and
Section 5.1 of this Agreement have been satisfied or waived.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": all Property of the Loan Parties, Wynn Resorts
Holdings or any other Person, now owned or hereafter acquired, upon
which a Lien is purported to be created by any Security Document.
"Collateral Agency Agreement": the Collateral Agency
Agreement, dated as of the date hereof, among the Collateral Agent,
the Nevada Collateral Agent and other parties from time to time party
thereto.
"Collateral Agent": Deutsche Bank Trust Company Americas in
its capacity as Collateral Agent under and as defined in the
Intercreditor Agreement, any successor Collateral Agent and any
assignee of the foregoing appointed pursuant to the terms of the
Intercreditor Agreement.
"Commitment": as to any Lender, the sum of the Term Loan
Commitment and the Revolving Credit Commitment of such Lender.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Borrower or any other Loan
Party within the meaning of Section 4001 of ERISA or is part of a
group that includes such Person and that is treated as a single
employer under Section 414 of the Code.
"Company Disbursement Collateral Account Agreement": as
defined in the Disbursement Agreement.
"Company's Funds Account": as defined in the Disbursement
Agreement.
"Completion Date": as defined in the Disbursement Agreement.
"Completion Guarantor": Wynn Completion Guarantor, LLC, a
Nevada limited liability company.
"Completion Guaranty": that certain Completion Guaranty,
dated as of the date hereof, by the Completion Guarantor in favor of
the Administrative Agent and the 2014 Notes Indenture Trustee.
"Completion Guaranty Collateral Account Agreement": as
defined in the Disbursement Agreement.
"Completion Guaranty Deposit Account": as defined in the
Disbursement Agreement.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit B hereto.
"Confidential Information Memorandum": the Confidential
Information Memorandum, dated November 18, 2004 and furnished to the
initial Lenders.
"Consents": as defined in the Disbursement Agreement.
"Consolidated Current Assets": at any date, all amounts
(other than cash and Cash Equivalents) which would, in conformity
with GAAP, be set forth opposite the caption "total current assets"
(or any like caption) on a consolidated balance sheet of the Borrower
and its Subsidiaries at such date.
"Consolidated Current Liabilities": at any date, all amounts
that would, in conformity with GAAP, be set forth opposite the
caption "total current liabilities" (or any like caption) on a
consolidated balance sheet of the Borrower and its Subsidiaries at
such date, but excluding (a) the current portion of any Funded Debt
of the Borrower and its Subsidiaries and (b) without duplication of
clause (a) above, all Indebtedness consisting of Revolving Credit
Loans or Swing Line Loans to the extent otherwise included therein.
"Consolidated EBITDA": of any Person for any period,
Consolidated Net Income of such Person and its Subsidiaries for such
period plus, without duplication and to the extent included in the
calculation of such Consolidated Net Income for such period, the sum
of (a) income tax expense or the Tax Amount (whether or not paid
during such period), (b) Consolidated Interest Expense of such Person
and its Subsidiaries, amortization or write-off of debt discount and
debt issuance costs and commissions, discounts and other fees and
charges (including prepayment penalties and premiums) associated with
Indebtedness (including, in the case of the Borrower and its
subsidiaries, the Loans, Letters of Credit and Hedge Agreements), (c)
depreciation and amortization expense, (d) amortization of
intangibles (including, but not limited to, goodwill), (e) any
extraordinary expenses or losses (and, whether or not otherwise
includable as separate items in the statement of such Consolidated
Net Income for such period, losses on sales of assets outside of the
ordinary course of business and pre-opening expenses related to the
initial opening of the Phase I Project and the Phase II Project (such
pre-opening expenses to be no greater than that set forth in the
Project Budget then in effect) and (f) other non-cash items reducing
such Consolidated Net Income (excluding any such non-cash item to the
extent that it represents an accrual or reserve for potential cash
items in any future period or amortization of a prepaid cash item
that was paid in a prior period) and minus, to the extent included in
the calculation of such Consolidated Net Income for such period, the
sum of (i) interest income other than, in the case of any Loan Party,
interest income received in cash or cash equivalents during such
period from the Macau Loan (except to the extent deducted in
determining Consolidated Interest Expense), (ii) any extraordinary
income or gains (and, whether or not otherwise includable as a
separate item in the statement of such Consolidated Net Income for
such period, gains on the sales of assets outside of the ordinary
course of business) and (ii) other non-cash items increasing such
Consolidated Net Income for such period (excluding any such non-cash
item to the extent it represents the reversal of an accrual or
reserve for potential cash item in any prior period), all as
determined on a consolidated basis. Any cash equity contributions
made by Mr. Wynn, Wynn Resorts or any of their Affiliates (other than
the Borrower or any other Loan Party) to the Borrower during any
fiscal quarter and during a period of fifteen days following such
fiscal quarter and not otherwise deposited into the Company's Funds
Account or otherwise applied or allocated for application toward
Project Costs for either the Phase I Project or the Phase II Project,
in an aggregate amount not to exceed $20,000,000 per fiscal quarter,
may at the written election of the Borrower to the Administrative
Agent (such election to be made during the fiscal quarter in which
such cash equity contributions were made or during the fifteen day
period following such fiscal quarter) be included in Consolidated
EBITDA for such quarter for purposes of any calculations made
pursuant to Section 7.1 only; provided that the Borrower may not
include such cash equity contributions in Consolidated EBITDA (i) if
any Default or Event of Default has occurred and is continuing at the
time such cash contribution is made (other than in respect of Section
7.1 for the most recent fiscal quarter of the Borrower absent
application of this provision) or (ii) in any event, after the
Borrower has elected to include any such cash equity contributions in
Consolidated EBITDA in accordance with this sentence for three
consecutive fiscal quarters unless, following any such three
consecutive fiscal quarters, the Borrower has thereafter been in
compliance with Section 7.1 (without giving affect to any previous
cash contributions included in Consolidated EBITDA in accordance with
this sentence) on at least one Quarterly Date.
"Consolidated Interest Coverage Ratio": for any period, the
ratio of (a) Consolidated EBITDA of the Borrower and its Subsidiaries
for such period to (b) Consolidated Interest Expense of the Borrower
and its Subsidiaries for such period.
"Consolidated Interest Expense": of any Person for any
period, total interest expense (including that attributable to
Capital Lease Obligations in accordance with GAAP) of such Person and
its Subsidiaries for such period and any interest capitalized during
such period, with respect to all outstanding Indebtedness of such
Person and its Subsidiaries (including, without limitation, all
commissions, discounts and other fees and charges owed by such
Persons with respect to letters of credit and bankers' acceptance
financing and net costs of such Persons under Hedge Agreements in
respect of interest rates to the extent such net costs are allocable
to such period in accordance with GAAP).
"Consolidated Leverage Ratio": for any period, the ratio of
(a) Consolidated Total Debt on the last day of such period to (b)
Consolidated EBITDA of the Borrower for such period.
"Consolidated Member": a corporation, other than the common
parent, that is a member of an affiliated group (as defined in
Section 1504 of the Code) of which Wynn Resorts or any of the Loan
Parties is the common parent.
"Consolidated Net Income": of any Person for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries
for such period, determined on a consolidated basis in accordance
with GAAP and before any reduction in respect of preferred equity
dividends, but giving effect to, without duplication, any amounts
paid or distributed by such Person or its Subsidiaries as a Tax
Amount or Allocable Overhead if and to the same extent that such
amounts would have been included in the calculation of net income if
incurred by such Person or its Subsidiaries directly; provided, that
in calculating Consolidated Net Income of a Person (for purposes of
this definition only, the "Parent") and its consolidated Subsidiaries
for any period, there shall be excluded in each case to the extent
included in such Consolidated Net Income (a) the income (or deficit)
of any Person accrued prior to the date it becomes a Subsidiary of
the Parent or is merged into or consolidated with the Parent or any
of its Subsidiaries, (b) the income (or deficit) of any Person (other
than a Subsidiary of the Parent) in which the Parent or any of its
Subsidiaries has an ownership interest, except to the extent that any
such income is actually received by the Parent or such Subsidiary in
the form of dividends or similar distributions, (c) the undistributed
earnings of any Subsidiary of the Parent to the extent that the
declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of any
Contractual Obligation (other than under any Financing Agreement) or
Requirement of Law applicable to such Subsidiary, (d) to the extent
not reflected as a charge in the statement of such Consolidated Net
Income, any Management Fees paid during such period and (e) the
cumulative effect of a change in accounting principles.
"Consolidated Total Debt": at any date, an aggregate amount
equal to (a) the aggregate principal amount of all Indebtedness of
the Borrower and its Subsidiaries at such date less (b) for periods
on and after the first Quarterly Date (in the event that the Phase II
Commitment Sunset Date occurs without the Phase II Approval Date
having occurred) or the Initial Phase II Calculation Date (in the
event that the Phase II Approval Date occurs on or prior to the Phase
II Commitment Sunset Date), an amount equal to the product of (i) A
less B less C times (ii) D (in each case as defined below), in each
case determined on a consolidated basis in accordance with GAAP.
For purposes of the definition of Consolidated Total Debt at
any date:
A = the aggregate amount of cash and Cash
Equivalents of the Borrower and the other Loan
Parties on such date on deposit in an Account
with respect to which the Secured Parties have
a perfected first priority Lien securing the
Obligations pursuant to a Control Agreement,
B = the aggregate amount of Project Costs
reasonably anticipated to be incurred by the
Loan Parties on and after such date in order
to achieve Final Completion of the Phase I
Project (in the event that the Phase II
Commitment Sunset Date occurs without the
Phase II Approval Date having occurred) or the
Phase I Project and the Phase II Project (in
the event that the Phase II Approval Date
occurs on or prior to the Phase II Commitment
Sunset Date),
C = $16,000,000 (in the event that the Phase II
Commitment Sunset Date occurs without the
Phase II Approval Date having occurred) or
$20,000,000 (in the event that the Phase II
Approval Date occurs on or prior to the Phase
II Commitment Sunset Date) and
D = on Quarterly Dates, if any, prior to the Phase
I Completion Date, 1.00 and otherwise .75
"Consolidated Working Capital": at any date, the excess of
Consolidated Current Assets on such date over Consolidated Current
Liabilities on such date.
"Construction Agreement": as defined in the Disbursement
Agreement.
"Construction Consultant": Inspection & Valuation
International, Inc. or such other construction consultant of
recognized national standing appointed by the Administrative Agent
with, unless at the time of such appointment there exists an Event of
Default, the consent of the Borrower (such consent not to be
unreasonably withheld or delayed).
"Continuing Directors": as of any date of determination,
with respect to any Person, any member of the Board of Directors of
such Person who (a) was a member of such board of directors on the
Closing Date or (b) was nominated for election or elected to such
Board of Directors with the approval of a majority of the Continuing
Directors who were members of such board at the time of such
nomination or election.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or
any of its Property is bound.
"Control Agreements": collectively, (a) the Completion
Guaranty Collateral Account Agreement, (b) the Company Disbursement
Collateral Account Agreement, (c) the Local Company Collateral
Account Agreement(s) and (d) each control agreement executed and
delivered by any Loan Party from time to time pursuant to the
Security Agreement, substantially in the form of Exhibit C, Exhibit D
or Exhibit E, as the case may be, thereto.
"Dealership Lease Agreement": that certain Lease Agreement,
to be entered into between the Borrower, as lessor, and an Affiliate
of the Borrower, as lessee, with respect to the lease of space at the
Phase I Project for the development and operation of a Ferrari and
Maserati automobile dealership.
"Default": the occurrence of any of the events specified in
Section 8, whether or not any requirement for the giving of notice,
the lapse of time, or both, has been satisfied.
"Defaulting Lender": at any time, (a) any Lender with
respect to which a Lender Default is in effect, (b) any Lender that
is the subject (as a debtor) of any action or proceeding (i) under
any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (ii) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any
substantial part of its assets, (c) any Lender that shall make a
general assignment for the benefit of its creditors or (d) any Lender
that shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due.
"Derivatives Counterparty": as defined in Section 7.6.
"Disbursement Account": as defined in the Disbursement
Agreement.
"Disbursement Agent": Deutsche Bank Trust Company Americas,
in its capacity as Disbursement Agent under the Disbursement
Agreement, and any successor Disbursement Agent appointed pursuant to
the terms of the Disbursement Agreement.
"Disbursement Agreement": the Master Disbursement Agreement
substantially in the form of Exhibit C hereto, dated as of the date
hereof, among the Borrower, the Administrative Agent, the 2014 Notes
Indenture Trustee and the Disbursement Agent.
"Disbursement Agreement Event of Default": an "Event of
Default" as defined in the Disbursement Agreement.
"Disposition": with respect to any Property, any sale,
lease, assignment, conveyance, transfer or other disposition thereof
and, in the case of Dispositions of the Golf Course Land and the Home
Site Land permitted under Sections 7.5(k) and 7.5(l), respectively,
the transfer of the Golf Course Land and the Home Site Land to Wynn
Resorts (or any other parent entity of the Loan Parties) pursuant to
a dividend or other Restricted Payment; and the terms "Dispose" and
"Disposed of" shall have correlative meanings. Notwithstanding the
foregoing, the transfer by a Loan Party of water rights from one
permit to another permit held by such Loan Party or held by another
Loan Party shall in no event be considered a "Disposition" for the
purposes of the Loan Documents.
"Disqualified Stock": any Capital Stock of any Loan Party
that any Loan Party is or, upon the passage of time or the occurrence
of any event, may become obligated to redeem, purchase, retire,
defease or otherwise make any payment in respect of (whether by its
terms or by the terms of any security into which it is convertible,
or for which it is exchangeable, in each case at the option of the
holder of the Capital Stock), whether pursuant to a sinking fund
obligation or otherwise, on or prior to the date that is 91 days
after the Scheduled Term Loan Termination Date. Notwithstanding the
preceding sentence, any Capital Stock will not constitute
Disqualified Stock solely because it is required to be redeemed under
applicable Nevada Gaming Laws.
"Documentation Agents": collectively, Bear Stearns Corporate
Lending Inc., in its capacity as a joint documentation agent,
JPMorgan Chase Bank, N.A., in its capacity as a joint documentation
agent, and Societe Generale, in its capacity as a joint documentation
agent.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Domestic Subsidiary": any Subsidiary of the Borrower
organized under the laws of any jurisdiction within the United States
of America.
"ECF Percentage": with respect to any Fiscal Year, a
percentage determined by the Consolidated Leverage Ratio for the four
consecutive fiscal quarter period ending on the last day of such
Fiscal Year as set forth below:
|---------------------------------|---------------------|
| Consolidated Leverage Ratio | ECF Percentage |
|---------------------------------|---------------------|
| x > 4.50:1 | 75% |
|---------------------------------|---------------------|
| 3.50:1 < x < 4.50:1 | 50% |
|---------------------------------|---------------------|
| x < 3.50:1 | 0% |
|---------------------------------|---------------------|
"Eligible Assignee": (a) (i) a commercial bank organized
under the laws of the United States or any state thereof; (ii) a
savings and loan association or savings bank organized under the laws
of the United States or any state thereof; (iii) a commercial bank
organized under the laws of any other country or a political
subdivision thereof; provided, that (x) such bank is acting through a
branch or agency located in the United States or (y) such bank is
organized under the laws of a country that is a member of the
Organization for Economic Cooperation and Development or a political
subdivision of such country; and (iv) any other entity which is an
"accredited investor" (as defined in Regulation D under the
Securities Act) which extends credit or buys loans as one of its
businesses including insurance companies, mutual funds and lease
financing companies; and (b) for purposes of Sections 10.13(a) and
2.25, any Lender or Affiliate or Affiliated Fund of any Lender
(provided, that if any funding obligations are assigned to an
Affiliate of a Lender or Affiliated Fund, such Affiliate or
Affiliated Fund, as applicable, shall have demonstrable resources to
comply with such obligations); provided, that neither an Affiliate of
the Borrower nor any Person which has been denied an approval or a
license, or otherwise found unsuitable, under the Nevada Gaming Laws
applicable to the Lenders shall be an Eligible Assignee; provided,
further that so long as no Event of Default shall have occurred and
be continuing, no (i) Person that owns or operates a casino located
in the State of Nevada (or is an Affiliate of such a Person)
(provided, that a passive investment constituting less than 20% of
the common stock of any such casino shall not constitute ownership
thereof for the purposes of this definition) or (ii) Person that owns
or operates a convention, trade show or exhibition facility in Las
Vegas, Nevada or Clark County, Nevada (or an Affiliate of such a
Person) (provided, that a passive investment constituting less than
20% of the common stock of any such convention or trade show facility
shall not constitute ownership for the purpose of this definition),
shall be an Eligible Assignee.
"Eminent Domain Proceeds": all cash and cash equivalents
received in respect of any Event of Eminent Domain relating to the
Project net of (a) all direct costs of recovery of such Eminent
Domain Proceeds (including legal, accounting, appraisal and insurance
adjuster fees and expenses), (b) amounts required to be applied to
the repayment of Indebtedness secured by a Lien (including any
penalty, premium or make-whole amounts related thereto) expressly
permitted hereunder on any asset which is the subject of the Event of
Eminent Domain to which such Eminent Domain Proceeds relate (other
than any Lien pursuant to a Security Document or any other First Lien
Security Document or any Second Lien Security Document) and (c) all
taxes paid or reasonably estimated to be payable as a result thereof
(after taking into account any tax credits or deductions and any tax
sharing arrangements, in each case reducing the amount of taxes so
paid or estimated to be payable).
"Environmental Claim": any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order
or other order or directive (conditional or otherwise), by any
governmental authority or any other Person, arising (a) pursuant to
or in connection with any actual or alleged violation of any
Environmental Law, (b) in connection with any Hazardous Substances or
any actual or alleged Hazardous Materials Activity, or (c) in
connection with any actual or alleged damage, injury, threat or harm
to health, natural resources or the environment.
"Environmental Laws": any and all laws, rules, orders,
regulations, statutes, ordinances, guidelines, codes, decrees, or
other legally enforceable requirements (including, without
limitation, common law) of any international authority, foreign
government, the United States, or any state, local, municipal or
other Governmental Authority, regulating, relating to or imposing
liability or standards of conduct concerning protection of the
environment or of human health, or employee health, as has been, is
now, or may at any time hereafter be, in effect, including, without
limitation,
(a) the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980,
as amended (42 U.S.C. Section 9601 et seq.)
("CERCLA");
(b) the Federal Water Pollution Control
Act (33 U.S.C. Section 1251 et seq.) ("Clean Water
Act" or "CWA");
(c) the Resource Conservation and Recovery
Act (42 U.S.C. Section 6901 et seq.) ("RCRA");
(d) the Atomic Energy Act of 1954 (42
U.S.C. Section 2011 et seq.) ("AEA");
(e) the Clean Air Act (42 U.S.C. Section
7401 et seq.);
(f) the Emergency Planning and Community
Right-to-Know Act (42 U.S.C. Section 11001 et
seq.);
(g) the Federal Insecticide, Fungicide,
and Rodenticide Act (7 U.S.C. Section 136 et seq.)
("FIFRA");
(h) the Oil Pollution Act of 1990 (P.L.
101-380, 32 U.S.C. 2702 et seq.);
(i) the Safe Drinking Water Act (42 U.S.C.
Sections 300f et seq.) ("SDWA");
(j) the Surface Mining Control and
Reclamation Act of 1977 (30 U.S.C. Sections 1201 et
seq.);
(k) the Toxic Substances Control Act (15
U.S.C. Section 2601 et seq.) ("TSCA");
(l) the Hazardous Materials Transportation
Act (49 U.S.C. Section 1801 et seq.);
(m) the Uranium Mill Tailings Radiation
Control Act of 1978 (42 U.S.C. Section 7901 et
seq.) ("UMTRCA");
(n) the Occupational Safety and Health Act
(29 U.S.C. Section 651 et seq.) ("OSHA") as it
relates solely to exposure to Hazardous Substances;
(o) the Nevada Hazardous Materials law
(NRS Chapter 459);
(p) the Nevada Collection and Disposal of
Solid Waste/Sewage law (NRS Section 444.440 et
seq.);
(q) the Nevada Water Controls/Pollution
law (NRS Chapter 445A);
(r) the Nevada Air Pollution law (NRS
Chapter 445B);
(s) the Nevada Cleanup of Discharged
Petroleum law (NRS 590.700 to 590.920, inclusive);
(t) the Nevada Control of Asbestos law
(NRS 618.750 to 618.850);
(u) the Nevada Appropriation of Public
Waters law (NRS 533.324 to 533.435, inclusive);
(v) the Nevada Artificial Water Body
Development Permit law (NRS 502.390);
(w) the Nevada Environmental Requirements
Law (NRS 445C.010 to NRS 445C.120, inclusive);
(x) the Nevada Occupational Safety and
Health Act (NRS 618.005 et seq, inclusive)(as it
relates solely to exposure to Hazardous
Substances);
(y) the Laws Regarding the Authority of
Nevada State Fire Marshall Division (NRS 477.010 to
477.250, inclusive);
(z) the Uniform Fire Code, as now or
hereafter adopted in the State of Nevada;
(aa) the Nevada Protection of Endangered
Species, Endangered Wildlife Permit (NRS 503.585)
and Endangered Flora Permit law (NRS 527.270); and
(bb) and all other Federal, state and
local Legal Requirements which govern Hazardous
Substances, and the regulations adopted and
publications promulgated pursuant to all such
foregoing laws.
"Environmental Matter": any:
(a) release, emission, entry or
introduction into the air including, without
limitation, the air within buildings and other
natural or man-made structures above ground;
(b) discharge, release or entry into water
including, without limitation, into any river,
watercourse, lake, or pond (whether natural or
artificial or above ground or which joins or flows
into any such water outlet above ground) or
reservoir, or the surface of the riverbed or of
other land supporting such waters, ground waters,
sewer or the sea;
(c) deposit, disposal, keeping, treatment,
importation, exportation, production,
transportation, handling, processing, carrying,
manufacture, collection, sorting or presence of any
Hazardous Substance;
(d) nuisance, noise, defective premises,
health and safety at work, industrial illness,
industrial injury due to environmental factors,
environmental health problems (including, without
limitation, asbestosis or any other illness or
injury caused by exposure to asbestos) or
genetically modified organisms;
(e) conservation, preservation or
protection of the natural or man made environment
or any living organisms supported by the natural or
man made environment; or
(f) other matter howsoever directly
affecting the environment or any aspect of it.
"Environmental Permits": any and all permits, licenses,
approvals, registrations, notifications, exemptions and any other
authorization required under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied
to a Eurodollar Loan, the then stated maximum rate of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves under any regulations of the
Board or other Governmental Authority having jurisdiction with
respect thereto or otherwise required by applicable law) applicable
to any member bank of the Federal Reserve System in respect of
eurocurrency funding or liabilities as defined in Regulation D (or
any successor category of liabilities under Regulation D).
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
(a) the rate per annum determined by the Administrative Agent at
approximately 11:00 A.M. (London time) on the date that is two
Business Days prior to the commencement of such Interest Period by
reference to the rate for eurodollar deposits which appears on the
page of the Telerate screen that displays an average British Bankers
Association Interest Settlement Rate (such page currently being page
number 3740 or page 3750 of the Telerate screen) for a period equal
to such Interest Period (provided that, to the extent that an
interest rate is not ascertainable pursuant to the foregoing
provisions of this clause (a), the rate determined pursuant to this
clause (a) shall be the offered quotation to first-class banks in the
New York interbank Eurodollar market by the Administrative Agent for
Dollar deposits of amounts in immediately available funds comparable
to the outstanding principal amount of such Eurodollar Loan of the
Administrative Agent (in its capacity as a Lender) with maturities
comparable to the Interest Period applicable to such Eurodollar Loan
as of 10:00 A.M. (New York time) on the date that is two Business
Days prior to the commencement of such Interest Period), divided by
(b) a percentage equal to 100% minus the Eurocurrency Reserve
Requirements.
"Eurodollar Tranche": the collective reference to Eurodollar
Loans the then current Interest Periods with respect to all of which
begin on the same date and end on the same later date (whether or not
such Loans shall originally have been made on the same day).
"Event of Default": the occurrence of any of the events
specified in Section 8, provided that all requirements for the giving
of notice and the lapse of time have been satisfied.
"Event of Eminent Domain": with respect to any Property, (a)
any compulsory transfer or taking by condemnation, seizure, eminent
domain or exercise of a similar power, or transfer under threat of
such compulsory transfer or taking or confiscation of such Property
or the requisition of the use of such Property, by any agency,
department, authority, commission, board, instrumentality or
political subdivision of any state, the United States or another
Governmental Authority having jurisdiction or (b) any settlement in
lieu of clause (a) above.
"Excess Cash Flow": for any Fiscal Year, the excess, if any,
of (a) the sum, without duplication, of (i) Consolidated Net Income
of the Loan Parties for such Fiscal Year, (ii) an amount equal to the
amount of all non-cash charges (including depreciation and
amortization charges) deducted in arriving at such Consolidated Net
Income, (iii) decreases in Consolidated Working Capital of the Loan
Parties for such Fiscal Year, (iv) an amount equal to the aggregate
net non-cash loss on the Disposition of Property by the Loan Parties
during such Fiscal Year (other than sales of inventory in the
ordinary course of business), to the extent deducted in arriving at
such Consolidated Net Income and (v) the net increase during such
Fiscal Year (if any) in deferred tax accounts of the Loan Parties
over (b) the sum, without duplication, of (i) an amount equal to the
amount of all non-cash credits included in arriving at such
Consolidated Net Income, (ii) the aggregate amount actually paid by
the Loan Parties in cash during such Fiscal Year on account of
Capital Expenditures excluding the principal amount of Indebtedness
incurred in connection with such expenditures and any such
expenditures financed with the proceeds of any Reinvestment Deferred
Amount or capital equity contributions received directly or
indirectly from Wynn Resorts, (iii) with respect to the first Fiscal
Year for which Excess Cash Flow is determined in accordance with
Section 2.12(d), the aggregate amount of Project Costs anticipated to
be paid by the Loan Parties in the following Fiscal Year excluding
the principal amount of Indebtedness incurred or anticipated to be
incurred in connection with such expenditures and any such
expenditures financed or anticipated to be financed with capital
equity contributions received or anticipated to be received directly
or indirectly from Wynn Resorts; provided that any Project Costs
subtracted in the calculation of Excess Cash Flow pursuant to this
clause (iii) shall not be deemed "Capital Expenditures" for purposes
of the definition of Excess Cash Flow in the Fiscal Year actually
paid, (iv) the aggregate amount of all prepayments of Revolving
Credit Loans and Swing Line Loans during such Fiscal Year to the
extent accompanying permanent optional reductions of the Revolving
Credit Commitments and all optional prepayments of the Term Loans and
other Funded Debt (in the event consisting of revolving credit
facilities, to the extent accompanied by permanent optional
reductions of the related revolving commitments in the amount of any
such prepayments) during such Fiscal Year, (v) the aggregate amount
of all regularly scheduled principal payments of Funded Debt
(including, without limitation, the Term Loans) of the Loan Parties
made during such Fiscal Year (other than in respect of any revolving
credit facility to the extent there is not an equivalent permanent
reduction in commitments thereunder such that after giving effect to
such commitment reduction the applicable Loan Party, as the case may
be, would not be able to reborrow all or any of the amount so
prepaid), (vi) increases in Consolidated Working Capital of the Loan
Parties for such Fiscal Year, (vii) an amount equal to the aggregate
net non-cash gain on the Disposition of Property by the Loan Parties
during such Fiscal Year (other than sales of inventory in the
ordinary course of business), to the extent included in arriving at
such Consolidated Net Income, (viii) the net decrease during such
Fiscal Year (if any) in deferred tax accounts of the Loan Parties and
(ix) the aggregate amount of (A) any mandatory prepayments of Funded
Debt during such Fiscal Year (including the Term Loans or the
Revolving Credit Loans pursuant to Section 2.12(b) but, in any case,
other than in respect of any revolving credit facility to the extent
there is not an equivalent permanent reduction in commitments
thereunder such that after giving effect to such commitment reduction
the applicable Loan Party, as the case may be, would not be able to
reborrow all or any of the amount so prepaid) with Net Cash Proceeds
of Asset Sales and (B) any Reinvestment Deferred Amounts paid on the
account of Capital Expenditures during such Fiscal Year, in each case
to the extent such Net Cash Proceeds or Reinvestment Deferred Amounts
are included in arriving at such Consolidated Net Income.
"Excess Cash Flow Application Date": as defined in Section
2.12(d).
"Excluded Assets": as defined in the Security Agreement.
"Excluded Taxes": taxes imposed on, or measured by, the net
profits, net income or gross receipts (including franchise taxes
imposed in lieu of any such taxes) of any Arranger, any Agent, any
Manager or any Lender as a result of a present or former connection
between such Arranger, such Agent, such Manager or such Lender and
the jurisdiction of the Governmental Authority imposing such tax or
any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from such Arranger's,
such Agent's, such Manager's or such Lender's having executed,
delivered or performed its obligations or received a payment under,
or enforced, this Agreement or any other Loan Document).
"Exhausted": as defined in the Disbursement Agreement.
"Existing Stockholders": collectively, Mr. Wynn, Aruze USA,
Inc., a Nevada corporation, Baron Asset Fund, a Massachusetts
business trust, and the Kenneth R. Wynn Family Trust and, in each
case, any Affiliates thereof.
"Facility": collectively, (a) each of the Term Loan Facility
and (b) the Revolving Credit Facility.
"Facility Fee Letter": the Credit Facilities Fee Letter,
dated November 15, 2004, among the Borrower, Wynn Resorts, the
Agents, the Arrangers and the Managers.
"Facility Proportionate Share": as of any date the
proportion that (a) the Total Extensions of Credit on such date bears
to (b) the aggregate principal amount of all First Lien Secured
Obligations on such date; provided that, except in the case where the
Facility Proportionate Share of any Insurance Proceeds and/or Eminent
Domain Proceeds exceeds $100,000,000, in the event the Facility
Proportionate Share of any amount is in excess of the Total Term Loan
Extensions of Credit at such time, the Facility Proportionate Share
of such amount shall equal the Total Term Loan Extensions of Credit
at such time.
"Federal Funds Effective Rate": for any day, the weighted
average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds
brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it.
"Final Completion": as defined in the Disbursement
Agreement.
"Final Completion Date": as defined in the Disbursement
Agreement.
"Financing Agreements": collectively, this Agreement and the
other Loan Documents, any other agreements relating to the First Lien
Secured Obligations and any agreements relating to the Second Lien
Secured Obligations and including, in each case, any agreements with
respect to Permitted Refinancing Indebtedness.
"First Lien Secured Obligations": as defined in the
Intercreditor Agreement.
"First Lien Security Document": as defined in the
Intercreditor Agreement.
"Fiscal Year": the fiscal year of the Borrower and the other
Loan Parties ending on December 31 of each calendar year.
"Former Lender": as defined in Section 10.13(a).
"Funded Debt": as to any Person, all Indebtedness of such
Person of the types described in clauses (a) through (e) of the
definition of "Indebtedness" in this Section.
"Funding Account": any Account with respect to which the
Secured Parties have a perfected first priority Lien (subject only to
Permitted Liens) securing the Obligations pursuant to a Control
Agreement of the type described in clause (d) of the definition
thereof.
"Funding Office": the office specified from time to time by
the Administrative Agent as its funding office by notice to the
Lenders.
"GAAP": subject to the limitations on the application
thereof set forth in Section 10.17, generally accepted accounting
principles in the United States of America as in effect from time to
time as set forth in the opinions and pronouncements of the
Accounting Principals Board and the American Institute of Certified
Public Accountants and the statements and pronouncements of the
Financial Accounting Standards Board, or in such other statements by
such other entity as may be in general use by significant segments of
the accounting profession.
"Gaming Facility": any building or other structure used or
expected to be used to enclose space in which a gaming operation is
conducted and (a) is wholly owned by a Loan Party or (b) any portion
or aspect of which is managed or used, or expected to be managed or
used, by a Loan Party.
"Gaming Reserves": any mandatory gaming security reserves or
other reserves required under applicable Nevada Gaming Laws or by
directive of the Nevada Gaming Authorities.
"Golf Course": Wynn Las Vegas' Tom Fazio/Stephen A. Wynn
designed 18-hole golf course to be situated on the Golf Course Land,
as more particularly described in Exhibit Q-3 to the Disbursement
Agreement.
"Golf Course Collateral": collectively, (a) the Golf Course
Land, (b) any other Property owned by Wynn Golf included as
Collateral and (c) all Capital Stock of Wynn Golf pledged as
Collateral.
"Golf Course Land": the land on which the Golf Course is to
be located, as described in Exhibit Q-3 to the Disbursement
Agreement. The Golf Course Land includes (a) the Wynn Home Site Land
until such time (if ever) as the Wynn Home Site Land has been
Disposed of in accordance with Section 7.5(j) and (b) the Home Site
Land until such time (if ever) as the Home Site Land has been
Disposed of in accordance with Section 7.5(l).
"Golf Course Lease": that certain Golf Course Lease, dated
as of the date hereof, by and between Wynn Golf, on the one hand, as
lessor, and the Borrower, on the other hand, as lessee, with respect
to the lease of land on which the Golf Course is to be located.
"Governing Documents": collectively, as to any Person, the
articles or certificate of incorporation and bylaws, any shareholders
agreement, articles of organization or certificate of formation,
limited liability company agreement, operating agreement, partnership
agreement or other formation or constituent documents of such Person.
"Governmental Authority": any national, state or local
government (whether domestic or foreign), any political subdivision
thereof or any other governmental, quasi-governmental, judicial,
public or statutory instrumentality, authority, body, agency, bureau
or entity, (including the Nevada Gaming Authorities, any zoning
authority, the FDIC, the Comptroller of the Currency or the Federal
Reserve Board, any central bank or any comparable authority), any
entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government or any
arbitrator with authority to bind a party at law.
"Guarantee": the Guarantee substantially in the form of
Exhibit A hereto, dated as of the date hereof, executed by each Loan
Party (other than the Borrower) in favor of the Administrative Agent.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), without duplication any obligation of (a) the guaranteeing
person or (b) another Person (including, without limitation, any bank
under any letter of credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counterindemnity or
similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness or other obligations (the "primary
obligations") of any other third Person (the "primary obligor") in
any manner, whether directly or indirectly, including, without
limitation, any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any
Property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth
or solvency of the primary obligor, (iii) to purchase Property,
securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation, or (iv) otherwise
to assure or hold harmless the owner of any such primary obligation
against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall
be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which
such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of
the instrument embodying such Guarantee Obligation, unless such
primary obligation and the maximum amount for which such guaranteeing
person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing
person's maximum reasonably anticipated liability in respect thereof
as determined by the Borrower in good faith.
"Guarantors": the collective reference to each of the Loan
Parties, other than the Borrower.
"Hazardous Materials Activity": any past, current, proposed
or threatened activity, event or occurrence involving any Hazardous
Substances, including the use, manufacture, possession, storage,
holding, presence, existence, location, Release, threatened Release,
discharge, placement, generation, transportation, processing,
construction, treatment, abatement, removal, remediation, disposal,
disposition or handling of any Hazardous Substances, and any
corrective action or response action with respect to any of the
foregoing.
"Hazardous Substances": (statutory acronyms and
abbreviations having the meaning given them in the definition of
"Environmental Laws") substances defined as "hazardous substances,"
"pollutants" or "contaminants" in Section 101 of the CERCLA; those
substances defined as "hazardous waste" by the RCRA; those substances
designated as a "hazardous substance" pursuant to Section 311 of the
CWA; those substances regulated as a hazardous chemical substance or
mixture or as an imminently hazardous chemical substance or mixture
pursuant to Sections 6 or 7 of the TSCA; those substances defined as
"contaminants" by Section 1401 of the SDWA, if present in excess of
permissible levels; those substances regulated by the Oil Pollution
Act; those substances defined as a pesticide pursuant to Section 2(u)
of the FIFRA; those substances defined as a source, special nuclear
or by-product material by Section 11 of the AEA; those substances
defined as "residual radioactive material" by Section 101 of the
UMTRCA; those substances defined as "toxic materials" or "harmful
physical agents" pursuant to Section 6 of the OSHA); those substances
defined as hazardous wastes in 40 C.F.R. Part 261.3; those substances
defined as hazardous waste constituents in 40 C.F.R. Part 260.10,
specifically including Appendix VII and VIII of Subpart D of 40
C.F.R. Part 261; those substances designated as hazardous substances
in 40 C.F.R. Parts 116.4 and 302.4; those substances defined as
hazardous substances or hazardous materials in 49 C.F.R. Part 171.8;
those substances regulated as hazardous materials, hazardous
substances, or toxic substances in any other Environmental Laws, and
in the regulations adopted and publications promulgated pursuant to
said laws, whether or not such regulations or publications are
specifically referenced herein.
"Hedge Agreements": all interest rate swaps, caps or collar
agreements or similar arrangements entered into by a Loan Party
providing for protection against fluctuations in interest rates or
currency exchange rates or the exchange of nominal interest
obligations, either generally or under specific contingencies.
"Home Site Land": a tract or tracts of land not greater than
20 acres located on the Golf Course Land where residential and other
non-gaming related developments may, after Disposition of the Home
Site Land in accordance with Section 7.5(l), be built.
"In Balance": as defined in the Disbursement Agreement.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person for the deferred purchase price of
Property or services (other than trade payables incurred in the
ordinary course of such Person's business), (c) all obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to
Property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such Property), (e) all
Capital Lease Obligations or Synthetic Lease Obligations of such
Person, (f) all obligations of such Person, contingent or otherwise,
as an account party under acceptance, letter of credit, performance
bonds or similar facilities, (g) all obligations of such Person,
contingent or otherwise, to purchase, redeem, retire or otherwise
acquire for value any Capital Stock of such Person where such
obligation is required within 180 days of the Scheduled Term Loan
Termination Date, valued in the case of preferred Capital Stock at
liquidation value, (h) all Guarantee Obligations of such Person in
respect of obligations of the kind referred to in clauses (a) through
(g) above; (i) all obligations of the kind referred to in clauses (a)
through (h) above secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be
secured by) any Lien on Property (including, without limitation,
accounts and contract rights) owned by such Person, whether or not
such Person has assumed or become liable for the payment of such
obligation and (j) for the purposes of Section 8(e) only, all
obligations of such Person in respect of Hedge Agreements.
"Indemnified Liabilities": as defined in Section 10.5.
"Indemnitee": as defined in Section 10.5.
"Indemnity Agreements": collectively, each of the Indemnity
Agreements executed by a Loan Party with respect to its Mortgaged
Properties in favor of the Administrative Agent substantially in the
form of Exhibit F hereto, including, without limitation, the Borrower
Indemnity Agreement, the Wynn Golf Indemnity Agreement and the Wynn
Sunrise Indemnity Agreement.
"Initial Lending Institution Provisions": Section 2.24 and
the definition of "Subordinated Debt".
"Initial Lending Institutions": collectively, Deutsche Bank
Trust Company Americas, Bank of America, N.A., Bear Stearns Corporate
Lending, Inc., Societe Generale and JPMorgan Chase Bank, N.A.
"Initial Phase II Calculation Date": the last day of the
first full fiscal quarter of the Borrower beginning after the Phase
II Opening Date.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Insurance Advisor": Marsh USA, Inc., or its successor,
appointed by the Administrative Agent with, unless at the time of
such appointment there exists an Event of Default, the consent of the
Borrower (such consent not to be unreasonably withheld or delayed);
provided, that the parties acknowledge and agree that, upon the
effectiveness of Charlie Moore and Mandy Woods-McNeil's departure
from Marsh USA Inc., Moore-McNeil, LLC shall automatically be deemed
to be the successor Insurance Advisor to Marsh USA, Inc.
"Insurance Proceeds": all cash and cash equivalents paid
under any casualty insurance policy maintained by a Loan Party other
than, at such times as any Loan Party has incurred Indebtedness
pursuant to Section 7.2(c), any such amounts received in respect of
the Aircraft, net of (a) all direct costs of recovery of such
Insurance Proceeds (including legal, accounting, appraisal and
insurance adjuster fees and expenses), (b) all amounts required to be
applied to the repayment of Indebtedness secured by a Lien (including
any penalty, premium or make-whole amounts related thereto) expressly
permitted hereunder on any asset which is the subject of the event to
which such Insurance Proceeds relate (other than any Lien pursuant to
a Security Document or any other First Lien Security Document or any
Second Lien Security Document) and (c) all taxes paid or reasonably
estimated to be payable as a result thereof (after taking into
account any tax credits or deductions and any tax sharing
arrangements, in each case reducing the amount of taxes so paid or
estimated to be payable).
"Insurance Requirements": all material terms of any
insurance policy required pursuant to this Agreement or any Security
Document and all material regulations and then current standards
applicable to or affecting any Mortgaged Property or any part thereof
or any use or condition thereof, which may, at any time, be
recommended by the Board of Fire Underwriters, if any, having
jurisdiction over any Mortgaged Property, or any other body
exercising similar functions.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property,
whether arising under United States, state, multinational or foreign
laws or otherwise, including, without limitation, copyrights,
patents, trademarks, service-marks, technology, know-how and
processes, recipes, formulas, trade secrets, or licenses (under which
the applicable Person is licensor or licensee) relating to any of the
foregoing and all rights to sue at law or in equity for any
infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.
"Intellectual Property Collateral": all Intellectual
Property of the Loan Parties, now owned or hereafter acquired, upon
which a Lien is purported to be created by the Intellectual Property
Security Agreements or the Security Agreement.
"Intellectual Property Security Agreement": any Intellectual
Property Security Agreement executed and delivered by a Loan Party
from time to time, substantially in the form of Exhibit C to the
Security Agreement.
"Intercreditor Agreement": the Intercreditor Agreement
substantially in the form of Exhibit K hereto, dated as of the date
hereof, among the Administrative Agent, the 2014 Notes Indenture
Trustee and the Collateral Agent.
"Interest Payment Date": (a) as to any Base Rate Loan, the
last day of each March, June, September and December to occur while
such Loan is outstanding and the final maturity date of such Loan,
(b) as to any Eurodollar Loan having an Interest Period of three
months or less, the last day of such Interest Period, (c) as to any
Eurodollar Loan having an Interest Period longer than three months,
each day which is three months, or an integral multiple thereof,
after the first day of such Interest Period and the last day of such
Interest Period and (d) as to any Loan (other than any Revolving
Credit Loan that is a Base Rate Loan (unless all Revolving Credit
Loans are being repaid in full in immediately available funds and the
Revolving Credit Commitments terminated) and any Swing Line Loan),
the date of any repayment or prepayment made in respect thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially,
the period commencing on the borrowing or conversion date, as the
case may be, with respect to such Eurodollar Loan and ending one,
two, three or six months thereafter, as selected by the Borrower in
its Notice of Advance Request, Notice of Borrowing or notice of
conversion, as the case may be, given with respect thereto; and (b)
thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the
Borrower by irrevocable notice to the Administrative Agent not less
than three Business Days prior to the last day of the then current
Interest Period with respect thereto; provided, that all of the
foregoing provisions relating to Interest Periods are subject to the
following:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest
Period into another calendar month in which event such
Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period that would otherwise
extend beyond the Scheduled Revolving Credit Termination
Date or the Scheduled Term Loan Termination Date, as the
case may be, shall end on the Revolving Credit Termination
Date or the Term Loan Termination Date, as applicable; and
(iii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the
last Business Day of a calendar month.
"Investments": as defined in Section 7.8.
"Issuing Lender": Deutsche Bank Trust Company Americas and
any other Revolving Credit Lender which at the request of the
Borrower and with the consent of the Administrative Agent agrees to
issue Letters of Credit. As of the Closing Date, the sole Issuing
Lender shall be Deutsche Bank Trust Company Americas.
"Koval Land": the approximately 18 acres of land located
across from the Project on Koval Lane and Sands Avenue and owned as
of the Closing Date by Wynn Sunrise.
"L/C Commitment": $25,000,000.
"L/C Fee Payment Date": the last day of each March, June,
September and December and the last day of the Revolving Credit
Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum
of (a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of
drawings under Letters of Credit that have not then been reimbursed
pursuant to Section 3.5.
"L/C Participants": the collective reference to all the
Revolving Credit Lenders other than the Issuing Lender.
"Las Vegas Jet": Las Vegas Jet, LLC, a Nevada limited
liability company.
"Last Project Final Completion Date": a defined in the
Disbursement Agreement.
"Lender Addendum": with respect to any initial Lender, a
Lender Addendum, substantially in the form of Exhibit J hereto, to be
executed and delivered by such Lender on the Closing Date as provided
in Section 10.18.
"Lender Default": the failure or refusal (which has not been
retracted in writing) of a Lender to make available (a) its portion
of any Loan required to be made by such Lender hereunder (including,
without limitation, under Section 2.7(b)), (b) its portion of any
unreimbursed payment required to be made by such Lender under Section
3.4, (c) its portion of any participating interest required to be
purchased by such Lender pursuant to Section 2.7(c) or (d) any amount
required to be paid and/or reimbursed by such Lender to any Agent or
any other Lender hereunder or under any other Loan Document (whether
pursuant to Section 2.18(e) or otherwise), in each case at or prior
to such time that the same is required to be so made, reimbursed or
purchased by such Lender.
"Lenders": the Swing Line Lender, each Revolving Credit
Lender, each Term Loan Lender and the Issuing Lender.
"Letter of Credit Commitment Period": the period from and
including the Closing Date to the date that is 30 days prior to the
Scheduled Revolving Credit Termination Date.
"Letter of Credit Request": a certificate duly executed by a
Responsible Officer of the Borrower substantially in the form of
Exhibit O hereto.
"Letters of Credit": as defined in Section 3.1(a).
"License Revocation": the revocation, failure to renew or
suspension of, or the appointment of a receiver or similar official
with respect to, any casino, gambling or gaming license, including,
without limitation, any Nevada Gaming Approvals, covering any portion
of the Project.
"Lien": with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in
respect of such Property, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or
other title retention agreement, any lease in the nature thereof and
any option or other agreement to sell or give a security interest in
such Property but excluding any license or similar agreement (such as
an option to obtain a license) of Intellectual Property).
"Liquidated Damages": any proceeds or liquidated damages
paid pursuant to any obligation, default or breach under the Project
Documents (net of costs, fees and expenses incurred by a Loan Party
pursuant to arm's length transactions in connection with adjustment
or settlement thereof and taxes paid with respect thereto). For
purposes of this definition, so-called "liquidated damages" insurance
policies shall be deemed to be Project Documents.
"Liquidity Reserve Payment Date": the date no later than
five days after the earlier of (a) the date on which the financial
statements of the Loan Parties referred to in Section 6.1(a) or (b),
as the case may be, for the Quarterly Date upon which the
requirements of Section 2.12(f) are satisfied, are required to be
delivered to the Lenders and (b) the date such financial statements
are actually delivered.
"Loan": any Revolving Credit Loan, Term Loan or Swing Line
Loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Security Documents,
the Disbursement Agreement, the Intercreditor Agreement, the
Management Fee Subordination Agreement, the Completion Guaranty, the
Indemnity Agreements, the Notes, the Administrative Agent Fee Letter,
the Facility Fee Letter and any other loan agreements entered into
from time to time by any Loan Party with the Administrative Agent in
its capacity as such.
"Loan Parties": the Borrower, Capital Corp., Show
Performers, Wynn Golf, Wynn Sunrise, World Travel, Las Vegas Jet and
each other Subsidiary of the Borrower (including any such Subsidiary
that becomes a party to a Loan Document pursuant to Section 6.10(b))
other than the Completion Guarantor or any trust that owns the
Aircraft.
"Local Company Collateral Account Agreement(s)": as defined
in the Disbursement Agreement.
"Loss Proceeds": as defined in the Disbursement Agreement.
"Macau Loan": the Investments described in Section 7.8(l).
"Major Project Participant": each Person who is a party to a
Material Contract (other than a Loan Party).
"Majority Initial Lending Institutions": at any time, the
Initial Lending Institutions holding more than 50% of the sum of (i)
the Total Initial Lending Institutions Term Loan Commitments then in
effect or, if the Term Loan Commitments have been terminated, the
Total Initial Lending Institutions Term Loan Extensions of Credit
then outstanding and (ii) the Total Initial Lending Institutions
Revolving Credit Commitments then in effect or, if the Revolving
Credit Commitments have been terminated, the Total Initial Lending
Institutions Revolving Extensions of Credit then outstanding;
provided, that, for purposes of determining the Revolving Credit
Commitments, Term Loan Commitments, Revolving Extensions of Credit or
Term Loan Extensions of Credit, as applicable, held by an Initial
Lending Institutions at any time pursuant to this definition only,
each Initial Lending Institutions shall be deemed to hold such
Revolving Credit Commitments, Term Loan Commitments, Revolving
Extensions of Credit or Term Loan Extensions of Credit, as
applicable, held by its Affiliates in addition to that held by it
directly.
"Majority of the Arrangers": at any time, the majority of
the Arrangers, as determined by number of Arrangers and not by
Commitments or other extensions of credit under this Agreement or the
other Loan Documents.
"Management Agreement": the Management Agreement, dated as
of the date hereof, between the Loan Parties, on the one hand, and
Wynn Resorts, on the other hand.
"Management Fee Subordination Agreement": the Management Fee
Subordination Agreement, dated as of December 14, 2004, among the
Loan Parties, Wynn Resorts, the 2014 Notes Indenture Trustee and the
Administrative Agent.
"Management Fees": as defined in the Management Agreement.
"Managers": collectively, Deutsche Bank Securities Inc., in
its capacity as a joint book running manager, Banc of America
Securities LLC, in its capacity as a joint book running manager,
Bear, Stearns & Co. Inc., in its capacity as a joint book running
manager, SG Americas Securities, LLC, in its capacity as joint book
running manager, and J.P. Morgan Securities Inc., in its capacity as
joint book running manager.
"Material Adverse Effect": one or a combination of
conditions or changes affecting, in a material adverse way (a) the
business, assets, liabilities, property, condition (financial or
otherwise), results of operations, prospects, value or management of
the Borrower and the other Loan Parties taken as a whole, (b) the
Project, (c) the validity or enforceability of this Agreement or any
of the other Loan Documents, (d) the validity, enforceability or
priority of the Liens purported to be created by the Security
Documents, or (e) the rights or remedies of any Secured Party
hereunder or under any of the other Loan Documents.
"Material Construction Agreements": as defined in the
Disbursement Agreement.
"Material Contract": (a) the Material Construction
Agreements, the Golf Course Lease, the Management Agreement, the
Project Services Agreement and the Water Show Entertainment and
Production Agreement and (b) any other contract or arrangement to
which (i) a Loan Party, on the one hand, and an Affiliate of such
Loan Party (including any other Loan Party), on the other hand, are
parties pursuant to which the Loan Parties are, or any one of them
is, reasonably expected to incur obligations or liabilities with a
Dollar value in excess of $5,000,000 during the term of such contract
or arrangement or (ii) any Loan Party is a party (other than the
Financing Documents or any other agreements relating to Indebtedness
permitted hereunder) for which breach, nonperformance, cancellation
or failure to renew could reasonably be expected to have a Material
Adverse Effect (taking into consideration any viable replacements or
substitutions therefor at the time such determination is made).
"Moody's": Moody's Investors Service, Inc., a Delaware
corporation, or any successor thereof.
"Mortgaged Properties": the real properties and leasehold
estates listed on Schedule 1.1 or otherwise as to which the
Collateral Agent for the benefit of, among others, the Secured
Parties shall be granted a Lien pursuant to the Mortgages. For
purposes of clarification, subject to Section 6.7, the leasehold
estate described under number 2 of Schedule 4.25(a) is not a
Mortgaged Property and the Lien of the Secured Parties created under
the Security Documents shall not attach thereto.
"Mortgages": each of the mortgages, deeds of trust and deeds
to secure Obligations made by any Loan Party in favor of, or for the
benefit of, the Collateral Agent for the benefit of the Secured
Parties (including, without limitation, the Borrower Mortgage, the
Wynn Golf Mortgage and the Wynn Sunrise Mortgage), substantially in
the form of Exhibit D hereto (with such changes thereto as shall be
advisable under the law of the jurisdiction in which such mortgage,
deed of trust or deed is to be recorded).
"Mr. Wynn": Stephen A. Wynn, an individual, and his heirs.
"Multiemployer Plan": a Plan that is a multiemployer plan as
defined in Section 3(37) or 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale
or other Disposition, the proceeds thereof in the form of cash and
Cash Equivalents (including any such proceeds received by way of
deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise, but
only as and when received) of such Asset Sale or other Disposition,
net of attorneys' fees, accountants' fees, investment banking fees,
amounts required to be applied to the repayment of Indebtedness
secured by a Lien (including any penalty, premium or make-whole
amounts related thereto) expressly permitted hereunder on any asset
which is the subject of such Asset Sale or other Disposition (other
than any Lien pursuant to a Security Document or any other First Lien
Security Document or any Second Lien Security Document), commissions,
related surety costs and title insurance premiums and other fees and
expenses, in each case, to the extent actually incurred or reimbursed
by a Loan Party in connection with such Asset Sale or other
Disposition and net of taxes paid or reasonably estimated to be
payable (after taking into account any tax credits or deductions and
any tax sharing arrangements, in each case reducing the amount of
taxes so paid or estimated to be payable), purchase price adjustments
reasonably expected to be payable and reserves or other set asides
against liabilities, in each case as a result thereof and (b) in
connection with any issuance or sale of debt securities or
instruments or the incurrence of loans, the cash proceeds received
from such issuance or incurrence, net of attorneys' fees, investment
banking fees, accountants' fees, underwriting discounts and
commissions and other fees and expenses, in each case, to the extent
actually incurred or reimbursed by a Loan Party in connection
therewith.
"Net Revenues": for any period, the net revenues of the
Borrower and its consolidated Subsidiaries, as set forth on the
Borrower's income statement for the relevant period under the line
item "net revenues," calculated in accordance with GAAP and with
Regulation S-X under the Securities Act and in a manner consistent
with that customarily utilized in the gaming industry.
"Nevada Collateral Agent": Bank of America, N.A., as
collateral agent under the Collateral Agency Agreement.
"Nevada Gaming Approvals": with respect to any action by a
particular Person, any consent, approval or other authorization
required for such action by such Person from a Nevada Gaming
Authority or under Nevada Gaming Laws.
"Nevada Gaming Authorities": collectively, the Nevada Gaming
Commission, the Nevada State Gaming Control Board, the Clark County
Liquor and Gaming Licensing Board and any other federal, state or
local agency having jurisdiction over gaming operations in the State
of Nevada.
"Nevada Gaming Laws": the Nevada Gaming Control Act, as
codified in Chapter 463 of the NRS, the regulations of the Nevada
Gaming Commission promulgated thereunder, as amended from time to
time, and other laws or regulations promulgated by the Nevada Gaming
Authorities and applying to gaming operations in the State of Nevada.
"Non-Defaulting Lender": any Lender other than a Defaulting
Lender.
"Non-Excluded Taxes": as defined in Section 2.20(a).
"Non-U.S. Lender": as defined in Section 2.20(f).
"Notes": the collective reference to the Revolving Credit
Notes, the Term Notes and the Swing Line Notes, if any, evidencing
Loans.
"Notice of Advance Request": as defined in the Disbursement
Agreement.
"Notice of Borrowing": a certificate duly executed by a
Responsible Officer of the Borrower substantially in the form of
Exhibit M hereto.
"NRS": the Nevada Revised Statutes, as amended from time to
time.
"Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity
of the Loans and Reimbursement Obligations and interest accruing
after the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding, relating to any
Loan Party, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Loans and all other
obligations and liabilities of Wynn Resorts Holdings, or the Loan
Parties to any Arranger, to any Agent, to any Manager or to any
Lender (or, in the case of Specified Hedge Agreements, any affiliate
of any Lender), whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, this Agreement, any
other Loan Document, the Letters of Credit, any Specified Hedge
Agreement or any other document made, delivered or given in
connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees, charges and
disbursements of counsel to any Arranger, to any Agent, to any
Manager or to any Lender that are required to be paid by any Loan
Party pursuant hereto or to any other Loan Document) or otherwise.
"On-Site Cash": amounts held in cash at the Site in
connection with and necessary for the ordinary course operations of
the Project.
"Opening Date": as defined in the Disbursement Agreement.
"Operative Documents": the Financing Agreements and the
Project Documents.
"Participant": as defined in Section 10.6(b).
"Pass Through Entity": any of (a) a grantor trust for
federal or state income tax purposes or (b) an entity treated as a
partnership or a disregarded entity for federal or state income tax
purposes.
"Payment Amount": as defined in Section 3.5.
"Payment Office": the office of the Administrative Agent
specified in Section 10.2 or as otherwise specified from time to time
by the Administrative Agent as its payment office by notice to the
Borrower and the Lenders.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permits": the collective reference to (a) Environmental
Permits and (b) any and all other franchises, licenses, leases,
permits, approvals, notifications, certifications, registrations,
authorizations, exemptions, variances, qualifications, easements,
rights of way, Liens and other rights, privileges and approvals
required under any Requirement of Law (including Nevada Gaming Laws),
but excluding any license or similar agreement (such as an option to
obtain a license) of Intellectual Property .
"Permitted Businesses": (a) the gaming business, (b) the
development, construction, ownership and operation of a Gaming
Facility, (c) all businesses, whether or not licensed by the Nevada
Gaming Authorities, which are necessary for, incident to, useful to,
arising out of, supportive of or connected to the development,
construction, ownership or operation of a Gaming Facility, (d) any
development, construction, ownership or operation of lodging, retail,
restaurant or convention facilities, sports or entertainment
facilities, golf course facilities, art gallery facilities, food and
beverage distribution operations, transportation services (including
operation of the Aircraft and chartering thereof), parking services,
sales and marketing services, sales, leasing and repair of
automobiles or other activities related to the foregoing, (e) any
development, construction, ownership or operation of a full
destination service resort, including, without limitation,
residential or vacation housing facilities (including, without
limitation, timeshares, interval ownership and condominiums and
similar developments), and parking services, sales and marketing
services or other activities related to the foregoing, (f) any
business (including any related internet business) that is a
reasonable extension, development or expansion of any of the
foregoing or incidental thereto and/or (g) the ownership by a Person
of Capital Stock in its Subsidiaries; provided, however, that with
respect to the Borrower and its Subsidiaries other than, with respect
to the ownership and operation of the Aircraft only, World Travel and
Las Vegas Jet, the foregoing shall only be Permitted Businesses to
the extent related to the Project or furtherance of the Project's
development, construction, ownership or operation; provided, further,
that, notwithstanding the foregoing, the Borrower shall be permitted
to (i) make the Macau Loan and (ii) pay Allocable Overhead as
otherwise permitted under this Agreement.
"Permitted C-Corp. Conversion": a transaction resulting in
the Borrower, any other Loan Party or the Completion Guarantor
becoming a subchapter "C" corporation under the Code, so long as, in
connection with such transaction (a) the subchapter "C" corporation
resulting from such transaction is a corporation organized and
existing under the laws of any state of the United States or the
District of Columbia and the Beneficial Owners of the Capital Stock
of the subchapter "C" corporation shall be the same, and shall be in
the same percentages, as the Beneficial Owners of the Capital Stock
of the applicable entity immediately prior to such transaction, (b)
the subchapter "C" corporation resulting from such transaction
assumes in writing all of the obligations, if any, of the applicable
entity under the Loan Documents and all other material documents and
instruments to which such Person is a party, (c) to the extent the
Liens securing the Obligations on the Property of the applicable
entity immediately prior to such transaction do not survive with
respect to the subchapter "C" corporation resulting from such
transaction, such subchapter "C" corporation complies with the
requirements of Section 6.10 as if it and/or its Property, as the
case may be, was newly acquired on the date of the applicable
Permitted C-Corp. Conversion, (d) the Required Lenders are given not
less than 45 days' advance written notice of such transaction and
evidence reasonably satisfactory to the Required Lenders (including,
without limitation, title insurance and a reasonably satisfactory
opinion of counsel) regarding the maintenance of the perfection and
priority of Liens granted, or intended to be granted, in favor of the
Secured Parties in the Collateral following such transaction, (e)
such transaction would not cause or result in a Default or an Event
of Default; (f) such transaction does not result in the loss or
suspension or material impairment of any material Permit unless a
comparable Permit is effective prior to or simultaneously with such
loss, suspension or material impairment, (f) such transaction does
not require any Lender to obtain any license, permit, franchise or
other authorization from any Nevada Gaming Authority necessary on the
date of the Permitted C-Corp. Conversion or at any time thereafter to
own, lease, operate or otherwise conduct the gaming business of the
Borrower or any other Loan Party or be qualified or found suitable
under the laws of any applicable gaming jurisdiction and (g) the
Borrower shall have delivered to the Administrative Agent an opinion
of counsel of national repute in the United States reasonably
acceptable to the Administrative Agent confirming that neither the
Borrower nor any other Loan Party nor any of the Lenders will
recognize income, gain or loss for United States federal or state
income tax purposes as a result of such Permitted C-Corp. Conversion.
"Permitted Encumbrances": as defined in the Disbursement
Agreement.
"Permitted Liens": the collective reference to (a) in the
case of Collateral other than Pledged Stock, Liens permitted by
Section 7.3 (but only of the priority and to the extent of coverage
expressly set forth in Section 7.3 and the Security Agreement and
subject to the provisions of the Intercreditor Agreement) and (b) in
the case of Collateral consisting of Pledged Stock, non-consensual
Liens permitted by Section 7.3 to the extent arising by operation of
law and Liens permitted by Section 7.3(k).
"Permitted Refinancing Indebtedness": any Indebtedness of
any Loan Party issued in exchange for, or the net proceeds of which
are used to extend, refinance, renew, replace, defease or refund any
First Lien Secured Obligations or any Second Lien Secured
Obligations; provided, that (a) the principal amount (or accreted
value, if applicable) of such Permitted Refinancing Indebtedness does
not exceed the principal amount (or accreted value, if applicable) of
the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded (plus all accrued interest on such Indebtedness
and the amount of all expenses and premiums incurred in connection
therewith), (b) such Permitted Refinancing Indebtedness has a final
maturity date not earlier than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded, (c)
the restrictions on the Loan Parties contained in the agreements
governing such Permitted Refinancing Indebtedness are no more
restrictive, taken as a whole, than those contained in the agreements
governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded and, in any event, the differences
between the restrictions on the Loan Parties in the agreements
governing such Permitted Refinancing Indebtedness from those
contained in the agreements governing the Indebtedness being
extended, refinancing, renewed, replaced, defeased or refunded, taken
as a whole, could not reasonably be expected to be materially adverse
to the Loan Parties (taken as a whole) or the Lenders and (d) the
relevant holders of such Permitted Refinancing Indebtedness become
party to the Intercreditor Agreement. In the event Permitted
Refinancing Indebtedness is used to extend, refinance, renew,
replace, amend and restate, restate, defease or refund the 2014 Notes
all relevant definitions and provisions of the Loan Documents related
to the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded shall be amended, as necessary, to reflect such
Permitted Refinancing Indebtedness and related documentation and/or
arrangements by action of the Administrative Agent without the
consent of the Lenders.
"Permitted Securities": (a) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States
government or issued by any agency thereof and backed by the full
faith and credit of the United States, in each case maturing within
18 months from the date of acquisition, (b) shares of money market,
mutual or similar funds which invest exclusively in assets satisfying
the requirements of clause (a) of this definition or (c) shares of,
or an investment in, the JPMorgan Federal Money Market Fund.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"Phase I Completion Date": as defined in the Disbursement
Agreement.
"Phase I Final Completion Date": the Final Completion Date
with respect to the Phase I Project.
"Phase I Opening Date": as defined in the Disbursement
Agreement.
"Phase I Project": as defined in the Disbursement Agreement.
"Phase I Substantial Completion Date": as defined in the
Disbursement Agreement.
"Phase II Approval Date": as defined in the Disbursement
Agreement.
"Phase II Commitment Sunset Date": June 30, 2005.
"Phase II Completion Date": as defined in the Disbursement
Agreement.
"Phase II Final Completion Date": the Final Completion Date
with respect to the Phase II Project.
"Phase II Opening Date": as defined in the Disbursement
Agreement.
"Phase II Project": as defined in the Disbursement
Agreement.
"Plan": at a particular time, any employee benefit plan that
is subject to the requirements of Section 412 of the Code or that is
a Single Employer Plan and which the Borrower or any other Loan Party
or any Commonly Controlled Entity maintains, administers, contributes
to or is required to contribute to or under which the Borrower or any
other Loan Party or any Commonly Controlled Entity could incur any
liability.
"Plans and Specifications": as defined in the Disbursement
Agreement.
"Pledged Stock": as defined in the Security Agreement.
"Points of Diversion": with respect to any water permit held
by any Loan Party or otherwise utilized or expected to be utilized
with respect to the Project, the locations designated under such
water permit where a well can be located for the draw of water under
such water permit.
"Presumed Tax Liability": for any Person that is not a Pass
Through Entity for any period, an amount equal to the product of (a)
the Taxable Income allocated or attributable to such Person (directly
or through one or more tiers of Pass Through Entities) (net of
taxable losses allocated to such Person with respect to any Loan
Party that (i) are, or were previously, deductible by such Person and
(ii) have not previously reduced Taxable Income) and (b) the Presumed
Tax Rate.
"Presumed Tax Rate": with respect to any Person for any
period means the highest effective combined Federal, state and local
income tax rate applicable during such period to a corporation
organized under the laws of the State of Nevada, taxable at the
highest marginal Federal income tax rate and the highest marginal
Nevada and Las Vegas income tax rates (after giving effect to the
Federal income tax deduction for such state and local income taxes,
taking into account the effects of the alternative minimum tax, such
effects being calculated on the assumption that such Person's only
taxable income is the income allocated or attributable to such Person
for such period (directly or through one or more tiers of Pass
Through Entities) with respect to its equity interest in any of the
Loan Parties that is a Pass Through Entity.) In determining the
Presumed Tax Rate, the character of the items of income and gain
comprising Taxable Income (e.g. ordinary income or long term capital
gain) shall be taken into account.
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Prime Rate": shall mean the rate which Deutsche Bank Trust
Company Americas announces, from time to time, as its prime lending
rate, the Prime Rate to change when and as such prime lending rate
changes. The Prime Rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged by Deutsche Bank
Trust Company Americas to any customer of Deutsche Bank Trust Company
Americas. The Borrower acknowledges that Deutsche Bank Trust Company
Americas may, from time to time, make commercial loans or other loans
at rates of interest at, above or below the Prime Rate.
"Proceedings": as defined in Section 6.2(n).
"Project": (a) until the earlier of the Phase II Approval
Date or the Phase II Commitment Sunset Date, the Phase I Project, (b)
from and after the Phase II Commitment Sunset Date (if the Phase II
Approval Date has not by then occurred), collectively the Phase I
Project and all other Property of the Loan Parties and (c) from and
after the Phase II Approval Date, collectively the Phase I Project,
the Phase II Project and all other Property of the Loan Parties;
provided that for purposes of Section 2.24 only, the term "Project"
shall mean (i) for the period after the Phase I Substantial
Completion Date until the first to occur of the Phase II Commitment
Sunset Date (if the Phase II Approval Date has not by then occurred)
and the Phase II Completion Date, the Phase I Project and (ii) for
the period from and after the first to occur of the Phase II
Commitment Sunset Date (if the Phase II Approval Date has not by then
occurred) and the Phase II Completion Date, collectively the Phase I
Project and all other Property of the Loan Parties (including,
without limitation, the Phase II Project (if any)).
"Project Budget" as defined in the Disbursement Agreement.
"Project Costs": as defined in the Disbursement Agreement.
"Project Documents": collectively, each document or
agreement entered into on, prior to or after the Closing Date
(including Material Contracts and Additional Material Contracts)
relating to the design, engineering, development, construction,
installation, maintenance or operation of the Project (including any
Guarantee Obligations in furtherance thereof) but, in any case,
excluding Financing Agreements.
"Project Liquidity Reserve Account": as defined in the
Disbursement Agreement.
"Project Phase": the Phase I Project or the Phase II
Project, as the context may require.
"Project Services Agreement": the Amended and Restated
Project Administration Services Agreement, dated as of the date
hereof, between the Borrower and Wynn Design.
"Projections": as defined in Section 6.2(c).
"Property": any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible
or intangible, including, without limitation, Capital Stock.
"Quarterly Date": (a) with respect to the first Quarterly
Date, the earlier of (i) the last day of the first full fiscal
quarter of the Borrower beginning after the Phase I Opening Date and
(ii) December 31, 2005 and (b) with respect to each subsequent
Quarterly Date, the last day of the next succeeding fiscal quarter of
the Borrower.
"Real Estate": All real property held by the Loan Parties,
which the relevant Loan Party owns in fee or in which it holds a
leasehold interest as a tenant or in which it holds an easement right
as an easement holder or otherwise occupies, including, without
limitation, the real property more particularly identified in
Schedule 4.25(a) and includes, without limitation, the Site and the
Site Easements.
"Refinancing Transaction": collectively and in each case
occurring on the Closing Date, (a) the consummation of a tender offer
for the 2010 Notes, (b) the discharge of the 2010 Notes Indenture
pursuant to Article 12 of the 2010 Notes Indenture, (c) the payment
in full and termination of that certain Credit Agreement, dated as of
October 30, 2002, among the Borrower, Deutsche Bank Trust Company
Americas, as administrative agent, and the other banks and financial
institutions party thereto from time to time, (d) the payment in full
and termination of that certain Credit Agreement, dated as of May 3,
2004, among Bora Bora, LLC, Deutsche Bank Trust Company Americas, as
administrative agent, and the other banks and financial institutions
party thereto from time to time and (e) the payment in full and
termination of that certain Loan Agreement, dated as of October 30,
2002, among the Borrower, Wells Fargo Bank Nevada, National
Association, as collateral agent, and the other banks and financial
institutions party thereto from time to time.
"Refunded Swing Line Loans": as defined in Section 2.7(b).
"Refunding Date": as defined in Section 2.7(c).
"Register": as defined in Section 10.6(d).
"Regulation D": Regulation D of the Board as in effect from
time to time (and any successor to all or a portion thereof).
"Regulation H": Regulation H of the Board as in effect from
time to time (and any successor to all or a portion thereof).
"Regulation T": Regulation T of the Board as in effect from
time to time (and any successor to all or a portion thereof).
"Regulation U": Regulation U of the Board as in effect from
time to time (and any successor to all or a portion thereof).
"Regulation X": Regulation X of the Board as in effect from
time to time (and any successor to all or a portion thereof).
"Reimbursement Obligation": the obligation of the Borrower
to reimburse the Issuing Lender pursuant to Section 3.5 for amounts
drawn under Letters of Credit.
"Reinvested Amounts": as defined in Section 2.12(c).
"Reinvestment Deferred Amount": with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by the
Borrower or any other Loan Party in connection therewith that are not
applied to prepay the Term Loans or reduce the Revolving Credit
Commitments pursuant to Section 2.12(b) as a result of the delivery
of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale in respect of which the
Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a
Responsible Officer of the Borrower and, if applicable, a Responsible
Officer of any other Loan Party who made or is making the
corresponding Asset Sale and delivered to the Administrative Agent
within 30 days after such Asset Sale, stating that no Default or
Event of Default has occurred and is continuing and that the Borrower
(and, if applicable, such other Loan Party) intends and expects to
use all or a specified portion of the Net Cash Proceeds of such Asset
Sale to acquire assets useful in its Permitted Businesses.
"Reinvestment Prepayment Amount": with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto
less any amount expended prior to the relevant Reinvestment
Prepayment Date to acquire assets useful in the Borrower's or the
other applicable Loan Party's, as the case may be, Permitted
Businesses.
"Reinvestment Prepayment Date": with respect to any
Reinvestment Event, the earlier of (a) the date occurring 360 days
after such Reinvestment Event (or, if the related Asset Sale occurs
on or before the Phase I Opening Date, the date occurring 90 days
after such Reinvestment Event) and (b) the date on which the Borrower
or the applicable Loan Party shall have determined not to acquire
assets useful in its respective Permitted Business with all or any
portion of the relevant Reinvestment Deferred Amount.
"Related Party": either (a) any 80% (or more) owned
Subsidiary, heir, estate, lineal descendent or immediate family
member of Mr. Wynn; or (b) any trust, corporation, partnership or
other entity, the beneficiaries, equity holders, partners, owners or
Persons beneficially holding an 80% or more controlling interest of
which consist of Mr. Wynn and/or such other Persons referred to in
the immediately preceding clause (i).
"Release": any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge,
dispersal, dumping, leaching or migration of Hazardous Substances
into the indoor or outdoor environment (including the abandonment or
disposal of any barrels, containers or other closed receptacles
containing any Hazardous Substances), including the movement of any
Hazardous Substances through the air, soil, surface water or
groundwater.
"Relevant Fiscal Year": (i) if the Phase II Approval Date
has not occurred on or prior to the Phase II Commitment Sunset Date,
the 2005 Fiscal Year and (ii) if the Phase II Approval Date has
occurred on or prior to the Phase II Commitment Sunset Date, the
Fiscal Year in which the Phase II Opening Date occurs.
"Reorganization": with respect to any Multiemployer Plan,
the condition that such plan is in reorganization within the meaning
of Section 4241 of ERISA.
"Repair Plan": as defined in Section 2.24(a)(iv).
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under applicable regulations.
"Required Facility Lenders": with respect to any Facility
(a) at any time on or after the termination of the Term Loan
Commitments or the Revolving Credit Commitments, as the case may be,
Non-Defaulting Lenders holding more than 50% of the Total Term Loan
Extensions of Credit of Non-Defaulting Lenders or the Total Revolving
Extensions of Credit of Non-Defaulting Lenders, as the case may be,
or (b) at any time prior to any termination of the Term Loan
Commitments or the Revolving Credit Commitments, as the case may be,
Non-Defaulting Lenders holding more than 50% of the Total Term Loan
Commitments (less the aggregate Term Loan Commitments of Defaulting
Lenders) or Total Revolving Credit Commitments (less the aggregate
Revolving Credit Commitments of Defaulting Lenders), as the case may
be.
"Required Lenders": at any time, Non-Defaulting Lenders
holding more than 50% of the sum of (a) the Total Term Loan
Commitments (less the aggregate Term Loan Commitments of Defaulting
Lenders) then in effect or, if the Term Loan Commitments have been
terminated, the Total Term Loan Extensions of Credit of
Non-Defaulting Lenders then outstanding and (b) the Total Revolving
Credit Commitments (less the aggregate Revolving Credit Commitments
of Defaulting Lenders) then in effect or, if the Revolving Credit
Commitments have been terminated, the Total Revolving Extensions of
Credit of Non-Defaulting Lenders then outstanding.
"Requirement of Law": as to any Person, the Governing
Documents of such Person, and any law, treaty, order, rule or
regulation or determination of an arbitrator or a court or other
Governmental Authority, including, without limitation, Permits, in
each case applicable to or binding upon such Person or any of its
Property or to which such Person or any of its Property is subject.
"Responsible Officer": as to any Person, the chief executive
officer, president or chief financial officer of such Person, but in
any event, with respect to financial matters, the chief financial
officer of such Person. All references to a "Responsible Officer"
shall refer to a Responsible Officer of the Borrower or Wynn Resorts.
"Restricted Payments": as defined in Section 7.6.
"Retail Facility": an up to approximately 60,000 square foot
retail facility adjoining the Project on the Site (other than any
retail facility contemplated in the Plans and Specifications on the
Closing Date).
"Revolving Commitment Fee": as defined in Section 2.9(a).
"Revolving Commitment Fee Rate": in each case subject to the
proviso below, (a) during the period from and including the Closing
Date until the first Quarterly Date (or in the case of such proviso,
the first Adjustment Date occurring after the first Quarterly Date),
0.75% per annum and (b) during the period from and including the
first Quarterly Date until the first Adjustment Date occurring after
the Initial Phase II Calculation Date, 0.50% per annum; provided
that, notwithstanding clauses (a) and (b) above, on and after the
first Adjustment Date occurring after either the first Quarterly Date
(in the event that the Phase II Commitment Sunset Date occurs without
the Phase II Approval Date having occurred) or the Initial Phase II
Calculation Date (in the event that the Phase II Approval Date occurs
on or prior to the Phase II Commitment Sunset Date), the Revolving
Commitment Fee Rate will be determined pursuant to the Pricing Grid.
"Revolving Credit Commitment": as to any Lender, the
obligation of such Lender, if any, to make Revolving Credit Loans
and/or participate in Swing Line Loans and Letters of Credit, in an
aggregate principal and/or face amount not to exceed the amount set
forth under the heading "Revolving Credit Commitment" opposite such
Lender's name on Schedule 1 to the Lender Addendum delivered by such
Lender, or, as the case may be, in the Assignment and Acceptance
pursuant to which such Lender became a party hereto, as the same may
be changed from time to time pursuant to the terms hereof.
"Revolving Credit Commitment Period": the period from and
including the Closing Date to the Revolving Credit Termination Date.
"Revolving Credit Facility": the Revolving Credit
Commitments and the extensions of credit made thereunder.
"Revolving Credit Lender": each Lender that has a Revolving
Credit Commitment or that is the holder of Revolving Credit Loans.
"Revolving Credit Loans": as defined in Section 2.3.
"Revolving Credit Notes": as defined in Section 2.8(e).
"Revolving Credit Percentage": as to any Revolving Credit
Lender at any time, the percentage which such Lender's Revolving
Credit Commitment then constitutes of the Total Revolving Credit
Commitments (or, at any time after the Revolving Credit Commitments
shall have expired or terminated, the percentage which the aggregate
principal and/or face amount of such Lender's Revolving Extensions of
Credit then outstanding constitutes of the aggregate principal and/or
face amount of the Total Revolving Extensions of Credit then
outstanding).
"Revolving Credit Termination Date": the earlier of (a) the
Scheduled Revolving Credit Termination Date and (b) the date on which
the Loans become due and payable pursuant to Section 8.
"Revolving Extensions of Credit": as to any Revolving Credit
Lender at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Revolving Credit Loans made by such Lender
then outstanding, (b) such Lender's Revolving Credit Percentage of
the L/C Obligations then outstanding and (c) such Lender's Revolving
Credit Percentage of the aggregate principal amount of Swing Line
Loans then outstanding.
"S&P": Standard & Poor's Ratings Group, a New York
corporation, or any successor thereof.
"Scheduled Revolving Credit Termination Date": the fifth
anniversary of the Closing Date.
"Scheduled Term Loan Termination Date": the seventh
anniversary of the Closing Date.
"SEC": the Securities and Exchange Commission (or successors
thereto or an analogous Governmental Authority).
"Second Lien Secured Obligations": as defined in the
Intercreditor Agreement.
"Second Lien Security Document": as defined in the
Intercreditor Agreement.
"Secured Parties": collectively, the Arrangers, the Agents,
the Managers, the Lenders and, with respect to any Specified Hedge
Agreement, any affiliate of any Lender party thereto (or any Person
that was a Lender or an affiliate thereof when such Specified Hedge
Agreement was entered into) that has agreed to be bound by the
provisions of Section 6.2 of the Security Agreement as if it were a
party thereto, and by the provisions of Section 9 hereof as if it
were a Lender party hereto.
"Securities Intermediary": as defined in the Disbursement
Agreement.
"Security Agreement": the Pledge and Security Agreement
substantially in the form of Exhibit P hereto, dated as of the date
hereof, among each Loan Party, Wynn Resorts Holdings and the
Collateral Agent.
"Security Documents": the collective reference to the
Guarantee, the Security Agreement, the Intellectual Property Security
Agreements, the Control Agreements, the Mortgages, the Consents, the
Collateral Agency Agreement and all other pledge and security
documents hereafter delivered to the Collateral Agent or the
Administrative Agent granting a Lien on any Property (or associated
with such a grant) of any Person to secure the obligations and
liabilities of any Loan Party, Wynn Resorts Holdings or the
Completion Guarantor under any Loan Document.
"Senior Permitted Liens": Permitted Liens that are expressly
permitted by the terms of the Loan Documents to be superior in
priority to the Liens of the Security Documents.
"Show Performers": Wynn Show Performers, LLC, a Nevada
limited liability company.
"Shuttle Easement Agreement": the Easement Agreement, dated
as of the date hereof between Wynn Golf and the Borrower.
"Single Employer Plan": any Plan that is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Site": all or any portion of the Real Estate. The Site
includes, without limitation, the Wynn Home Site Land (until such
time (if ever) as such Property has been Disposed of in accordance
with Section 7.5(j)), the Golf Course Land (until such time (if ever)
as such Property has been Disposed of in accordance with Section
7.5(k) or released pursuant to Section 10.22 or distributed pursuant
to Section 7.6), the Home Site Land (until such time (if ever) as
such Property has been Disposed of in accordance with Section 7.5(l))
and any other Property which is subject to a Lien under any Mortgage
(in each such case, until such Property is Disposed of and released
from the Lien of the Security Documents in accordance with this
Agreement.)
"Site Easements": the easements appurtenant, easements in
gross, license agreements and other rights running for the benefit of
the Borrower or any other Loan Party and/or appurtenant to the Site,
including, without limitation, those certain easements and licenses
described in the Title Policies.
"Solvent": when used with respect to any Person, as of any
date of determination, (a) the amount of the "present fair saleable
value" of the assets of such Person will, as of such date, exceed the
amount of all "liabilities of such Person, contingent or otherwise",
as of such date, as such quoted terms are determined in accordance
with applicable federal and state laws governing determinations of
the insolvency of debtors, (b) the present fair saleable value of the
assets of such Person will, as of such date, be greater than the
amount that will be required to pay the liability of such Person on
its debts as such debts become absolute and matured, (c) such Person
will not have, as of such date, an unreasonably small amount of
capital with which to conduct its business and (d) such Person will
be able to pay its debts as they mature. For purposes of this
definition, (i) "debt" means liability on a "claim" and (ii) "claim"
means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured
or unsecured or (y) right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment, whether
or not such right to an equitable remedy is reduced to judgment,
fixed, contingent, matured or unmatured, disputed, undisputed,
secured or unsecured.
"Specified Hedge Agreement": any Hedge Agreement (a) entered
into by (i) the Borrower and (ii) any Lender or any affiliate
thereof, or any Person that was a Lender or an affiliate thereof when
such Hedge Agreement was entered into as counterparty and (b) which
has been designated by such Lender and the Borrower, by notice to the
Administrative Agent not later than 90 days after the execution and
delivery thereof by the Borrower, as a Specified Hedge Agreement;
provided, that the designation of any Hedge Agreement as a Specified
Hedge Agreement shall not create in favor of any Lender or affiliate
thereof that is a party thereto any rights in connection with the
management or release of any Collateral or of the obligations of any
Guarantor under the Guarantee.
"Stockholders Agreement": that certain Stockholders
Agreement, dated as of April 11, 2002, by and among Mr. Wynn, Baron
Asset Fund and Aruze USA, as in effect on the Closing Date.
"Stop Funding Notice": as defined in the Disbursement
Agreement.
"Subordinated Debt": Indebtedness of any Loan Party that (a)
does not have any scheduled principal payment, mandatory principal
prepayment, sinking fund payment or similar payment due prior to the
Scheduled Term Loan Termination Date, (b) is not secured by any Lien
on any Property, (c) is subordinated on terms and conditions
reasonably satisfactory to the Majority Initial Lending Institutions
and (d) is subject to such covenants and events of default as may be
reasonably acceptable to the Majority Initial Lending Institutions.
"Subordinated Intercompany Note": the Subordinated
Intercompany Note to be executed and delivered by the Borrower and
each of the other Loan Parties, substantially in the form of Exhibit
L hereto.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or
other ownership interests having ordinary voting power (other than
stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the
directors, managers or trustees of such corporation, partnership,
limited liability company or other entity are at the time owned, or
the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a "Subsidiary"
or to "Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower.
"Substitute Lender": as defined in Section 10.13(a).
"Swing Line Commitment": the obligation of the Swing Line
Lender to make Swing Line Loans pursuant to Section 2.6 in an
aggregate principal amount at any one time outstanding not to exceed
$10,000,000.
"Swing Line Credit Commitment Period": the period from and
including the Phase I Opening Date to the Revolving Credit
Termination Date.
"Swing Line Lender": Deutsche Bank Trust Company Americas,
in its capacity as the lender of Swing Line Loans.
"Swing Line Loans": as defined in Section 2.6.
"Swing Line Notes": as defined in Section 2.8(e).
"Swing Line Participation Amount": as defined in Section
2.7(c).
"Syndication Agent": Bank of America, N.A., in its capacity
as syndication agent.
"Synthetic Lease Obligations": all monetary obligations of a
Person under (a) a so-called synthetic, off-balance sheet or tax
retention lease, or (b) an agreement for the use or possession of
property creating obligations which do not appear on the balance
sheet of such Person but which, upon the insolvency or bankruptcy of
such Person, would be characterized as the Indebtedness of such
Person (without regard to accounting treatment). The amount of
Synthetic Lease Obligations in respect of any synthetic lease at any
date of determination thereof shall be equal to the aggregate
purchase price of any property subject to such lease less the
aggregate amount of payments of rent theretofore made which reduce
the lessee's obligations under such synthetic lease and which are not
the financial equivalent of interest.
"Taking": a taking or voluntary conveyance during the term
of this Agreement of all or part of any Mortgaged Property, or any
interest therein or right accruing thereto or use thereof, as the
result of, or in settlement of, any condemnation or other eminent
domain proceeding by any Governmental Authority affecting a Mortgaged
Property or any portion thereof, whether or not the same shall have
actually been commenced.
"Tax Amount": with respect to any period, (a) in the case of
any direct or indirect member of a Loan Party that is a Pass Through
Entity, the Presumed Tax Liability of such direct or indirect member
and (b) with respect to any of the Loan Parties that are Consolidated
Members, the aggregate federal income tax liability such Loan Parties
would owe for such period if each was a corporation filing federal
income tax returns on a stand alone basis at all times during its
existence and, if any of the Consolidated Members files a
consolidated or combined state income tax return such that it is not
paying its own state income taxes, then Tax Amount shall also include
the aggregate state income tax liability such Consolidated Members
would have paid for such period if each was a corporation filing
state income tax returns on a stand alone basis at all times during
its existence.
"Taxable Income": with respect to any Person for any period,
the taxable income or loss of such Person for such period for federal
income tax purposes as a result of such Person's equity ownership of
one or more Loan Parties that are Pass Through Entities for such
period; provided, however, that all items of income, gain, loss or
deduction required to be stated separately pursuant to Section
703(a)(1) of the Code shall be included in taxable income or loss.
"Term Loan Commitment": as to any Term Loan Lender, the
obligation of such Lender, if any, to make a Term Loan to the
Borrower hereunder in a principal amount not to exceed the amount set
forth under the heading "Term Loan Commitment" opposite such Lender's
name on Schedule 1 to the Lender Addendum delivered by such Lender,
or, as the case may be, in the Assignment and Acceptance pursuant to
which such Lender became a party hereto, as the same may be changed
from time to time pursuant to the terms hereof.
"Term Loan Commitment Fee Rate": 1.00% per annum.
"Term Loan Commitment Period": the period from and including
the Closing Date to the Term Loan Commitment Termination Date.
"Term Loan Commitment Termination Date": March 14, 2005.
"Term Loan Extensions of Credit": as to any Term Loan Lender
at any time, the aggregate principal amount of all Term Loans made by
such Lender then outstanding.
"Term Loan Facility": the Term Loan Commitments and the Term
Loans made thereunder.
"Term Loan Lender": each Lender that has a Term Loan
Commitment or is the holder of a Term Loan.
"Term Loan Percentage": as to any Term Loan Lender at any
time, the percentage which such Lender's Term Loan Commitment then
constitutes of the aggregate Term Loan Commitments (or, at any time
after the Term Loan Commitments shall have expired or terminated, the
percentage which the aggregate principal amount of such Lender's Term
Loans then outstanding constitutes of the aggregate principal amount
of all Term Loans then outstanding).
"Term Loan Termination Date": the earlier of (a) the
Scheduled Term Loan Termination Date and (b) the date on which the
Loans become due and payable pursuant to Section 8.
"Term Loans": as defined in Section 2.1(a).
"Term Notes": as defined in Section 2.8(e).
"Title Insurance Company": collectively, Commonwealth Land
Title Company and such other title insurance companies that have
issued Title Policies to the Collateral Agent on behalf of the
Lenders in connection with or related to any Mortgage.
"Title Policies": collectively, the policies of title
insurance issued by the Title Insurance Company with respect to the
Mortgages.
"Total Extensions of Credit": at any time, the sum of (a)
the Total Revolving Extensions of Credit and (b) the Total Term Loan
Extensions of Credit.
"Total Initial Lending Institution Revolving Credit
Commitments": at any time, the aggregate amount of the Revolving
Credit Commitments then in effect and held by the Initial Lending
Institutions or their Affiliates.
"Total Initial Lending Institution Revolving Extensions of
Credit": at any time, the aggregate amount of the Revolving
Extensions of Credit of the Revolving Credit Lenders outstanding at
such time and held by the Initial Lending Institutions or their
Affiliates.
"Total Initial Lending Institution Term Loan Commitments":
at any time, the aggregate amount of the Term Loan Commitments then
in effect and held by the Initial Lending Institutions or their
Affiliates.
"Total Initial Lending Institution Term Loan Extensions of
Credit": at any time, the aggregate amount of the Term Loan
Extensions of Credit of the Term Loan Lenders outstanding at such
time and held by the Initial Lending Institutions or their
Affiliates.
"Total Revolving Credit Commitments": at any time, the
aggregate amount of the Revolving Credit Commitments then in effect;
provided, that the amount of the Total Revolving Credit Commitments
on the Closing Date shall be $600,000,000.
"Total Revolving Extensions of Credit": at any time, the
aggregate amount of the Revolving Extensions of Credit of the
Revolving Credit Lenders outstanding at such time.
"Total Term Loan Commitments": at any time, the aggregate
amount of the Term Loan Commitments then in effect; provided, that
the amount of the Total Term Loan Commitments on the Closing Date
shall be $400,000,000.
"Total Term Loan Extensions of Credit": at any time, the
aggregate amount of the Term Loan Extensions of Credit of the Term
Loan Lenders outstanding at such time.
"Transferee": as defined in Section 10.15.
"Type": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar Loan.
"UCC": the Uniform Commercial Code (or any similar or
equivalent legislation), as in effect from time to time in any
applicable jurisdiction.
"Voting Stock": with respect to any Person as of any date,
the Capital Stock of such Person that is at the time entitled to vote
in the election of the Board of Directors of such Person.
"Water Show Entertainment and Production Agreement":
collectively, (a) that certain Production Services Agreement, dated
as of October 31, 2002, between the Borrower and Productions du
Dragon, S.A. ("Dragon") and (b) that certain License Agreement, dated
as of October 31, 2002, between the Borrower and Calitri Services and
Licensing Limited Liability Company ("Calitri").
"Weighted Average Life to Maturity": when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(a) the sum of the products obtained by
multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other
required payments of principal, including payment
at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest
one--twelfth) that will elapse between such date
and the making of such payment; by
(b) the then outstanding principal amount
of such Indebtedness.
"Wholly Owned Subsidiary": as to any Person, any other
Person all of the Capital Stock of which (other than directors'
qualifying shares required by law) is owned by such Person directly
and/or through other Wholly Owned Subsidiaries.
"Withdrawal Period": as defined in Section 10.13(b).
"World Travel": World Travel, LLC, a Nevada limited
liability company.
"Wynn Asia": Wynn Group Asia, Inc., a Nevada corporation.
"Wynn Design": Wynn Design & Development, LLC, a Nevada
limited liability company.
"Wynn Golf": Wynn Golf, LLC, a Nevada limited liability
company.
"Wynn Golf Indemnity Agreement": the Indemnity Agreement,
dated as of the date hereof, by Wynn Golf in favor of the
Administrative Agent.
"Wynn Golf Mortgage": the Deed of Trust, Assignment of Rents
and Leases, Security Agreement and Fixture Filing, dated as of the
date hereof, made by Wynn Golf to the Title Insurance Company for the
benefit of the Collateral Agent.
"Wynn Home Site Land": an approximately two-acre tract of
land located on the Golf Course Land where Mr. Wynn's personal
residence may be built, after Disposition of the Wynn Home Site Land
in accordance with Section 7.5(j).
"Wynn IP Agreement": the Intellectual Property License
Agreement, dated as of the date hereof, among Wynn Resorts Holdings,
Wynn Resorts and the Borrower.
"Wynn Macau": Wynn Resorts (Macau), S.A., a company
organized under the laws of Macau.
"Wynn Resorts": Wynn Resorts, Limited, a Nevada corporation.
"Wynn Resorts Holdings": Wynn Resorts Holdings, LLC, a
Nevada limited liability company.
"Wynn Sunrise": Wynn Sunrise, LLC, a Nevada limited
liability company.
"Wynn Sunrise Indemnity Agreement": the Indemnity Agreement,
dated as of the date hereof, by Wynn Sunrise in favor of the
Administrative Agent.
"Wynn Sunrise Mortgage": the Deed of Trust, Assignment of
Rents and Leases, Security Agreement and Fixture Filing, dated as of
the date hereof, made by Wynn Sunrise to the Title Insurance Company
for the benefit of the Collateral Agent.
"2010 Notes": the 12% Mortgage Notes due 2010 issued by the
Borrower and Capital Corp. pursuant to the 2010 Notes Indenture.
"2010 Notes Indenture": that certain Indenture, dated as of
October 30, 2002, among the Borrower, Capital Corp., certain
guarantors named therein and the 2010 Notes Indenture Trustee, as
supplemented by that certain First Supplemental Indenture, dated as
of the date hereof.
"2010 Notes Indenture Trustee": Wells Fargo Bank, National
Association in its capacity as the trustee under the 2010 Notes
Indenture and its successors in such capacity.
"2010 Notes Satisfaction Proceeds": all cash and securities
(and any account or trust arrangement in which such cash and
securities are held) delivered to the 2010 Notes Indenture Trustee in
accordance with Section 12.01 of the 2010 Notes Indenture on the
Closing Date.
"2014 Noteholders": the holders of the 2014 Notes from time
to time.
"2014 Notes": the 6 5/8% Mortgage Notes due 2014 issued by
the Borrower and Capital Corp. pursuant to the 2014 Notes Indenture
and any exchange notes related thereto as contemplated by the 2014
Notes Indenture.
"2014 Notes Debt Service": for any period, (a) all fees
payable during such period to the 2014 Notes Indenture Trustee and
the 2014 Noteholders under the 2014 Notes Indenture and related
agreements, documents and instruments and (b) interest on the 2014
Notes payable during such period.
"2014 Notes Indenture": that certain Indenture, dated as of
the date hereof, between the Borrower, Capital Corp., certain
guarantors named therein and the 2014 Notes Indenture Trustee.
"2014 Notes Indenture Trustee": U.S. Bank National
Association in its capacity as the trustee under the 2014 Notes
Indenture and its successors in such capacity.
"2014 Notes Proceeds Account": as defined in the
Disbursement Agreement.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the other Loan Documents or any certificate or other
document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Borrower and the other Loan Parties not
defined in Section 1.1 and accounting terms partly defined in Section 1.1, to
the extent not defined, shall have the respective meanings given to them under
GAAP.
(c) The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(e) The expressions "payment in full," "paid in full" and
any other similar terms or phrases when used herein with respect to the
Obligations shall mean the payment in full, in immediately available funds, of
all of the Obligations.
(f) The words "including" and "includes" and words of
similar import when used in this Agreement shall not be limiting and shall
mean "including without limitation" or "includes without limitation", as the
case may be.
(g) The words "will" and "shall" and words of similar import
when used in this Agreement shall mean a command.
(h) Upon termination of the Disbursement Agreement, any
defined terms used herein having meanings given to such terms in the
Disbursement Agreement shall continue to have the meanings given to such terms
in the Disbursement Agreement immediately prior to such termination.
(i) Unless expressly described to the contrary, references
to any document, instrument or agreement (i) shall include all exhibits,
schedules and other attachments thereto, (ii) shall include all documents,
instruments or agreements issued or executed in replacement thereof and (iii)
shall mean such document, instrument or agreement, or replacement or
predecessor thereto, as amended, restated, modified and supplemented from time
to time and in effect at the time of determination.
1.3 Certain Financial Calculations. (a) (a) For purposes of
Section 7.1(a) only, during the period, if any, between the Phase II Approval
Date and the Initial Phase II Calculation Date, Consolidated Total Debt, as
used in the calculation of the Consolidated Leverage Ratio pursuant thereto,
shall equal the Consolidated Total Debt as of the applicable Quarterly Date
less the aggregate amount of all Project Costs for the Phase II Project
expended on or prior to such Quarterly Date pursuant to the Disbursement
Agreement other than any such Project Costs paid with the proceeds of any
capital contributions from Wynn Resorts or its Affiliates. Any proceeds of the
2014 Notes applied on the Closing Date in order to consummate the Refinancing
Transaction shall not be deemed to be Project Costs with respect to the Phase
II Project.
(b) For purposes of calculating the Consolidated Leverage
Ratio for any four full fiscal quarter period ending on any of the first three
Quarterly Dates, the Consolidated EBITDA of the Borrower, as used in such
calculation of the Consolidated Leverage Ratio, shall be calculated on an
annualized basis.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Loan Commitments.(a) Subject to the terms and
conditions hereof, and in reliance upon the representations and warranties of
the Borrower herein set forth and, while in effect, the representations and
warranties set forth in the Disbursement Agreement, each Term Loan Lender
severally agrees to make term loans ("Term Loans") to the Borrower from time
to time during the Term Loan Commitment Period in an aggregate principal
amount not to exceed the amount of the Term Loan Commitment of such Lender.
The Term Loans may from time to time be Eurodollar Loans or Base Rate Loans,
as determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.5 and 2.13. Term Loans borrowed and subsequently
repaid or prepaid may not be reborrowed. Upon the earlier of the Term Loan
Commitment Termination Date and the date that all Term Loans have been
borrowed by the Borrower in accordance with this Agreement, the Term Loan
Commitments shall be deemed terminated.
(b) The Borrower shall borrow (i) no less than $200,000,000
in principal amount of Term Loans on or before February 14, 2005 and (ii) all
Term Loans on or before the Term Loan Commitment Termination Date.
2.2 Scheduled Amortization of Term Loans. The Borrower shall
make principal payments on the Term Loans on amortization dates in the amounts
set forth below opposite the applicable amortization date:
=============================================================
Amortization Date Scheduled
Repayment
of Term Loans
=============================================================
December 31, 2010 $200,000,000
-------------------------------------------------------------
Scheduled Term Loan Termination Date $200,000,000
-------------------------------------------------------------
provided, that the scheduled installments of principal of the Term Loans set
forth above shall be reduced in connection with any voluntary or mandatory
prepayments of the Term Loans in accordance with Sections 2.11, 2.12 and 2.18;
and provided, further that the Term Loans and all other amounts owed hereunder
with respect to the Term Loans shall be paid in full no later than the Term
Loan Termination Date, and the final installment payable by the Borrower in
respect of the Term Loans on such date shall be in an amount sufficient to
repay all amounts owing by the Borrower under this Agreement with respect to
the Term Loans.
2.3 Revolving Credit Commitments. Subject to the terms and
conditions hereof, and in reliance upon the representations and warranties of
the Borrower herein set forth and, while in effect, the representations and
warranties set forth in the Disbursement Agreement, each Revolving Credit
Lender severally agrees to make revolving credit loans ("Revolving Credit
Loans") to the Borrower from time to time during the Revolving Credit
Commitment Period in an aggregate principal amount at any one time outstanding
which, when added to such Lender's Revolving Credit Percentage of the sum of
(a) the L/C Obligations then outstanding and (b) the aggregate principal
amount of the Swing Line Loans then outstanding, does not exceed the amount of
such Lender's Revolving Credit Commitment. During the Revolving Credit
Commitment Period the Borrower may use the Revolving Credit Commitments by
borrowing, prepaying the Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. The
Revolving Credit Loans may from time to time be Eurodollar Loans or Base Rate
Loans, as determined by the Borrower and notified to the Administrative Agent
in accordance with Sections 2.5 and 2.13, provided that no Revolving Credit
Loan shall be made as a Eurodollar Loan after the day that is one month prior
to the Scheduled Revolving Credit Termination Date. Notwithstanding the
foregoing but excluding Revolving Credit Loans deemed requested pursuant to
Section 3.5 (which shall be permitted to be requested at any time in
accordance with Section 3.5), the Borrower shall not be permitted to borrow
Revolving Credit Loans until it has borrowed all Term Loans.
2.4 Term Loan Call Protection. All optional prepayments of
Term Loans effected on or prior to the first anniversary of the Closing Date
with the proceeds of a substantially concurrent issuance or incurrence of
secured Indebtedness under any credit facility (including any replacement or
incremental term loan facility effected pursuant to an amendment or
restatement of this Agreement) will be accompanied by the payment of a
prepayment fee equal to 1.00% of the aggregate principal amount of the Term
Loans so optionally prepaid if the interest rate spread (or margin) applicable
to such Indebtedness is, or upon satisfaction of certain express conditions
could reasonably be, less than the Applicable Margin then applicable to the
Term Loans.
2.5 Procedure for Borrowing. (a) Prior to the Final
Completion Date with respect to a Project Phase, the Borrower shall have the
right to borrow Loans, the proceeds of which are to be used to pay such
Project Phase's Project Costs. If the Borrower desires that Lenders make such
Loans, the Borrower shall comply with Section 2.3 of the Disbursement
Agreement. Notwithstanding any provisions of the Disbursement Agreement to the
contrary, each Notice of Advance Request and related Advance Confirmation
Notice from the Disbursement Agent in accordance with the provisions of
Section 2.3 of the Disbursement Agreement must be received by the
Administrative Agent prior to 12:00 Noon, New York City time, at least (i)
three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, or (ii) one Business Day prior to the requested Borrowing
Date, in the case of Base Rate Loans and must specify (x) the amount and Type
of Loans to be borrowed, (y) the requested Borrowing Date and (z) in the case
of Eurodollar Loans, the length of the initial Interest Period therefor. Upon
receipt of any Advance Confirmation Notice from the Disbursement Agent, the
Administrative Agent shall promptly notify each Term Loan Lender and/or
Revolving Credit Lender, as appropriate, thereof. Each such Lender will make
the amount of its pro rata share of each borrowing available to the
Administrative Agent at the Funding Office prior to 10:00 A.M., New York City
time, on the Borrowing Date requested by the Borrower in immediately available
Dollars. Such borrowing will then, upon satisfaction or waiver of the
conditions precedent specified in Section 5.2, be deposited by the
Administrative Agent, in immediately available Dollars, into the Disbursement
Account no later than 12:00 Noon, New York City time, on the applicable
Borrowing Date. The Disbursement Agent shall then make the proceeds of such
Loans available to the Borrower in accordance with and upon fulfillment of the
relevant conditions set forth in the Disbursement Agreement.
(b) On or after the Phase I Opening Date, the Borrower shall
have the right to borrow Loans, the proceeds of which are to be used for
purposes permitted hereby other than the payment of Project Costs. In
addition, the Borrower shall have the right to borrow Loans, the proceeds of
which are to be used solely to finance the Macau Loan, at any time. If the
Borrower desires that Lenders make Loans described in this Section 2.5(b), the
Borrower shall give the Administrative Agent irrevocable notice in a Notice of
Borrowing (which Notice of Borrowing must be received by the Administrative
Agent prior to 12:00 Noon, New York City time, at least (A) three Business
Days prior to the requested Borrowing Date, in the case of Eurodollar Loans,
or (B) one Business Day prior to the requested Borrowing Date, in the case of
Base Rate Loans), specifying (x) the amount and Type of Loans to be borrowed,
(y) the requested Borrowing Date and (z) in the case of Eurodollar Loans, the
length of the initial Interest Period therefor. Upon receipt of any such
Notice of Borrowing from the Borrower, the Administrative Agent shall promptly
notify each Term Loan Lender and/or Revolving Credit Lender thereof. Each such
Lender will make the amount of its pro rata share of each borrowing available
to the Administrative Agent for the account of the Borrower at the Funding
Office prior to 12:00 Noon, New York City time, on the Borrowing Date
requested by the Borrower in immediately available Dollars. Such borrowing
will then, upon satisfaction or waiver of the conditions precedent specified
in Section 5.3, be made available to the Borrower by the Administrative Agent
depositing into (which may take the form of crediting) a Funding Account of
the Borrower (as directed by the Borrower) with the aggregate of the amounts
made available to the Administrative Agent by the Lenders in immediately
available Dollars.
(c) Notwithstanding subsections (a) or (b) above, (i) if the
aggregate Term Loans advanced by the Term Loan Lenders through February 14,
2005 is less than $200,000,000, on February 14, 2005 the Borrower shall borrow
Term Loans in an amount no less than such shortfall and (ii) if the aggregate
Term Loans advanced by the Term Loan Lenders through the Term Loan Commitment
Termination Date is less than the Total Term Loan Commitments, on the Term
Loan Commitment Termination Date the Borrower shall borrow Term Loans in an
amount equal to the then Available Term Loan Commitments of all Term Loan
Lenders. In the event the Borrower is required to borrow Term Loans pursuant
to this subsection (c), the Borrower shall give the Administrative Agent
irrevocable notice in a Notice of Borrowing, the Administrative Agent shall
promptly notify each Term Loan Lender thereof and each Term Loan Lender will
make the amount of its pro rata share of each borrowing available to the
Administrative Agent for the account of the Borrower, in each case at such
time, in such form and otherwise as required pursuant to subsection (b) above.
Such borrowing will then, upon satisfaction or waiver of the conditions
precedent specified in Section 5.3, be deposited by the Administrative Agent,
in immediately available Dollars, in the Bank Proceeds Account no later than
2:00 P.M., New York City time, on the applicable Borrowing Date. The
Disbursement Agent shall then make the proceeds of such Loans available to the
Borrower in accordance with and upon fulfillment of the relevant conditions
set forth in the Disbursement Agreement.
(d) Each borrowing under the Term Loan Commitments or the
Revolving Credit Commitments shall be in an amount equal to (x) in the case of
Base Rate Loans other than Base Rate Loans that are borrowed pursuant to
Section 2.5(c), $5,000,000 or a whole multiple in excess thereof (or, if the
then aggregate Available Term Loan Commitments or Available Revolving Credit
Commitments, as applicable, are less than $5,000,000 or a whole multiple in
excess thereof, such lesser amount) and (y) in the case of Eurodollar Loans,
$10,000,000 or a $1,000,000 whole multiple in excess thereof; provided, that
the Swing Line Lender may request, on behalf of the Borrower, borrowings under
the Revolving Credit Commitments which are Base Rate Loans in other amounts
pursuant to Section 2.7. In the event the Borrower is unable to borrow an
amount of Loans requested in any Notice of Advance Request and related Advance
Confirmation Notice pursuant to subsection (a) above due to the limitations of
this subsection, such request for Loans shall be deemed to be in an amount
equal to the next higher minimum amount of Loans (of the same Type as those
originally requested) otherwise permitted to be drawn under this subsection.
(e) In the event that the proceeds of any Loans deposited
into the Disbursement Account or the Bank Proceeds Account pursuant to
subsections (a) or (c) above are not disbursed by the Disbursement Agent on
the applicable Borrowing Date, the proceeds of such Loans shall be held by the
Disbursement Agent in accordance with the provisions set forth in the
Disbursement Agreement; provided, however, that the proceeds of such Loans
shall continue to bear interest and be repayable in accordance with the
provisions set forth in this Agreement. In the event that the Administrative
Agent receives a Stop Funding Notice from the Disbursement Agent in accordance
with and pursuant to the terms of the Disbursement Agreement, none of the
Administrative Agent and the Lenders shall, or shall have any obligation to,
advance the Loans associated with such Stop Funding Notice; provided, however,
that the Borrower shall be obligated to make any payments due pursuant to
Section 2.21 as a result thereof. The Administrative Agent shall notify each
relevant Lender promptly upon receipt of any Stop Funding Notice, but shall
bear no liability to any Lender if, despite the receipt of such Stop Funding
Notice, any Lender makes available any money to the Administrative Agent in
respect of the requested Loans. In such event, the Administrative Agent shall
refund the amount received by it as promptly as possible and in any event by
the following Business Day.
2.6 Swing Line Commitment. Subject to the terms and
conditions hereof, the Swing Line Lender agrees to make available to the
Borrower a portion of the credit otherwise available to the Borrower under the
Revolving Credit Commitments from time to time during the Swing Line Credit
Commitment Period by making swing line loans ("Swing Line Loans") to the
Borrower; provided, that (a) the aggregate principal amount of Swing Line
Loans outstanding at any time shall not exceed the Swing Line Commitment then
in effect (notwithstanding that the Swing Line Loans outstanding at any time,
when aggregated with the Swing Line Lender's other outstanding Revolving
Credit Loans hereunder, may exceed the Swing Line Commitment then in effect)
and (b) the Borrower shall not request, and the Swing Line Lender shall not
make, any Swing Line Loan if, after giving effect to the making of such Swing
Line Loan, the aggregate amount of the Available Revolving Credit Commitments
would be less than zero. During the Swing Line Credit Commitment Period, the
Borrower may use the Swing Line Commitment by borrowing, repaying and
reborrowing, all in accordance with the terms and conditions hereof. Swing
Line Loans shall be Base Rate Loans only. The Borrower may at any time and
from time to time prepay all or any portion of the outstanding Swing Line
Loans in accordance with Section 2.11.
2.7 Procedure for Swing Line Borrowing; Refunding of Swing
Line Loans. (a) Whenever the Borrower desires that the Swing Line Lender make
Swing Line Loans (the proceeds of which shall be used for purposes permitted
hereby other than the payment of Project Costs or an Investment in the Macau
Loan), it shall give the Swing Line Lender irrevocable telephonic notice
confirmed promptly in writing (which telephonic notice must be received by the
Swing Line Lender not later than 1:00 P.M., New York City time, on the
proposed Borrowing Date), specifying (i) the amount to be borrowed and (ii)
the requested Borrowing Date. Each borrowing under the Swing Line Commitment
shall be in an amount equal to $500,000 or a $100,000 multiple in excess
thereof. Not later than 3:00 P.M., New York City time, on the Borrowing Date
specified in a notice in respect of Swing Line Loans, the Swing Line Lender
shall make available to the Administrative Agent at the Funding Office an
amount in immediately available funds equal to the amount of the Swing Line
Loan to be made by the Swing Line Lender; provided, that the Swing Line Lender
shall not be obligated to make any Swing Line Loans at a time when a Lender
Default exists unless the Swing Line Lender has entered into arrangements
satisfactory to it to eliminate the Swing Line Lender's risk with respect to
the Defaulting Lender's or Lenders' participation in such Swing Line Loans.
The Administrative Agent shall make the proceeds of such Swing Line Loan
available in immediately available Dollars to the Borrower on such Borrowing
Date by depositing such proceeds in a Funding Account of the Borrower with the
Administrative Agent on such Borrowing Date.
(b) The Swing Line Lender, at any time and from time to time
in its sole and absolute discretion may, on behalf of the Borrower (which
hereby irrevocably directs the Swing Line Lender to act on its behalf), on one
Business Day's notice given by the Swing Line Lender no later than 12:00 Noon,
New York City time, request each Revolving Credit Lender to make, and each
Revolving Credit Lender hereby agrees to make, a Revolving Credit Loan, in an
amount equal to such Revolving Credit Lender's Revolving Credit Percentage of
the aggregate amount of the Swing Line Loans (the "Refunded Swing Line Loans")
outstanding on the date of such notice, to repay the Swing Line Lender. The
Swing Line Lender shall notify the Borrower of any such request as soon as is
reasonably practicable. Each Revolving Credit Lender shall make the amount of
such Revolving Credit Loan available to the Administrative Agent at the
Funding Office in immediately available funds, not later than 10:00 A.M., New
York City time, one Business Day after the date of such notice. The proceeds
of such Revolving Credit Loans shall be immediately made available by the
Administrative Agent to the Swing Line Lender for application by the Swing
Line Lender to the repayment of the Refunded Swing Line Loans. The Borrower
irrevocably authorizes the Swing Line Lender to charge the Borrower's accounts
with the Administrative Agent (up to the amount available in each such
account) in order to immediately pay the amount of such Refunded Swing Line
Loans to the extent amounts received from the Revolving Credit Lenders are not
sufficient to repay in full such Refunded Swing Line Loans, and the
Administrative Agent shall provide the Borrower notice of any such action.
(c) If prior to the time a Revolving Credit Loan would have
otherwise been made pursuant to Section 2.7(b), one of the events described in
Section 8(f) shall have occurred and be continuing with respect to the
Borrower or if for any other reason, as determined by the Swing Line Lender in
its sole discretion, Revolving Credit Loans may not be made as contemplated by
Section 2.7(b), each Revolving Credit Lender shall, on the date such Revolving
Credit Loan was to have been made pursuant to the notice referred to in
Section 2.7(b) (the "Refunding Date"), purchase for cash an undivided
participating interest in the then outstanding Swing Line Loans by paying to
the Swing Line Lender an amount (the "Swing Line Participation Amount") equal
to (i) such Revolving Credit Lender's Revolving Credit Percentage times (ii)
the sum of the aggregate principal amount of Swing Line Loans then outstanding
which were to have been repaid with such Revolving Credit Loans.
(d) Whenever, at any time after the Swing Line Lender has
received from any Revolving Credit Lender such Lender's Swing Line
Participation Amount, the Swing Line Lender receives any payment on account of
the Swing Line Loans, the Swing Line Lender will distribute to such Revolving
Credit Lender its Swing Line Participation Amount (appropriately adjusted, in
the case of interest payments, to reflect the period of time during which such
Revolving Credit Lender's participating interest was outstanding and funded
and, in the case of principal and interest payments, to reflect such Revolving
Credit Lender's pro rata portion of such payment if such payment is not
sufficient to pay the principal of and interest on all Swing Line Loans then
due); provided, however, that in the event that such payment received by the
Swing Line Lender is required to be returned, such Revolving Credit Lender
will return to the Swing Line Lender any portion thereof previously
distributed to it by the Swing Line Lender.
(e) Each Revolving Credit Lender's obligation to make the
Loans referred to in Section 2.7(b) and to purchase participating interests
pursuant to Section 2.7(c) shall be absolute and unconditional and shall not
be affected by any circumstance, including, without limitation, (i) any
setoff, counterclaim, recoupment, defense or other right which such Revolving
Credit Lender or the Borrower may have against the Swing Line Lender, the
Borrower or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default or an Event of Default or the failure to satisfy any
of the other conditions specified in Section 5; (iii) any adverse change in
the condition (financial or otherwise) of the Borrower or any other Person;
(iv) any breach of this Agreement or any other Loan Document by the Borrower
or any other Person (including, without limitation, any other Revolving Credit
Lender); (v) any reduction or termination of the Commitments; or (vi) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing, and each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
2.8 Repayment of Loans; Evidence of Indebtedness. (a) The
Borrower hereby unconditionally promises to pay to the Administrative Agent
for the account of the Swing Line Lender, the appropriate Revolving Credit
Lender or the appropriate Term Loan Lender, as the case may be, (i) the then
unpaid principal amount of each Revolving Credit Loan of such Revolving Credit
Lender on the Revolving Credit Termination Date, (ii) the then unpaid
principal amount of each Swing Line Loan of the Swing Line Lender on the
Revolving Credit Termination Date and (iii) the principal amount of each Term
Loan of such Term Loan Lender in installments according to the amortization
schedule set forth in Section 2.2 and the then unpaid principal amount of each
Term Loan of such Term Loan Lender on the Term Loan Termination Date. The
Borrower hereby further agrees to pay interest on the unpaid principal amount
of the Loans from time to time outstanding from the date hereof until payment
in full thereof at the rates per annum, and on the dates, set forth in Section
2.15.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to
such Lender resulting from each Loan of such Lender from time to time,
including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.
(c) The Administrative Agent, on behalf of the Borrower,
shall maintain the Register pursuant to Section 10.6(d), and a subaccount
therein for each Lender, in which shall be recorded (i) the amount of each
Loan made hereunder and any Note evidencing such Loan, the Type thereof and
each Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to
each Lender hereunder and (iii) both the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(d) The entries made in the Register and the accounts of
each Lender maintained pursuant to Section 2.8(b) shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Borrower therein recorded in the absence of
manifest error; provided, however, that the failure of any Lender or the
Administrative Agent to maintain the Register or any such account, or any
error therein, shall not in any manner affect the obligation of the Borrower
to repay (with applicable interest) the Loans made to such Borrower by such
Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing any Term Loans,
Revolving Credit Loans or Swing Line Loans, as the case may be, of such
Lender, substantially in the forms of Exhibit G-1, G-2 or G-3 hereto,
respectively, with appropriate insertions as to date and principal amount
(such notes, respectively, "Term Notes", "Revolving Credit Notes" and "Swing
Line Notes").
2.9 Commitment Fees, etc. (a) The Borrower agrees to pay to
the Administrative Agent for the account of each Revolving Credit Lender a
commitment fee (the "Revolving Commitment Fee") for the period from and
including the Closing Date to the last day of the Revolving Credit Commitment
Period, computed at the Revolving Commitment Fee Rate on the average daily
amount of the Available Revolving Credit Commitment of such Lender during the
period for which payment is made, payable quarterly in arrears on the last day
of each March, June, September and December and on the Revolving Credit
Termination Date, commencing on the first of such dates to occur after the
date hereof; provided, however, that any Revolving Commitment Fee accrued with
respect to any of the Commitments of a Defaulting Lender during the period
prior to the time such Lender became a Defaulting Lender and unpaid at such
time shall not be payable by the Borrower so long as such Lender shall be a
Defaulting Lender, except to the extent that such Revolving Commitment Fee
shall otherwise have been due and payable by the Borrower prior to such time;
provided, further, that no such Revolving Commitment Fee shall accrue on any
of the Commitments of a Defaulting Lender so long as such Lender shall be a
Defaulting Lender.
(b) The Borrower agrees to pay to the Administrative Agent
for the account of each Term Loan Lender a commitment fee for the period from
and including the Closing Date to the last day of the Term Loan Commitment
Period, computed at the Term Loan Commitment Fee Rate on the average daily
amount of the Available Term Loan Commitment of such Lender during the period
for which payment is made, payable quarterly in arrears on the last day of
each March, June, September and December and on the last day of the Term Loan
Commitment Period, commencing on the first of such dates to occur after the
date hereof; provided, however, that any such commitment fee accrued with
respect to any of the Commitments of a Defaulting Lender during the period
prior to the time such Lender became a Defaulting Lender and unpaid at such
time shall not be payable by the Borrower so long as such Lender shall be a
Defaulting Lender, except to the extent that such commitment fee shall
otherwise have been due and payable by the Borrower prior to such time;
provided, further, that no such commitment fee shall accrue on any of the
Commitments of a Defaulting Lender so long as such Lender shall be a
Defaulting Lender.
(c) The Borrower agrees to pay to the Arrangers, the
Managers and the Agents the fees in the amounts and on the dates previously
agreed to in writing by the Borrower, the Arrangers, the Managers and the
Agents including, without limitation, pursuant to the Facility Fee Letter.
(d) The Borrower agrees to pay to the Administrative Agent
the fees in the amounts and on the dates from time to time agreed to in
writing by the Borrower and the Administrative Agent including, without
limitation, pursuant to the Administrative Agent Fee Letter.
2.10 Termination or Reduction of Revolving Credit
Commitments. The Borrower shall have the right, upon not less than three
Business Days' notice to the Administrative Agent, to terminate the Revolving
Credit Commitments or, from time to time, to reduce the amount of the
Revolving Credit Commitments; provided, that no such termination or reduction
of Revolving Credit Commitments shall be permitted if after giving effect
thereto and to any prepayments of the Revolving Credit Loans and Swing Line
Loans made on the effective date thereof (a) the Total Revolving Extensions of
Credit would exceed the Total Revolving Credit Commitments or (b) if prior to
the Phase I Final Completion Date or, if the Phase II Approval Date shall have
occurred, the Phase II Final Completion Date, the Project shall not be In
Balance. Any such reduction shall be in an amount equal to $5,000,000, or a
whole multiple thereof (or, if less, shall reduce the Revolving Credit
Commitments to zero), and shall reduce permanently the Revolving Credit
Commitments then in effect. The Borrower shall not reduce the amount of the
Term Loan Commitments.
2.11 Optional Prepayments. The Borrower may at any time and
from time to time prepay the Loans, in whole or in part, without premium or
penalty, upon irrevocable notice delivered to the Administrative Agent at
least three Business Days prior thereto in the case of Eurodollar Loans and at
least one Business Day prior thereto in the case of Base Rate Loans, which
notice shall (i) designate whether the Borrower is prepaying Revolving Credit
Loans and/or Term Loans and (ii) specify the date and amount of prepayment and
whether the prepayment is of Eurodollar Loans or Base Rate Loans; provided,
that if a Eurodollar Loan is prepaid on any day other than the last day of the
Interest Period applicable thereto, the Borrower shall also pay any amounts
owing pursuant to Section 2.21. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof. If
any such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with (except in the case of
Revolving Credit Loans (unless all Revolving Credit Loans are being repaid and
the Revolving Credit Commitments terminated) that are Base Rate Loans and
Swing Line Loans) accrued interest to such date on the amount prepaid. Partial
prepayments of Term Loans and Revolving Credit Loans shall be in an aggregate
principal amount of $5,000,000 or a whole multiple in excess thereof. Partial
prepayments of Swing Line Loans shall be in an aggregate principal amount of
$100,000 or a whole multiple in excess thereof.
2.12 Mandatory Prepayments and Commitment Reductions. (a) If
any Indebtedness shall be incurred by the Borrower or any of the other Loan
Parties (excluding any Indebtedness permitted by Section 7.2 (other than with
respect to subsection (i) thereof)), an amount equal to 100% of the Net Cash
Proceeds thereof shall be applied within one Business Day of receipt by such
Person of such Net Cash Proceeds toward the prepayment of the Obligations in
accordance with Section 2.12(g).
(b) (i) With respect to the Net Cash Proceeds from any Asset
Sale as to which the Borrower or any other Loan Party making such
Asset Sale has not delivered a Reinvestment Notice within the period
required therefor in the definition thereof, the Facility
Proportionate Share of such Net Cash Proceeds (or portion thereof not
subject to such a Reinvestment Notice) shall be applied, within two
Business Days of the expiration of the aforesaid required period for
delivery of a Reinvestment Notice with respect to such Asset Sale,
toward the prepayment of the Obligations in accordance with Section
2.12(g); provided, that, notwithstanding the foregoing, (i) the
aggregate Net Cash Proceeds of Asset Sales that may be excluded from
the foregoing prepayment requirement pursuant to a Reinvestment
Notice shall not exceed $25,000,000 in any Fiscal Year and (ii) on
each Reinvestment Prepayment Date, an amount equal to the Facility
Proportionate Share of the Reinvestment Prepayment Amount with
respect to the relevant Reinvestment Event shall be applied toward
the prepayment of the Obligations in accordance with Section 2.12(g).
(ii) With respect to the Net Cash Proceeds from any
Disposition of Property (other than any Asset Sale with respect to
which a prepayment is required to be made pursuant to Section
2.12(b)(i)) that are required pursuant to the terms of any First Lien
Secured Obligations to be applied to (or offered to be applied to)
the repayment of any First Lien Secured Obligations (in the event any
such repaid First Lien Secured Obligations constitute a revolving
credit facility, accompanied by a permanent reduction of commitments
under such revolving credit facility in the amount of such
repayment), the Facility Proportionate Share of such Net Cash
Proceeds shall be applied, within one Business Day of the date any of
such Net Cash Proceeds are required to be so applied (or offered to
be so applied) to any First Lien Secured Indebtedness, toward the
prepayment of the Obligations in accordance with Section 2.12(g).
(iii) In the event any Net Cash Proceeds from any
Asset Sale are not applied toward the prepayment of the Obligations
pursuant to Section 2.12(b)(i) as a result of not being deemed part
of the "Facility Proportionate Share" of such Net Cash Proceeds and
such amounts are not applied to the prepayment and permanent
reduction of First Lien Secured Obligations for any reason whatsoever
(including the failure of any holder of such First Lien Secured
Obligations to accept an offer of prepayment) within 60 days of the
application of the Facility Proportionate Share of such Net Cash
Proceeds toward the prepayment of the Obligations pursuant to Section
2.12(b)(i), then such amounts shall, on the last day of such 60-day
period, be applied toward the prepayment of the Obligations in
accordance with Section 2.12(g).
(c) No later than (i) two Business Days following the date
on which Loss Proceeds are required to be applied to the prepayment of
Obligations under Section 5.14 of the Disbursement Agreement, (ii) two
Business Days following the date on which Insurance Proceeds and/or Eminent
Domain Proceeds are required to be applied to the prepayment of the
Obligations pursuant to Section 2.24 or (iii) unless the Disbursement
Agreement provides for the deposit of such funds in the Company's Funds
Account (in which case the Disbursement Agreement shall control), two Business
Days following the date on which any Loan Party receives Liquidated Damages
(provided, that to the extent such Liquidated Damages are paid pursuant to any
obligation, default or breach, the results of which can be remedied through
the expenditure of money, and the applicable Loan Party determines in its
reasonable judgment to undertake such remedy, the Liquidated Damages subject
to this subsection (iii) shall be net of reasonable amounts that such Loan
Party anticipates to incur in connection with such remedy (such amounts, the
"Reinvested Amounts"); provided, further, that in the event such Loan Party
has not expended any Reinvested Amounts in furtherance of such remedy by the
date that is six months after a Loan Party initially received the relevant
Liquidated Damages or, in the case of any Reinvested Amounts to be expended in
furtherance of such remedy pursuant to a contract entered into during such
six-month period, such amounts have not been expended by the date that is
twelve months after a Loan Party initially received the relevant Liquidated
Damages, such non-expended amounts shall be applied on the second Business Day
following such sixth-month or twelve-month, as the case may be, anniversary
date toward the prepayment of the Obligations in accordance with Section
2.12(g)), the Borrower shall apply such funds toward the prepayment of the
Obligations in accordance with Section 2.12(g).
(d) If, for any Fiscal Year commencing with the Relevant
Fiscal Year, there shall be Excess Cash Flow, the Borrower shall, and shall
cause the applicable Loan Parties to, on the relevant Excess Cash Flow
Application Date, apply the ECF Percentage of such Excess Cash Flow toward the
prepayment of the Obligations in accordance with Section 2.12(g). Each such
prepayment and commitment reduction shall be made on a date (an "Excess Cash
Flow Application Date") no later than five Business Days after the earlier of
(i) the date on which the financial statements of the Loan Parties referred to
in Section 6.1(a), for the Fiscal Year with respect to which such prepayment
is made, are required to be delivered to the Lenders and (ii) the date such
financial statements are actually delivered.
(e) If the Phase II Approval Date has not occurred on or
prior to the Phase II Commitment Sunset Date, on the Phase II Commitment
Sunset Date the Borrower shall prepay the Obligations in accordance with
Section 2.12(g) in an aggregate principal amount of $550,000,000.
(f) If, on the last day of any period of two full
consecutive fiscal quarters of the Borrower, each such fiscal quarter
beginning after the Phase I Opening Date but in no event such day being
earlier than the later of (x) the Phase I Final Completion Date and (y)
December 31, 2005, the Consolidated EBITDA of the Borrower for such two full
consecutive fiscal quarter period was equal to or greater than $70,000,000 the
Borrower shall, so long as no Default or Event of Default shall have occurred
and be then continuing, apply any amounts then on deposit in the Project
Liquidity Reserve Account on the Liquidity Reserve Payment Date toward the
prepayment of the Obligations in accordance with Section 2.12(g).
(g) Subject to Section 2.18, amounts to be applied to the
prepayment of the Obligations pursuant to this Section 2.12 shall be applied
(i) in the case of Sections 2.12(a), 2.12(b), 2.12(c) and 2.12(d), first, to
the prepayment of the Term Loans, second, to reduce permanently the Revolving
Credit Commitments and, third, to the Borrower or such other Person as shall
be lawfully entitled thereto, (ii) in the case of Sections 2.12(e), to the
prepayment of the Term Loans and to reduce permanently the Revolving Credit
Commitments in such respective amounts as the Borrower may elect and (iii) in
the case of Section 2.12(f), first, to the prepayment of Revolving Credit
Loans (without any permanent reduction of Revolving Credit Commitments),
second, to the prepayment of Term Loans, and third, to the Borrower or such
other Person as shall be lawfully entitled thereto. Any reduction of the
Revolving Credit Commitments in accordance with the foregoing shall be
accompanied by prepayment of the Revolving Credit Loans and/or Swing Line
Loans to the extent, if any, that the Total Revolving Extensions of Credit
exceed the amount of the Total Revolving Credit Commitments as so reduced,
provided that if the aggregate principal amount of Revolving Credit Loans and
Swing Line Loans then outstanding is less than the amount of the Total
Revolving Credit Commitments as so reduced (because L/C Obligations constitute
a portion thereof), the Borrower shall, to the extent of the balance of such
excess, replace outstanding Letters of Credit and/or deposit an amount in
immediately available funds in a cash collateral account established with the
Administrative Agent for the benefit of the Secured Parties on terms and
conditions satisfactory to the Administrative Agent (and the Borrower hereby
grants to the Administrative Agent, for the ratable benefit of the Secured
Parties, a continuing first priority security interest (subject to no other
Liens) in all amounts at any time on deposit in such cash collateral account
to secure all L/C Obligations from time to time outstanding and all other
Obligations). If at any time the Administrative Agent determines that any
funds held in such cash collateral account are subject to any right or claim
of any Person other than the Administrative Agent and the Secured Parties or
that the total amount of such funds is less than the amount of such excess,
the Borrower shall, forthwith upon demand by the Administrative Agent, pay to
the Administrative Agent, as additional funds to be deposited and held in such
cash collateral account, an amount equal to the excess of (a) the amount of
such excess over (b) the total amount of funds, if any, then held in such cash
collateral account that the Administrative Agent determines to be free and
clear of any such right and claim. The application of any prepayment pursuant
to Section 2.11 and this Section 2.12 shall be made, first, to Base Rate Loans
and, second, to Eurodollar Loans. Each prepayment of the Loans under Section
2.11 and this Section 2.12 (except in the case of Revolving Credit Loans
(unless the Revolving Credit Loans are being repaid in full and the Revolving
Credit Commitments terminated) that are Base Rate Loans and Swing Line Loans)
shall be accompanied by accrued interest to the date of such prepayment to the
applicable Lender on the amount prepaid.
2.13 Conversion and Continuation Options. (a) The Borrower
may elect from time to time to convert Eurodollar Loans to Base Rate Loans by
giving the Administrative Agent at least two Business Days' prior irrevocable
notice of such election (which notice may be given by telephone confirmed
promptly in writing), provided that any such conversion of Eurodollar Loans
may only be made on the last day of an Interest Period with respect thereto.
Other than with respect to Swing Line Loans which shall at all times be Base
Rate Loans, the Borrower may elect from time to time to convert Base Rate
Loans to Eurodollar Loans by giving the Administrative Agent at least three
Business Days' prior irrevocable notice of such election (which notice shall
specify the length of the initial Interest Period therefore and may be given
by telephone confirmed promptly in writing), provided that no Base Rate Loan
under a particular Facility may be converted into a Eurodollar Loan (i) when
any Event of Default has occurred and is continuing and the Administrative
Agent or the Required Facility Lenders in respect of such Facility have
determined in its or their sole discretion not to permit such conversions or
(ii) after the date that is one month prior to the final scheduled termination
or maturity date of such Facility. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the Administrative Agent (which notice
may be given by telephone confirmed promptly in writing), in accordance with
the applicable provisions of the term "Interest Period" set forth in Section
1.1, of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan under a particular Facility may be continued
as such (i) when any Event of Default has occurred and is continuing and the
Administrative Agent has or the Required Facility Lenders in respect of such
Facility have determined in its or their sole discretion not to permit such
continuations or (ii) after the date that is one month prior to the final
scheduled termination or maturity date of such Facility, and provided,
further, that if the Borrower shall fail to give any required notice as
described above in this paragraph or if such continuation is not permitted
pursuant to the preceding proviso such Loans shall be automatically converted
to Base Rate Loans on the last day of such then expiring Interest Period. Upon
receipt of any such notice the Administrative Agent shall promptly notify each
relevant Lender thereof.
2.14 Minimum Amounts and Maximum Number of Eurodollar
Tranches. Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations and optional prepayments of Eurodollar
Loans hereunder and all selections of Interest Periods hereunder shall be in
such amounts and be made pursuant to such elections so that (a) after giving
effect thereto, the aggregate principal amount of the Eurodollar Loans
comprising each Eurodollar Tranche shall be equal to $5,000,000 or a whole
multiple of $1,000,000 in excess thereof and (b) no more than ten Eurodollar
Tranches shall be outstanding at any one time.
2.15 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
day plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any
Loan or Reimbursement Obligation shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise) or an Event of Default has
otherwise occurred and is continuing, all outstanding Loans and Reimbursement
Obligations (whether or not overdue) shall bear interest at a rate per annum
that is equal to (x) in the case of the Loans, the rate that would otherwise
be applicable thereto pursuant to the foregoing provisions of this Section
plus 2.0% or (y) in the case of Reimbursement Obligations, the rate applicable
to Base Rate Loans under the Revolving Credit Facility plus 2.0% and (ii) if
all or a portion of any interest payable on any Loan or Reimbursement
Obligation or any commitment fee or other amount payable hereunder (in
accordance with Section 2.9 or otherwise) shall not be paid when due (whether
at the stated maturity, by acceleration or otherwise), such overdue amount
shall bear interest at a rate per annum equal to the rate then applicable to
Base Rate Loans under the relevant Facility plus 2.0% (or, in the case of any
such other amounts that do not relate to a particular Facility, the rate then
applicable to Base Rate Loans under the Revolving Credit Facility plus 2.0%),
in each case, with respect to subsections (i) and (ii) above, from the date of
such non-payment until such amount is paid in full (after as well as before
judgment) or so long as such Event of Default is continuing.
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of
this Section shall be payable from time to time on demand.
2.16 Computation of Interest and Fees. (a) Interest, fees
and commissions payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to Base
Rate Loans the rate of interest on which is calculated on the basis of the
Prime Rate, the interest thereon shall be calculated on the basis of a 365-day
year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of each determination
of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from
a change in the Base Rate or the Eurocurrency Reserve Requirements shall
become effective as of the opening of business on the day on which such change
becomes effective. The Administrative Agent shall as soon as practicable
notify the Borrower and the relevant Lenders of the effective date and the
amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the
Borrower, deliver to the Borrower a statement showing the quotations, if any,
used by the Administrative Agent in determining any interest rate pursuant to
Section 2.15(a).
2.17 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for such Interest
Period, or
(b) the Administrative Agent shall have received notice from
the Applicable Facility Lenders in respect of the relevant Facility that the
Eurodollar Rate determined or to be determined for such Interest Period will
not adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining their affected Loans
during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to
the Borrower and the relevant Lenders as soon as practicable thereafter. If
such notice is given (x) any Eurodollar Loans under the relevant Facility
requested to be made on the first day of such Interest Period shall be made as
Base Rate Loans, (y) any Loans under the relevant Facility that were to have
been converted on the first day of such Interest Period to Eurodollar Loans
shall be continued as Base Rate Loans and (z) any outstanding Eurodollar Loans
under the relevant Facility shall be converted, on the last day of the then
current Interest Period with respect thereto, to Base Rate Loans. Until such
notice has been withdrawn by the Administrative Agent, no further Eurodollar
Loans under the relevant Facility shall be made or continued as such, nor
shall the Borrower have the right to convert Loans under the relevant Facility
to Eurodollar Loans. If the Borrower receives such notice from the
Administrative Agent prior to the first day of an Interest Period with respect
to new Loans to be made on such day, the Borrower shall have the right to
withdraw such related Notice of Borrowing and have no liability under Section
2.21.
2.18 Pro Rata Treatment and Payments. (a) Each borrowing by
the Borrower from the Lenders hereunder, each payment by the Borrower on
account of any commitment fee and any reduction of the Commitments of the
Lenders shall be made pro rata according to the respective Term Loan
Percentages or Revolving Credit Percentages, as the case may be, of the
relevant Lenders. Subject to Section 2.18(c), each payment (other than
prepayments) in respect of principal or interest in respect of the Loans, and
each payment in respect of fees or expenses payable hereunder shall be applied
to the amounts of such obligations owing to the Lenders pro rata according to
the respective amounts then due and owing to the Lenders. The application of
any mandatory prepayment pursuant to this Section 2.18 shall be made, first,
to Base Rate Loans and, second, to Eurodollar Loans.
(b) Each payment (including each prepayment) of Term Loans
shall be allocated among the Term Loan Lenders holding such Term Loans pro
rata based on the principal amount of such Term Loans held by such Term Loan
Lenders, and shall be applied to the installments of such Term Loans (provided
that the final payment of Term Loans on the Term Loan Termination Date shall
be treated as an "installment" for purposes of this subsection (b)) pro rata
based on the remaining outstanding principal amount of such installments.
Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on the Revolving Credit Loans shall be
made pro rata according to the respective outstanding principal amounts of the
Revolving Credit Loans then held by the Revolving Credit Lenders. Each payment
in respect of Reimbursement Obligations in connection with any Letter of
Credit shall be made to the Issuing Lender.
(d) Subject to Section 2.20, all payments (including
prepayments) to be made by the Borrower hereunder, whether on account of
principal, interest, fees or otherwise, shall be made without setoff or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the
due date thereof to the Administrative Agent, for the account of the Lenders,
at the Payment Office, in Dollars and in immediately available funds. The
Administrative Agent shall distribute such payments to the Lenders promptly
upon receipt in like funds as received. If any payment hereunder (other than
payments on the Eurodollar Loans) becomes due and payable on a day other than
a Business Day, such payment shall be extended to the next succeeding Business
Day. If any payment on a Eurodollar Loan becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day. In the case of any extension
of any payment of principal pursuant to the preceding two sentences, interest
thereon shall be payable at the then applicable rate during such extension.
(e) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make
the amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to
the Administrative Agent by the required time on the Borrowing Date therefor,
such Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available
to the Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this paragraph
shall be conclusive in the absence of manifest error. If such Lender's share
of such borrowing is not made available to the Administrative Agent by such
Lender within three Business Days of such Borrowing Date, the Administrative
Agent shall also be entitled to recover such amount with interest thereon at
the rate per annum applicable to Base Rate Loans under the relevant Facility,
on demand, from the Borrower.
(f) Unless the Administrative Agent shall have been notified
in writing by the Borrower prior to the date of any payment being made
hereunder that the Borrower will not make such payment to the Administrative
Agent, the Administrative Agent may assume that the Borrower is making such
payment, and the Administrative Agent may, but shall not be required to, in
reliance upon such assumption, make available to the Lenders their respective
pro rata shares of a corresponding amount. If such payment is not made to the
Administrative Agent by the Borrower within three Business Days of such
required date, the Administrative Agent shall be entitled to recover, on
demand, from each Lender to which any amount which was made available pursuant
to the preceding sentence, such amount with interest thereon at the rate per
annum equal to the daily average Federal Funds Effective Rate. Nothing herein
shall be deemed to limit the rights of the Administrative Agent or any Lender
against the Borrower.
2.19 Requirements of Law. (a) Subject to the provisions of
Section 2.20 (which shall be controlling with respect to the matters covered
thereby), if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority made subsequent to the date hereof:
(i) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender that is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(ii) shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting
into, continuing or maintaining Eurodollar Loans or issuing or participating
in Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, upon receipt by the Borrower of the notice
described in the last sentence of this paragraph, the Borrower shall promptly
pay such Lender any additional amounts necessary to compensate such Lender on
an after-tax basis for such increased cost or reduced amount receivable;
provided, that the Borrower shall not be required to compensate a Lender
pursuant to this subsection (a) for any increased costs or reduced amounts
receivable from more than six months prior to the date on which such Lender
notified the Borrower of such Lender's intention to claim compensation
therefor; provided, further, that, if the circumstances giving rise to such
claim have a retroactive effect, then such six-month period shall be extended
to include the period of such retroactive effect. If any Lender becomes
entitled to claim any additional amounts pursuant to this Section, it shall
promptly notify the Borrower in writing (with a copy to the Administrative
Agent) of the event by reason of which it has become so entitled, and setting
forth in such notice, in reasonable detail, the basis and calculation of such
amounts.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof shall have the
effect of reducing the rate of return on such Lender's or such corporation's
capital as a consequence of its obligations hereunder or under or in respect
of any Letter of Credit to a level below that which such Lender or such
corporation could have achieved but for such adoption, change or compliance
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender to be
material, then from time to time, after submission by such Lender to the
Borrower (with a copy to the Administrative Agent) of a written request
therefor (which request shall set forth, in reasonable detail, the basis and
calculation of the additional amounts sought), the Borrower shall pay to such
Lender such additional amount or amounts as set forth in the aforesaid notice;
provided, that the Borrower shall not be required to compensate a Lender
pursuant to this subsection (b) for any amounts incurred more than six months
prior to the date on which such Lender notified the Borrower of such Lender's
intention to claim compensation therefor; provided, further, that, if the
circumstances giving rise to such claim have a retroactive effect, then such
six-month period shall be extended to include the period of such retroactive
effect.
(c) A certificate as to any additional amounts payable
pursuant to this Section submitted by any Lender to the Borrower (with a copy
to the Administrative Agent) and setting forth, in reasonable detail, the
basis and calculation of such amounts shall be conclusive in the absence of
manifest error. The obligations of the Borrower pursuant to this Section shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.20 Taxes. (a) All payments made by the Borrower or any
Guarantor under this Agreement or any other Loan Document shall be made free
and clear of, and without deduction or withholding for or on account of, any
present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, other than
Excluded Taxes (collectively, the "Non-Excluded Taxes"). If any such
Non-Excluded Taxes are required to be withheld from any amounts payable to any
Arranger, any Agent, any Manager or any Lender hereunder, the amounts so
payable to such Arranger, such Agent, such Manager or such Lender shall be
increased to the extent necessary to yield to such Arranger, such Agent, such
Manager or such Lender (after payment of all Non-Excluded Taxes) interest or
any such other amounts that would have been received hereunder or under any
other Loan Document had such withholding not been required; provided, however,
that neither the Borrower nor a Guarantor shall be required to increase any
such amounts payable to any Arranger, any Agent, any Manager or any Lender
with respect to any Non-Excluded Taxes (i) that are attributable to such
Arranger's, such Agent's, such Manager's or such Lender's failure to comply
with the requirements of subsection (f) or (g) of this Section 2.20, or (ii)
that are withholding taxes imposed on amounts payable to such Arranger, such
Agent, such Manager or such Lender at the time such Arranger, such Agent, such
Manager or such Lender becomes a party to this Agreement. The Borrower or the
applicable Guarantor shall make any such required withholding and pay the full
amount withheld to the relevant tax authority or other Governmental Authority
in accordance with applicable Requirements of Law.
(b) If any Arranger, Agent, Manager or Lender, as
applicable, receives a refund, credit or other tax benefit for which a payment
has been made by the Borrower or any Guarantor pursuant to this Section 2.20,
which refund, credit or other tax benefit in the good faith judgment of such
Arranger, Agent, Manager or Lender, as the case may be, is attributable to
such payment made by the Borrower or such Guarantor, then such Arranger,
Agent, Manager or Lender, as the case may be, shall reimburse the Borrower or
such Guarantor for such amount as such Arranger, Agent, Manager or Lender, as
the case may be, determines in good faith to be the proportion of the refund,
credit or other tax benefit as will leave it, after such reimbursement, in the
same position it would have been in if the payment of such tax and any payment
by the Borrower or such Guarantor under this Section 2.20 had not been made.
In addition, upon the Borrower's reasonable request each Arranger, Agent,
Manager and Lender, as applicable, shall use its reasonable efforts to pursue
any available refund, credit or other tax benefit that, in the reasonable and
good faith determination of such Arranger, Agent, Manager or Lender, as
applicable, is attributable to any tax with respect to which the Borrower or
any Guarantor has made a payment pursuant to this Agreement, and shall remit
immediately available funds to the Borrower in an amount equal to any such
refund, credit or other tax benefit (including any interest received thereon).
(c) Subject to subsection (f) below, the Borrower shall
indemnify each Arranger, each Agent, each Manager and any Lender for the full
amount of Non-Excluded Taxes to the extent payable but not paid by the
Borrower or any Guarantor pursuant to Section 2.20(a) and paid by such
Arranger, Agent, Manager or Lender or any of their respective Affiliates
(including, without limitation, any Non-Excluded Taxes imposed by any
Governmental Authority on amounts payable under Section 2.20(a) or this
Section 2.20(c) and any penalties, additions to tax interest and related
expenses attributable to such Non-Excluded Taxes). Payment under this
indemnification shall be made within ten (10) Business Days from the date any
Arranger, any Agent, any Manager or any Lender or any of their respective
Affiliates makes written demand therefor, which demand shall set forth in
reasonable detail the basis and calculation of the amounts demanded. Any
Lender (or Transferee) claiming any indemnity payment or additional amounts
payable pursuant to Section 2.20(a) shall use reasonable efforts (consistent
with legal and regulatory restrictions) to file any certificate or document
reasonably requested in writing by the Borrower or a Guarantor if the making
of such a filing would avoid the need for or reduce the amount of any such
indemnity payment or additional amounts that may thereafter accrue.
(d) Whenever any Non-Excluded Taxes are payable by the
Borrower or a Guarantor, as promptly as practicable thereafter the Borrower or
such Guarantor shall send to the Administrative Agent for the account of the
relevant Arranger, Agent, Manager or Lender, as the case may be, a certified
copy of an original official receipt received by the Borrower or such
Guarantor showing payment thereof.
(e) The agreements in this Section 2.20 shall survive the
termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
(f) Each Lender (or Transferee) that is not a U.S. Person
(as defined in Section 7701(a)(30) of the Code) (a "Non-U.S. Lender") shall
deliver to the Borrower and the Administrative Agent (and, in the case of a
Participant, to the Lender from which the related participation shall have
been purchased) two duly completed copies of either U.S. Internal Revenue
Service Form W-8BEN or Form W-8ECI (or any subsequent revisions thereof or
successors thereto), or, in the case of a Non-U.S. Lender claiming exemption
from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest," a Form W-8BEN and a
statement substantially in the form of Exhibit I hereto (or any subsequent
revisions thereof or successors thereto) to the effect that such Non-U.S.
Lender is eligible for a complete exemption from withholding of U.S. taxes
under Section 871(h) or 881(c) of the Code, or any subsequent versions of any
of the foregoing or successors thereto, properly completed and duly executed
by such Non-U.S. Lender claiming complete exemption from, or a reduced rate
of, U.S. federal withholding tax on all payments by the Borrower or any
Guarantor under this Agreement and the other Loan Documents. Such forms shall
be delivered by each Non-U.S. Lender on or before the date it becomes a party
to this Agreement (or, in the case of any Participant, on or before the date
such Participant purchases the related participation) and on or before the
date of the first payment to it following the date, if any, such Non-U.S.
Lender changes its applicable lending office pursuant to Section 2.23 hereof.
In addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). If a Non-U.S. Lender
is unable to deliver any form pursuant to this Section 2.20(f), such Non-U.S.
Lender shall be entitled to neither relief from withholding nor indemnity
hereunder with respect to Non-Excluded Taxes for the period that would have
been covered by such form, unless (i) such Non-U.S. Lender's inability to
deliver such form resulted from a change in law after the date on which such
Lender became a Lender hereunder or as a result of a change in the
circumstances of the Borrower or any Guarantor or the use of proceeds of such
Non-U.S. Lender's loans or (ii) such Non-U.S. Lender's assignor (if any) was
entitled, at the time of assignment, to the indemnity afforded hereunder.
Notwithstanding any other provision of this paragraph, a Non-U.S. Lender shall
not be required to deliver any form pursuant to this paragraph that such
Non-U.S. Lender is not legally entitled to deliver.
(g) Each Arranger, Agent, Manager and Lender that is
entitled to an exemption from non-U.S. withholding taxes under the law of the
jurisdiction in which the Borrower or a Guarantor is located, or any treaty to
which such jurisdiction is a party, with respect to payments under this
Agreement or any other Loan Document shall deliver to the Borrower and the
relevant Guarantor(s), as applicable (with a copy to the Administrative
Agent), at the time or times prescribed by applicable Requirements of Law or
reasonably requested by the Borrower or such Guarantor(s), such properly
completed and executed documentation prescribed by applicable Requirements of
Law as will permit such payments to be made without withholding; provided,
that such Arranger, Agent, Manager or Lender is legally entitled to complete,
execute and deliver such documentation and in such Person's judgment such
completion, execution or submission would not materially prejudice the legal
position of such Person.
(h) The Borrower and each Guarantor shall pay all
Non-Excluded Taxes to the relevant Governmental Authority in accordance with
applicable Requirements of Law.
2.21 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss (other than loss of anticipated
profits) or expense that such Lender may sustain or incur as a consequence of
(a) default by the Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement
(whether as a result of a Stop Funding Notice or otherwise) other than by
reason of Section 2.17 if the Administrative Agent gives notice to the
Borrower thereunder and the Borrower withdraws a Notice of Borrowing in
accordance with the last sentence of Section 2.17, (b) default by the Borrower
in making any prepayment after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making of a
prepayment or conversion of Eurodollar Loans on a day that is not the last day
of an Interest Period with respect thereto. Such indemnification may include
an amount equal to the excess, if any, of (i) the amount of interest that
would have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure
to borrow, convert or continue to the last day of such Interest Period (or, in
the case of a failure to borrow, convert or continue, the Interest Period that
would have commenced on the date of such failure) in each case at the
applicable rate of interest for such Loans provided for herein (excluding,
however, the Applicable Margin included therein, if any) over (ii) the amount
of interest (as reasonably determined by such Lender) that would have accrued
to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank eurodollar market. A
certificate as to any amounts payable pursuant to this Section submitted to
the Borrower by any Lender shall be conclusive in the absence of manifest
error. This covenant shall survive the termination of this Agreement and the
payment of the Loans and Letters of Credit and all other amounts payable
hereunder.
2.22 Illegality. Notwithstanding any other provision herein,
if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, then (a)
the commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert Base Rate Loans to Eurodollar Loans shall
forthwith be canceled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans
on the respective last days of the then current Interest Periods with respect
to such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of
the then current Interest Period with respect thereto, the Borrower shall pay
to such Lender such amounts, if any, as may be required pursuant to Section
2.21.
2.23 Change of Lending Office. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of Section 2.19, 2.20
or 2.22 with respect to such Lender, it will, if requested by the Borrower or
a Guarantor, use reasonable efforts (subject to overall policy considerations
of such Lender) to designate another lending office for any Loans affected by
such event with the object of reducing or avoiding the consequences of such
event; provided, that such designation is made on terms that, in the sole
judgment of such Lender, cause such Lender and its lending office(s) to suffer
no economic, legal or regulatory disadvantage, and provided, further, that
nothing in this Section shall affect or postpone any of the obligations or
rights of any Borrower or Lender pursuant to Section 2.19, 2.20 or 2.22.
2.24 Insurance Proceeds and Eminent Domain Proceeds. (a)
This Section 2.24 shall apply to all Insurance Proceeds and all Eminent Domain
Proceeds received by any Loan Party (i) in the case of Insurance Proceeds and
Eminent Domain Proceeds related to the Phase I Project, after the Phase I
Substantial Completion Date, (ii) in the case of Insurance Proceeds and
Eminent Domain Proceeds related to the Phase II Project, after the Phase II
Completion Date and (iii) in the case of Insurance Proceeds and Eminent Domain
Proceeds that do not relate to the Phase I Project or the Phase II Project, at
all times. The Facility Proportionate Share of any such Insurance Proceeds or
Eminent Domain Proceeds (other than those described in subsection (b) below)
shall be applied to the prepayment of the Obligations in accordance with
Section 2.12(c)(ii), unless each of the following conditions are satisfied or
waived by the Majority Initial Lending Institutions (and, if required by
Section 2.24(d), the Required Lenders) as required pursuant to Section 2.24(c)
or 2.24(d), as the case may be, within 60 Business Days (or, in the case of
Insurance Proceeds or Eminent Domain Proceeds described in Section 2.24(d), 90
Business Days) after any Loan Party's receipt of such Insurance Proceeds or
Eminent Domain Proceeds, in which event such amounts shall be applied to the
repair or restoration of the Project in accordance with the terms of such
Sections:
(i) such damage or destruction or Event of Eminent
Domain does not constitute the destruction of all or substantially
all of the man-made portion of the Project;
(ii) neither a Default nor an Event of Default has
occurred and is continuing (other than a Default or an Event of
Default resulting solely from such damage or destruction or Event of
Eminent Domain) and after giving effect to any proposed repair and
restoration (assuming any Defaults or Events of Default that occurred
prior thereto solely as a result from such damage or destruction or
Event of Eminent Domain have been waived or otherwise cured), no
Default or Event of Default could reasonably be expected to result
from such damage or destruction or proposed repair and restoration or
Event of Eminent Domain;
(iii) the Borrower certifies, and the Majority
Initial Lending Institutions (with, if required by Section 2.24(d),
the consent of the Required Lenders) determine in their reasonable
judgment in consultation with the Construction Consultant, that
repair or restoration of the Project to a condition substantially
similar to the condition of the Project immediately prior to the
event or events to which the relevant Insurance Proceeds or Eminent
Domain Proceeds, as the case may be relate, is technically and
economically feasible within a twelve-month period after receipt of
any such Insurance Proceeds or Eminent Domain Proceeds, and that a
sufficient amount of funds is or will be available to the relevant
Loan Party to make such repairs and restorations (subject at all
times to Section 7.7);
(iv) the Borrower delivers to the Administrative
Agent a plan describing in reasonable detail the nature of the
repairs or restoration to be effected and the anticipated costs and
schedule associated therewith (the "Repair Plan"), in form and
substance reasonably satisfactory to the Majority Initial Lending
Institutions (with, if required by Section 2.24(d), the Required
Lenders);
(v) the Borrower certifies, and the Majority
Initial Lending Institutions (with, if required by Section 2.24(d),
the consent of the Required Lenders) determine in their reasonable
judgment, that a sufficient amount of funds is or will be available
to the Borrower to make all payments on Indebtedness which will
become due during and following the repair period and, in any event,
to maintain compliance with the covenants set forth in Section 7.1
during such repair period;
(vi) no Permit is necessary to proceed with the
repair and restoration of the Project and no other instrument is
necessary for the purpose of effecting the repairs or restoration of
the Project or subjecting the repairs or restoration to the Liens of
the applicable Security Documents and maintaining the priority of
such Liens or, if any of the above is necessary, the Borrower and/or
the appropriate Loan Party will be able to obtain the same as and
when required;
(vii) the Majority Initial Lending Institutions
shall receive such additional title insurance, title insurance
endorsements, mechanic's lien waivers, certificates, opinions or
other matters as they may reasonably request as necessary or
appropriate in connection with such repairs or restoration of the
Project or to preserve or protect the Lenders' interests hereunder
and in the applicable Collateral; and
(viii) the proposed repair or restoration is not
prohibited by each of the other Financing Agreements.
(b) (i) The Loan Parties shall have the right to use up to
an amount of $5,000,000 of Insurance Proceeds and/or Eminent Domain
Proceeds received by the Loan Parties for each single loss or series
of related losses, but in any event no more than an aggregate amount
of $10,000,000 of such Insurance Proceeds and/or Eminent Domain
Proceeds during the term of the Facility, for working capital and/or
to repair, restore and/or replace the Property with respect to which
such Insurance Proceeds and/or Eminent Domain Proceeds relate and
Sections 2.12 and 2.24 (other than this Section 2.24(b)(i)) shall not
apply to such proceeds.
(ii) If, subject to Section 2.24(b)(i), there shall
occur any damage, destruction or Event of Eminent Domain of or with
respect to the Project with respect to which Insurance Proceeds
and/or Eminent Domain Proceeds received by the relevant Loan
Party(ies) for any single loss or series of related losses not in
excess of $30,000,000 are payable, such Insurance Proceeds and/or
Eminent Domain Proceeds shall be held by the Administrative Agent in
a Funding Account and released by the Administrative Agent to the
relevant Loan Party(ies) in amounts from time to time necessary to
make payments for work undertaken towards repair, restoration or
reconstruction necessitated by such event(s), upon presentation of
documentation reasonably satisfactory to the Administrative Agent
supporting such requested payments.
(c) Provided that the conditions set forth in subsection (a)
above have been waived by the Majority Initial Lending Institutions, or have
been acknowledged by such Persons as having been satisfied, which
acknowledgement shall not be unreasonably withheld, delayed or conditioned, if
there shall occur any damage, destruction or Event of Eminent Domain of or
with respect to the Project with respect to which Insurance Proceeds and/or
Eminent Domain Proceeds received by the relevant Loan Party(ies) for any
single loss or series of related losses in excess of $30,000,000, but not in
excess of $100,000,000, are payable, such Insurance Proceeds and/or Eminent
Domain Proceeds received by relevant Loan Party(ies) shall be held by the
Administrative Agent in a Funding Account and released by the Administrative
Agent to relevant Loan Party(ies) in accordance with subsection (e) below.
(d) Provided that the conditions set forth in subsection (a)
above have been waived by the Majority Initial Lending Institutions and the
Required Lenders, or have been acknowledged by such Persons as having been
satisfied, which acknowledgement shall not be unreasonably withheld, delayed
or conditioned, if there shall occur any damage, destruction or Event of
Eminent Domain of or with respect to the Project with respect to which
Insurance Proceeds and/or Eminent Domain Proceeds received by the relevant
Loan Party(ies) for any single loss or series of related losses in excess of
$100,000,000 are payable, such Insurance Proceeds and/or Eminent Domain
Proceeds shall be held by the Administrative Agent in a Funding Account and
released by the Administrative Agent to the relevant Loan Party(ies) in
accordance with subsection (e) below.
(e) Except as provided in Section 2.24(b), amounts which are
to be applied to repair or restoration of the Project pursuant to this Section
2.24 shall be disbursed by the Administrative Agent from the applicable
Funding Account in accordance with the procedures set forth in this Section
2.24(e). From time to time the Administrative Agent's authorization of release
of Insurance Proceeds and/or Eminent Domain Proceeds for application toward
such repairs or restoration shall be conditioned upon the relevant Loan
Party's delivery to the Administrative Agent of (i) a certificate from the
Borrower (I) describing in reasonable detail the nature of the repairs or
restoration to be effected with such release and certifying that such repairs
or restoration are materially consistent with, and shall be undertaken in
accordance with, the Repair Plan, (II) stating the cost of such repairs or
restoration, which shall be no less than the amount of Insurance Proceeds
and/or Eminent Domain Proceeds requested in such release, and that such
requested release amount will be applied to the cost thereof, (III) stating
that the aggregate amount requested in respect of such repairs or restoration
(when added to any other Insurance Proceeds and/or Eminent Domain Proceeds
received by the relevant Loan Party(ies) or funds otherwise made available to
the Loan Parties in respect of such damage or destruction or Event of Eminent
Domain) does not exceed the cost of such repairs or restoration and that a
sufficient amount of funds is or will be available to the relevant Loan
Party(ies) to complete such repair or restoration and (IV) stating that
neither a Default nor an Event of Default has occurred and is continuing other
than a Default or an Event of Default resulting solely from such damage,
destruction or Event of Eminent Domain (provided, that in any event no Default
or Event of Default under Sections 7.1 or 8(a) shall have occurred and be
continuing), (ii) such documents, certificates and information of the type
described in Section 2.24(a)(vii) as the Majority Initial Lending Institutions
may reasonably request and (iii) in the event such repairs or restorations
relate to damage, destruction or Event of Eminent Domain of the type described
in Section 2.24(d), all other documents, certificates and information with
respect to such Insurance Proceeds, Eminent Domain Proceeds, repair and/or
restoration as the Majority Initial Lending Institutions may reasonably
request as necessary or appropriate in connection with such repairs or
restoration of the Project or to preserve or protect the Lenders' interests
hereunder and in the applicable Collateral.
(f) If, (i) any Insurance Proceeds and/or Eminent Domain
Proceeds have not been applied to the repair or restoration of the Project by
(A) in the case of amounts subject to Section 2.24(b)(ii), twelve months after
receipt of such amounts and (B) in the case of amounts subject to Sections
2.24(c) and 2.24(d), the completion date set forth in the associated Repair
Plan or (ii) after Insurance Proceeds and/or Eminent Domain Proceeds have been
applied to the repair or restoration of the Project as provided in this
Section 2.24 (other than Section 2.24(b)(i)) any excess Insurance Proceeds
and/or Eminent Domain Proceeds remain, then, in each case, the Facility
Proportionate Share of such Insurance Proceeds and/or Eminent Domain Proceeds
shall be applied to the prepayment of the Obligations in accordance with
Section 2.12(c)(ii).
(g) (i) On the date any Insurance Proceeds and/or any
Eminent Domain Proceeds (other than any Insurance Proceeds and/or Eminent
Domain Proceeds with respect to which a prepayment is required to be made
pursuant to this Section 2.24) are required pursuant to the terms of any First
Lien Secured Obligations to be applied to (or offered to be applied to) the
repayment of any First Lien Secured Obligations (in the event any such repaid
First Lien Secured Obligations constitute a revolving credit facility,
accompanied by a permanent reduction of commitments under such revolving
credit facility in the amount of such repayment), the Facility Proportionate
Share of such Insurance Proceeds and/or Eminent Domain Proceeds shall be
applied toward the prepayment of the Obligations in accordance with Section
2.12(c)(ii).
(ii) In the event any Insurance Proceeds and/or Eminent
Domain Proceeds are not applied toward the prepayment of the
Obligations pursuant to Section 2.12 and this Section 2.24 as a
result of not being deemed part of the "Facility Proportionate Share"
of such Insurance Proceeds and/or Eminent Domain Proceeds and such
amounts are not applied to the prepayment and permanent reduction of
other First Lien Secured Obligations for any reason whatsoever
(including the failure of any holder of such First Lien Secured
Obligations to accept an offer of prepayment) within 60 days of the
application of the Facility Proportionate Share of such proceeds to
the Obligations in accordance with Section 2.12, then such amounts
shall, on the last day of such 60-day period, be applied to the
prepayment of the Obligations in accordance with Section 2.12(c)(ii).
2.25 Replacement of Lenders under Certain Circumstances. The
Borrower shall be permitted to replace any Lender (and cause such Lender to
assign its outstanding Loans and Commitments, if any, in full to one or more
replacement financial institutions or other Persons) that (a) requests
reimbursement for amounts owing pursuant to Section 2.19 or 2.20 or gives a
notice of illegality pursuant to Section 2.22, (b) is a Defaulting Lender or
(c) does not consent to any proposed amendment, modification, termination,
waiver or consent as contemplated by Sections 10.1(a)(i), 10.1(a)(ii),
10.1(a)(viii), 10.1(a)(ix) or 10.1(a)(x) where the consent of the Required
Lenders shall have been obtained; provided that (i) such replacement does not
conflict with any Requirement of Law, (ii) no Event of Default shall have
occurred and be continuing at the time of such replacement, (iii) prior to any
such replacement, such Lender shall have taken no action under Section 2.23 so
as to eliminate the continued need for payment of amounts owing pursuant to
Section 2.19 or 2.20 or to eliminate the illegality referred to in such notice
of illegality given pursuant to Section 2.22, (iv) on the date of such
replacement, the replacement financial institution(s) or other Persons shall
pay to such replaced Lender an amount equal to the sum of (without
duplication) (A) an amount equal to the principal of, and all accrued interest
on, all outstanding Loans of the such Lender, (B) an amount equal to all
unreimbursed drawings under Letters of Credit that have been funded by such
Lender, together with all then unpaid interest with respect thereto at such
time and (C) an amount equal to all accrued, but theretofore unpaid fees owing
to such Lender pursuant to Section 2.9 through the date of replacement, (v) on
the date of such replacement the Borrower shall pay to such replaced Lender
any amounts due and payable to such Lender pursuant to Section 2.19, 2.20 or
2.21, (vi) the replacement financial institution(s) or other Persons shall be
Eligible Assignees, (vii) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of Section 10.6(c) (provided
that the Borrower shall be obligated to pay the registration and processing
fee referred to therein), (viii) if such replaced Lender was replaced pursuant
to clause (d) above, such replacement financial institution(s) or other
Persons shall consent, at the time of such replacement, to each matter in
respect of which such replaced Lender had not consented and (ix) any such
replacement shall not be deemed to be a waiver of any rights that any Loan
Party, the Administrative Agent or any other Lender shall have against the
replaced Lender. The Borrower may not elect to replace any Lender pursuant to
this Section 2.25 that is also an Issuing Bank unless, prior to the
effectiveness of such election, the Borrower shall have caused each
outstanding Letter of Credit issued thereby to be cancelled. Upon the payment
of all amounts owing to any replaced Lender in accordance with this Section
2.25, such replaced Lender shall no longer constitute a "Lender" for purposes
hereof; provided, any rights of such Lender to indemnification hereunder shall
survive as to such Lender.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other
Revolving Credit Lenders set forth in Section 3.4(a), agrees to issue standby
and, if agreed to by the applicable Issuing Lender, commercial letters of
credit ("Letters of Credit") for the account of the Borrower on any Business
Day during the Letter of Credit Commitment Period in such form as may be
approved from time to time by the Issuing Lender; provided, that the Issuing
Lender shall have no obligation to issue any Letter of Credit if, after giving
effect to such issuance, (i) the L/C Obligations would exceed the L/C
Commitment or (ii) the aggregate amount of the Available Revolving Credit
Commitments would be less than zero. Each Letter of Credit shall (i) be
denominated in Dollars and (ii) expire no later than the earlier of (x) the
date which is one year after the date of issuance and (y) the date which is
five Business Days prior to the Scheduled Revolving Credit Termination Date,
provided that any Letter of Credit may provide for the extension of the expiry
date thereof for additional one-year periods (which shall in no event extend
beyond the date referred to in subsection (y) above).
(b) The Issuing Lender shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any L/C Participant to exceed any limits imposed
by, any applicable Requirement of Law.
3.2 Procedure for Issuance of Letters of Credit.(a) (a)
Prior to the Final Completion Date with respect to a Project Phase, the
Borrower shall have the right to request that the Issuing Lender issue a
Letter of Credit to be utilized in furtherance of the payment or support for
such Project Phase's Project Costs. If the Borrower desires that the Issuing
Lender issue such a Letter of Credit, the Borrower may request that the
Issuing Lender issue a Letter of Credit by delivering to the Issuing Lender
and the Disbursement Agent, in each case in accordance with and pursuant to
the terms of Section 2.3 of the Disbursement Agreement, a Notice of Advance
Request in the form, at the times and as required under the Disbursement
Agreement. Notwithstanding any provision of the Disbursement Agreement to the
contrary, such Notice of Advance Request and the related Advance Confirmation
Notice must be received by the Issuing Lender at least 3 Business Days (or
such shorter period agreed to by the Issuing Lender) prior to the proposed
date of issuance (in addition to such other documents, certificates, documents
and papers as the Issuing Lender may request) and must contain all the
information relevant to the proposed Letter of Credit issuance as set forth in
a Letter of Credit Request.
(b) On or after the date that is 60 days prior to the
reasonably anticipated Phase I Opening Date, the Borrower shall have the right
to request that the Issuing Lender issue a Letter of Credit to be utilized for
purposes permitted hereby other than in furtherance of the payment or support
for a Project Phase's Project Costs. If the Borrower desires that the Issuing
Lender issue such a Letter of Credit, the Borrower may request that the
Issuing Lender issue a Letter of Credit by delivering to the Issuing Lender
and the Administrative Agent, at least 3 Business Days (or such shorter period
agreed to by the Issuing Lender) prior to the proposed date of issuance (such
proposed date to be a Business Day), a Letter of Credit Request accompanied by
such other documents, certificates, documents and papers as the Issuing Lender
may reasonably request. Letter of Credit Requests may be delivered by
facsimile transmission.
Promptly after the issuance or amendment of a Letter of Credit (in any event
upon satisfaction or waiver of the conditions precedent set forth in Section
5.2 or 5.3, as applicable), the Issuing Lender shall notify the Borrower and
the Administrative Agent, in writing, of such issuance or amendment and such
notice shall be accompanied by a copy of such issuance or amendment. Upon
receipt of such notice, the Administrative Agent shall promptly notify the
Revolving Credit Lenders in writing of such issuance or amendment and if so
requested by any such Lender the Administrative Agent shall furnish such
Lender with a copy of such issuance or amendment. Notwithstanding the
foregoing, the Issuing Lender shall not be obligated to make any Letters of
Credit available to the Borrower at a time when a Lender Default exists unless
the Issuing Lender has entered into arrangements satisfactory to it to
eliminate the Issuing Lender's risk with respect to the Defaulting Lender's or
Lenders' participation in such Letters of Credit.
3.3 Fees and Other Charges. (a) The Borrower shall pay a fee
on the aggregate drawable amount of each outstanding Letter of Credit at a per
annum rate equal to the Applicable Margin then in effect with respect to
Eurodollar Loans under the Revolving Credit Facility, shared ratably among the
Revolving Credit Lenders and payable quarterly in arrears on each L/C Fee
Payment Date after the issuance date of such Letter of Credit; provided,
however, that any such fee accrued with respect to any Defaulting Lender
during the period prior to the time such Lender became a Defaulting Lender and
unpaid at such time shall not be payable by the Borrower so long as such
Lender shall be a Defaulting Lender except to the extent that such fee shall
otherwise have been due and payable by such Borrower prior to such time; and
provided further that no such fee shall accrue for the benefit of a Defaulting
Lender so long as such Lender shall be a Defaulting Lender. In addition, the
Borrower shall pay to the Issuing Lender for its own account a fronting fee
equal to 1/4 of 1% per annum on the aggregate drawable amount of each
outstanding Letter of Credit (but in any event not less than $500.00 per annum
per Letter of Credit), payable quarterly in arrears on each L/C Fee Payment
Date after the issuance date of such Letter of Credit.
(b) In addition to the foregoing fees, the Borrower shall
pay or reimburse the Issuing Lender for such normal and customary costs and
expenses as are incurred or customarily charged by the Issuing Lender in
issuing, negotiating, effecting payment under, amending or otherwise
administering any Letter of Credit.
3.4 L/C Participations. (a) The Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases
from the Issuing Lender, on the terms and conditions hereinafter stated, for
such L/C Participant's own account and risk an undivided interest equal to
such L/C Participant's Revolving Credit Percentage in the Issuing Lender's
obligations and rights under each Letter of Credit issued hereunder and the
amount of each draft paid by the Issuing Lender thereunder. Each L/C
Participant unconditionally and irrevocably agrees with the Issuing Lender
that, if a draft is paid under any Letter of Credit for which the Issuing
Lender is not reimbursed in full by the Borrower in accordance with the terms
of this Agreement, such L/C Participant shall pay to the Issuing Lender,
regardless of the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the other conditions specified in
Section 5, upon demand, at the Issuing Lender's address for notices specified
herein an amount equal to such L/C Participant's Revolving Credit Percentage
of the amount of such draft, or any part thereof, that is not so reimbursed.
Each L/C Participant acknowledges and agrees that its obligation to acquire
participations and make payments pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit, the occurrence and continuance of a Default or Event of
Default, the reduction or termination of the Commitments, any adverse change
in the condition (financial or otherwise) of the Borrower or any other Person
or any breach of this Agreement or any other Loan Document by the Borrower or
any other Person (including, without limitation, any other Revolving Credit
Lender), and each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(b) If any amount required to be paid by any L/C Participant
to the Issuing Lender pursuant to Section 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any
Letter of Credit is paid to the Issuing Lender within three Business Days
after the date such payment is due, such L/C Participant shall pay to the
Issuing Lender on demand an amount equal to the product of (i) such amount,
times (ii) the daily average Federal Funds Effective Rate during the period
from and including the date such payment is required to the date on which such
payment is immediately available to the Issuing Lender, times (iii) a fraction
the numerator of which is the number of days that elapse during such period
and the denominator of which is 360. If any such amount required to be paid by
any L/C Participant pursuant to Section 3.4(a) is not made available to the
Issuing Lender by such L/C Participant within three Business Days after the
date such payment is due, the Issuing Lender shall be entitled to recover from
such L/C Participant, on demand, such amount with interest thereon calculated
from such due date at the rate per annum applicable to Base Rate Loans under
the Revolving Credit Facility. A certificate of the Issuing Lender submitted
to any L/C Participant with respect to any amounts owing under this Section
shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant
its pro rata share of such payment in accordance with Section 3.4(a), the
Issuing Lender receives any payment related to such Letter of Credit (whether
directly from the Borrower or otherwise, including proceeds of collateral
applied thereto by the Issuing Lender), or any payment of interest on account
thereof, the Issuing Lender will distribute to such L/C Participant its pro
rata share thereof; provided, however, that in the event that any such payment
received by the Issuing Lender shall be required to be returned by the Issuing
Lender, such L/C Participant shall return to the Issuing Lender the portion
thereof previously distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. If any draft
or other form of demand shall be presented for payment under any Letter of
Credit, the Issuing Lender shall promptly notify the Borrower of the date and
amount thereof. The Borrower agrees to reimburse the Issuing Lender within one
Business Day of the date on which the Issuing Lender notifies the Borrower and
the Administrative Agent of the date and amount of a draft presented under any
Letter of Credit and paid by the Issuing Lender for the amount of (a) such
draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by the Issuing Lender in connection with such payment (the amounts
described in the foregoing subsections (a) and (b) in respect of any drawing,
collectively, the "Payment Amount"). Each such payment shall be made to the
Administrative Agent at the Payment Office, for the account of the Issuing
Lender, in Dollars and in immediately available funds. The Administrative
Agent shall distribute such payments to the Issuing Lender promptly upon
receipt at its address for notices specified herein in like funds as received.
Interest shall be payable on each Payment Amount from the date of the
applicable drawing until payment in full at the rate set forth in (i) until
the first Business Day following the date notice of the applicable drawing is
received by the Borrower from the Issuing Lender, Section 2.15(b) with respect
to Base Rate Loans and (ii) thereafter, Section 2.15(c). Each drawing under
any Letter of Credit shall (unless an event of the type described in
subsection (i) or (ii) of Section 8(f) shall have occurred and be continuing
with respect to the Borrower, in which case the procedures specified in
Section 3.4 for funding by L/C Participants shall apply) constitute a request
by the Borrower to the Administrative Agent for a borrowing of Revolving
Credit Loans that are Base Rate Loans (or, at the option of the Administrative
Agent and the Swing Line Lender in their sole discretion, a borrowing pursuant
to Section 2.7 of Swing Line Loans) in the amount of such drawing. The
Borrowing Date with respect to such borrowing shall be the first date on which
the conditions set forth in Section 5.3 (other than Section 5.3(a)) are
satisfied (or, if applicable, Swing Line Loans to the extent Swing Line Loans
are then available) after such drawing under such Letter of Credit.
3.6 Responsibility of Issuing Lender With Respect to
Requests for Drawings and Payments; Obligations Absolute. (a) In determining
whether to honor any drawing under any Letter of Credit by the beneficiary
thereof, the Issuing Lender shall be responsible only to examine the documents
delivered under such Letter of Credit with reasonable care so as to ascertain
whether they appear on their face to be in accordance with the terms and
conditions of such Letter of Credit. As between the Borrower and the Issuing
Lender, the Borrower assumes all risks of the acts and omissions of, or misuse
of the Letters of Credit issued by the Issuing Lender, by the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation
of the foregoing, the Issuing Lender shall not be responsible for: (i) the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of any such Letter of Credit, even if it should in fact prove to be
in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any such Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason; (iii) failure of the
beneficiary of any such Letter of Credit to comply fully with any conditions
required in order to draw upon such Letter of Credit; (iv) errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex or otherwise, whether or not they be in cipher; (v)
errors in interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any such Letter of Credit or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of the Issuing Lender, including any act or
omission of any present or future Governmental Authority; none of the above
shall affect or impair, or prevent the vesting of, any the Issuing Lender's
rights or powers hereunder. Without limiting the foregoing and in furtherance
thereof, any action taken or omitted by the Issuing Lender under or in
connection with the Letters of Credit or any documents and certificates
delivered thereunder, if taken or omitted (subject to the next sentence) in
good faith, shall not give rise to any liability on the part of the Issuing
Lender to the Borrower. Notwithstanding anything to the contrary contained in
this Section 3.6(a), the Borrower shall retain any and all rights it may have
against the Issuing Lender for any liability arising solely out of the gross
negligence or willful misconduct of the Issuing Lender.
(b) The obligation of the Borrower to reimburse the Issuing
Lender for drawings honored under the Letters of Credit issued by it and to
repay any Revolving Credit Loans made by Lenders pursuant to this Section 3
and the obligations of Lenders under Section 3.4 shall be unconditional and
irrevocable and shall be performed strictly in accordance with the terms
hereof under all circumstances including any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit; (ii) the
existence of any claim, set-off, defense or other right which the Borrower or
any Lender may have at any time against a beneficiary or any transferee of any
Letter of Credit (or any Persons for whom any such transferee may be acting),
the Issuing Lender, Lender or any other Person or, in the case of a Lender,
against the Borrower, whether in connection herewith, the transactions
contemplated herein or any unrelated transaction (including any underlying
transaction between the Borrower or one of its Subsidiaries and the
beneficiary for which any Letter of Credit was procured); (iii) any draft or
other document presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; (iv) payment by the Issuing Lender
under any Letter of Credit against presentation of a draft or other document
which does not substantially comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations, properties, assets,
condition (financial or otherwise) or prospects of any Loan Party; (vi) any
breach hereof or any other Loan Document by any party thereto; (vii) any other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing; or (viii) the fact that an Event of Default or a Default shall have
occurred and be continuing; provided, in each case, that any action taken by
the Issuing Lender with respect to the applicable Letter of Credit shall not
have constituted gross negligence or willful misconduct of the Issuing Lender.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Arrangers, the Agents, the Managers and the
Lenders to enter into this Agreement and to make the Loans and issue or
participate in the Letters of Credit, the Borrower hereby represents and
warrants to each Arranger, each Agent, each Manager and each Lender that the
following statements are true and correct (provided that (a) with respect to
Sections 4.25(h) and 4.26, such representations and warranties shall not be
made until (i) as they relate to the Phase I Project, on and after the Phase I
Opening Date and (ii) as they relate to the Phase II Project, on and after the
Phase II Opening Date and (b) representations and warranties made with respect
to the Completion Guarantor shall only be made until the Last Project Final
Completion Date):
4.1 Financial Condition. The audited consolidated balance
sheets of the Borrower and its consolidated Subsidiaries as at December 31,
2003, and the related consolidated statements of income and of cash flows for
the Fiscal Year ended on such date, reported on by and accompanied by an
unqualified report from Deloitte & Touche LLP, present fairly in all material
respects the consolidated financial condition of the Borrower and its
consolidated Subsidiaries as at such date, and the consolidated results of its
operations and its consolidated cash flows for such Fiscal Year. The unaudited
consolidated balance sheets of the Borrower and its consolidated Subsidiaries
as at September 30, 2004, and the related unaudited consolidated statements of
income and cash flows for the 9-month period ended on such date, present
fairly in all material respects the consolidated financial condition of the
Borrower and its consolidated Subsidiaries as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
9-month period then ended (subject to normal year-end audit adjustments). All
such financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by the aforementioned firm of accountants
and disclosed therein and except with respect to interim financials, normal
year-end audit adjustments). As of the Closing Date, the Borrower and its
Subsidiaries do not have any material Guarantee Obligations, contingent
liabilities and liabilities for taxes, or any long-term leases or unusual
forward or long-term commitments, including, without limitation, any interest
rate or foreign currency swap or exchange transaction or other obligation in
respect of derivatives, that are not reflected in the most recent financial
statements referred to in this paragraph.
4.2 No Change. Since December 31, 2003, there have been no
developments or events that, individually or collectively, have had or could
reasonably be expected to have a Material Adverse Effect.
4.3 Corporate/LLC Existence; Compliance with Law. Each of
the Loan Parties, Wynn Resorts Holdings and the Completion Guarantor (a) is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the corporate or limited liability
company power and authority, and the legal right, to own and operate its
Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation or limited liability company and in good standing under the laws
of each jurisdiction where its ownership, lease or operation of Property or
the conduct of its business requires such qualification, except to the extent
the failure to be so qualified or in good standing could not reasonably be
expected to have a Material Adverse Effect and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
4.4 Power; Authorization; Enforceable Obligations. Each Loan
Party, Wynn Resorts Holdings and the Completion Guarantor has the corporate or
limited liability company power, as the case may be, and authority, and the
legal right, to execute, deliver and perform the Loan Documents, the Financing
Agreements and the Material Contracts to which it is a party and to carry out
the transactions contemplated thereby and, in the case of the Borrower, to
borrow hereunder. Each Loan Party, Wynn Resorts Holdings and the Completion
Guarantor has taken all necessary corporate or limited liability company
action, as the case may be, to authorize the execution, delivery and
performance of the Loan Documents, the Financing Agreements and the Material
Contracts to which it is a party and, in the case of the Borrower and Capital
Corp., to authorize the borrowings and issuances of Indebtedness on the terms
and conditions of this Agreement. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
Person (other than a Loan Party) is required to be obtained, made or taken by
a Loan Party in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement
or any of the Loan Documents, except (i) consents, authorizations, filings and
notices described in Schedule 4.4, which consents, authorizations, filings and
notices have, unless otherwise indicated on Schedule 4.4, been obtained or
made (or waived) and are in full force and effect and (ii) the filings and
actions referred to in Section 4.19. Each Loan Document, Financing Agreement
and Material Contract has been duly executed and delivered on behalf of the
Completion Guarantor, Wynn Resorts Holdings and each Loan Party party thereto.
This Agreement constitutes, and each other Loan Document, Financing Agreement
and Material Contract upon execution will constitute, a legal, valid and
binding obligation of the Completion Guarantor, Wynn Resorts Holdings and each
Loan Party party thereto, enforceable against the Completion Guarantor, Wynn
Resorts Holdings and each Loan Party party thereto in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of
this Agreement, the other Loan Documents, the Financing Agreements and the
Material Contracts, the issuance of Letters of Credit, the borrowings
hereunder and the use of the proceeds thereof will not violate any Requirement
of Law or any Contractual Obligation of the Completion Guarantor, Wynn Resorts
Holdings or any Loan Party (except, in the case of the Material Contracts, to
the extent that any such violations (individually or in the aggregate) could
not reasonably be expected to have a Material Adverse Effect) and will not
result in, or require, the creation or imposition of any Lien on any of their
respective Properties or revenues pursuant to any Requirement of Law or any
such Contractual Obligation (other than the Liens created by the Security
Documents, the other First Lien Security Documents and the Second Lien
Security Documents). No Requirement of Law or Contractual Obligation
applicable to the Completion Guarantor, Wynn Resorts Holdings or any Loan
Party could, individually or collectively, reasonably be expected to have a
Material Adverse Effect. Other than amounts that have been paid in full, no
fees or taxes, including without limitation stamp, transaction, registration
or similar taxes, are required to be paid by the Loan Parties for the
legality, validity, or enforceability of any Financing Agreements and, except
to the extent that the failure to so pay any such fees or taxes could not
(individually or in the aggregate) reasonably be expected to have a Material
Adverse Effect, any Material Contracts.
4.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending
or, to the knowledge of the Borrower, threatened by or against any Major
Project Participant, the Completion Guarantor, Wynn Resorts Holdings or any
Loan Party or against any of their respective properties or revenues (a) with
respect to any of the Financing Agreements or any of the transactions
contemplated hereby or thereby or (b) that, individually or collectively,
could reasonably be expected to have a Material Adverse Effect.
4.7 No Default. Neither the Completion Guarantor, Wynn
Resorts Holdings nor any Loan Party is in default under or with respect to any
of its Contractual Obligations in any respect that, individually or
collectively, could reasonably be expected to have a Material Adverse Effect.
No Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of the Loan Parties
is the sole owner of, legally and beneficially, and has good, marketable and
insurable title to, or has a valid leasehold interest in, all its Real Estate,
and good title to, a valid leasehold interest in or a valid right to use, all
its other material Property, and none of such Property is subject to any
claims, liabilities, obligations, charges or restrictions of any kind, nature
or description (other than claims, liabilities, obligations, charges or
restrictions that individually or in the aggregate could not reasonably be
expected to materially interfere with the Loan Parties' intended use of such
Property) or to any Lien except for Permitted Liens. None of the Pledged Stock
is subject to any Lien except for Permitted Liens.
4.9 Intellectual Property. (a) Each Loan Party owns, or is
licensed or otherwise has the right to use, all Intellectual Property that is
material to the conduct of its business as currently conducted. No claim has
been asserted or is pending by any Person challenging the use of any such
Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does the Borrower know of any valid basis for any
such claim, except (i) with respect to the Intellectual Property related to or
otherwise associated with the Loan Parties' use of the "Wynn" name, such
claims that, if determined adversely to a Loan Party, could not reasonably be
expected to have a material adverse effect on such Loan Party's ability to use
the "Wynn" name in its Permitted Business as currently used or contemplated to
be used and (ii) with respect to all other Intellectual Property, as could
not, individually or collectively, reasonably be expected to have a Material
Adverse Effect. The use by each Loan Party of the Intellectual Property
related to or otherwise associated with such Loan Party's use of the "Wynn"
name does not infringe on the rights of any Person, which infringement could
reasonably be expected to have a material adverse effect on such Loan Party's
ability to use the "Wynn" name in its Permitted Business as currently used or
contemplated to be used. The use by each Loan Party of Intellectual Property
other than Intellectual Property related to or otherwise associated with such
Loan Party's use of the "Wynn" name, does not infringe on the rights of any
Person, which infringement, individually or collectively, could reasonably be
expected to have a Material Adverse Effect.
(b) As of the Closing Date, Schedule 4.9(b) (i) identifies
each of the trademarks, service marks and trade name applications and
registrations currently applied for or registered by, directly or indirectly,
each of the Loan Parties and identifies which such Person applied for or
registered such Intellectual Property and (ii) specifies as to each, the
jurisdiction in which such Intellectual Property has been issued or registered
(or, if applicable, in which an application for such issuance or registration
has been filed), including the respective registration or application numbers
and applicable dates of registration or application and expiration.
(c) As of the Closing Date, Schedule 4.9(c) (i) identifies
each of the material patents and patent applications currently applied for or
owned by, directly or indirectly, each of the Loan Parties and identifies
which such Person applied for or owns such Intellectual Property and (ii)
specifies as to each, the jurisdiction in which such Intellectual Property has
been issued or registered (or, if applicable, in which an application for such
issuance or registration has been filed), including the respective patent or
application numbers and applicable dates of issuance or application and
expiration.
(d) As of the Closing Date, Schedule 4.9(d) (i) identifies
each of the material copyrights and copyright applications and registrations
currently applied for or registered by, directly or indirectly, by each of the
Loan Parties and identifies which such Person applied for or registered such
Intellectual Property and (ii) specifies as to each, the jurisdiction in which
such Intellectual Property has been issued or registered (or, if applicable,
in which an application for such issuance or registration has been filed),
including the respective registration or application numbers and applicable
dates of registration or application and expiration.
(e) As of the Closing Date, Schedule 4.9(e) (i) identifies,
each of the material trade secrets currently owned or claimed, directly or
indirectly, by each of the Loan Parties and identifies which such Person owns
or claims such Intellectual Property and (ii) specifies as to each, the
jurisdiction in which such Intellectual Property exists.
(f) As of the Closing Date, Schedule 4.9(f) identifies all
licenses, sublicenses and other agreements relating to Intellectual Property
to which any of the Loan Parties is a party that are material to the conduct
of such Loan Party's Permitted Business and pursuant to which (i) any of the
Loan Parties is a licensor, sub-licensor, licensee or sub-licensee or the
equivalent or (ii) any other Person is authorized to use any Intellectual
Property as a licensee, sub-licensee or the equivalent.
4.10 Taxes. (a) Each of the Completion Guarantor, Wynn
Resorts Holdings and the Loan Parties has filed, or caused to be filed, all
federal and state income tax and informational returns that are required to
have been filed by it in any jurisdiction, and all such tax and informational
returns are correct and complete in all material respects. Each of the
Completion Guarantor, Wynn Resorts Holdings and the Loan Parties has paid all
taxes shown to be due and payable on such returns and all other material taxes
and assessments payable by it, to the extent the same have become due and
payable (other than (x) those taxes that it is contesting in good faith and by
appropriate proceedings and (y) taxes that are not yet due, with respect to
each of which it has established reserves that are adequate for the payment
thereof and as are required by GAAP).
(b) There are no Liens for Taxes on any of the Properties of
the Completion Guarantor or any of the Loan Parties other than Liens permitted
pursuant to Section 7.3(a).
4.11 Federal Regulations. Neither Wynn Resorts Holdings, the
Borrower nor any of its Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
"purchasing" or "carrying" any "margin stock" (in each case within the meaning
of Regulation U). No part of the proceeds of the Loans made or Letters of
Credit issued hereunder will be used to purchase or carry any such margin
stock or to extend credit to others for the purpose of purchasing or carrying
any such margin stock or for any purpose that violates the provisions of
Regulation T, Regulation U or Regulation X.
4.12 Labor Matters and Acts of God. (a) There are no
strikes, stoppages, slowdowns or other labor disputes pending against any of
the Loan Parties or, to the knowledge of the Borrower, pending against any
Major Project Participant or threatened against any Loan Party or Major
Project Participant that (individually or in the aggregate) could reasonably
be expected to have a Material Adverse Effect. Hours worked by and payment
made to employees of the Loan Parties are not in violation of the Fair Labor
Standards Act or any other applicable Requirement of Law dealing with such
matters that (individually or in the aggregate) could reasonably be expected
to have a Material Adverse Effect.
(b) Neither the business nor the Properties of any Loan
Party, nor, to the knowledge of the Borrower, any Major Project Participant is
affected by any fire, explosion, accident, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy, or other casualty or event of
force majeure, that could reasonably be expected to have a Material Adverse
Effect.
4.13 ERISA. Except in each case as could not reasonably be
expected to result in a material liability to the Loan Parties, (a) neither a
Reportable Event nor an "accumulated funding deficiency" (within the meaning
of Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all
material respects with all applicable provisions of ERISA and the Code, (b) no
termination of a Single Employer Plan has occurred, and no Lien in favor of
the PBGC or a Plan has arisen, during such five-year period, (c) the actuarial
present value of all benefit liabilities under each Single Employer Plan
(based on those assumptions that would be used to determine whether each such
Single Employer Plan could be terminated in a standard termination under
Section 4041(b) of ERISA) did not, as of the last annual valuation date prior
to the date on which this representation is made or deemed made, exceed the
value of the assets of such Plan allocable to such accrued benefits, (d)
neither the Borrower, any other Loan Party nor any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan and
neither the Borrower, any other Loan Party nor any Commonly Controlled Entity
would become subject to any material liability under ERISA if any such Person
were to withdraw completely from all Multiemployer Plans as of the most recent
valuation date for which each such Multiemployer Plan has furnished data
regarding potential withdrawal liability to the applicable Loan Party and (e)
as of the Closing Date, no such Multiemployer Plan is in Reorganization or
Insolvent.
4.14 Investment Company Act; Other Regulations. Neither the
Completion Guarantor, Wynn Resorts Holdings nor any Loan Party is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, or the Interstate Commerce Act or registration under the Investment
Company Act of 1940 or under any other federal or state statute or regulation
which may limit its ability to incur Indebtedness other than the Nevada Gaming
Laws or which may otherwise render all or any portion of the Obligations
unenforceable. Incurrence of the Obligations by the Completion Guarantor, Wynn
Resorts Holdings and the Loan Parties under the Loan Documents complies with
all applicable provisions of the Nevada Gaming Laws, subject to any
informational filings or reports required by Nevada Gaming Commission
Regulation Section 8.130 and subject to the receipt of requisite approvals
from the Nevada Gaming Authorities relating to the pledges of Capital Stock of
the Loan Parties that are licensed or registered by the Nevada Gaming
Authorities, which approvals shall be sought diligently and in good faith by
the Borrower prior to the Phase I Opening Date, when the gaming license with
respect to the Project is applied for by the Borrower.
4.15 Subsidiaries. (a) The Persons listed on Schedule 4.15
constitute all the Subsidiaries of the Borrower as of the Closing Date.
Schedule 4.15 sets forth as of the Closing Date, the name and jurisdiction of
formation of each Subsidiary of the Borrower and, as to each such Subsidiary,
the percentage and number of each class of Capital Stock owned by the
Borrower. Each such Subsidiary is a Wholly Owned Subsidiary of the Borrower.
(b) There are no outstanding subscriptions, options,
warrants, calls, rights or other agreements or commitments (other than stock
options granted to employees, officers or directors and directors' qualifying
shares) of any nature relating to any Capital Stock of the Borrower or any
Subsidiary of the Borrower. Neither the Borrower nor any of its Subsidiaries
have issued, or authorized the issuance of, any Disqualified Stock.
(c) Neither the Borrower nor any of its Subsidiaries are
engaged in any businesses other than the Permitted Businesses.
4.16 Use of Proceeds; Letters of Credit. Subject to the
terms of the Disbursement Agreement and this Agreement, the proceeds of the
extension of credit under this Agreement shall be used (a) for the payment of
transaction costs, fees and expenses incurred in connection with this
Agreement and the transactions contemplated hereby, (b) to pay Project Costs,
(c) to make the Macau Loan and (d) for working capital and general corporate
purposes.
4.17 Environmental Matters. (a) To the knowledge of the
Borrower, the Loan Parties: (i) are, and within the period of all applicable
statutes of limitation have been, in compliance with all applicable
Environmental Laws; and (ii) reasonably believe that compliance with all
applicable Environmental Laws that is or is reasonably expected to become
applicable to any of them will be timely attained and maintained except, in
each case, to the extent any violation could not reasonably be expected to
result in any material liability to the Loan Parties or their Properties or in
an inability of the Loan Parties to perform their respective obligations in
any material respect under the Operative Documents.
(b) To the knowledge of the Borrower, Hazardous Substances
are not present at, on, under, in, or about any real property now or formerly
owned, leased or operated by any of the Loan Parties, or at any other location
(including, without limitation, any location to which Hazardous Substances
have been sent for re-use or recycling or for treatment, storage, or disposal)
which could, individually or collectively, reasonably be expected to (i) give
rise to liability of any of the Loan Parties under any applicable
Environmental Law or otherwise result in costs to any of the Loan Parties
that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, or (ii) materially interfere with any of the Loan
Parties' continued operations, or (iii) materially impair the fair saleable
value of any real property owned or leased by any of the Loan Parties.
(c) Except as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, there is no
judicial, administrative, or arbitral proceeding (including any notice of
violation or alleged violation) under or relating to any Environmental Law
(including, without limitation, any Environmental Claims) to which any of the
Loan Parties is, or to the knowledge of the Borrower will be, named as a party
that is pending or, to the knowledge of the Borrower, threatened.
(d) Except as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, no Loan Party has
received any written request for information, or been notified that it is a
potentially responsible party, under or relating to the federal Comprehensive
Environmental Response, Compensation, and Liability Act or any similar
Environmental Law.
(e) Except as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, no Loan Party has
entered into or agreed to any consent decree, order, or settlement or other
agreement, or is subject to any judgment, decree, or order or other agreement,
in any judicial, administrative, arbitral, or other forum for dispute
resolution, relating to compliance with or liability under any Environmental
Law or Environmental Claim.
(f) Except as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, no Loan Party has
assumed or retained, by contract or operation of law, any liabilities of any
kind, fixed or contingent, known or unknown, under any Environmental Law or
with respect to any Hazardous Substances.
(g) Except as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, (i) Hazardous
Materials Activities are not presently occurring, and have not previously
occurred, at, on, under, in, or about any Real Estate now or formerly owned,
leased or operated by any of the Loan Parties and (ii) none of the Loan
Parties have ever engaged in any Hazardous Materials Activities at any
location.
4.18 Accuracy of Information, etc. No statement or
information contained in this Agreement, any other Loan Document, the
Confidential Information Memorandum or any other document, certificate or
statement furnished, in each case in writing and other than projections,
estimates and other forward-looking information, to the Arrangers, the Agents,
the Managers or the Lenders or any of them, by or on behalf of any Loan Party
for use in connection with the transactions contemplated by this Agreement or
the other Loan Documents, taken as a whole, contained as of the date such
statement, information, document or certificate was so furnished (or, in the
case of the Confidential Information Memorandum, as of the date of this
Agreement), any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained herein or
therein not misleading in light of the circumstances in which such statements
were made. The projections, estimates and other forward-looking information
and pro forma financial information contained in the materials referenced
above (including, without limitation, the Projections) are based upon good
faith estimates and assumptions believed by management of the Borrower to be
reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as
fact, that no assurance is given that the results forecasted in such financial
information will be achieved and that actual results during the period or
periods covered by such financial information are subject to significant
uncertainties (many of which are not in the control of the Loan Parties) and
may differ from the projected results set forth therein by a material amount.
4.19 Security Documents. (a) The Security Agreement is
effective to create in favor of the Collateral Agent, for the benefit of the
Secured Parties, a legal, valid and binding security interest in the
Collateral described therein and proceeds and products thereof. In the case of
the certificated Pledged Stock, when any stock or membership certificates
representing such certificated Pledged Stock are delivered to the Collateral
Agent with a corresponding endorsement, and in the case of the other
Collateral described in the Security Agreement (other than Intellectual
Property Collateral arising under foreign laws which have not been identified
by the Loan Parties as material to their Permitted Businesses and have not
been set forth on Schedule 6 of the Security Agreement), when financing
statements in appropriate form are filed in the offices specified on Schedule
4.19(a)-1 and such other filings and actions as are specified on Schedule 3 to
the Security Agreement are made and taken, the Security Agreement shall
constitute a fully perfected Lien (to the extent such Lien can be perfected by
filing or possession and, with respect to such other Collateral, such Lien
shall be perfected only to the extent perfection is required by the Security
Agreement) on, and security interest in, all right, title and interest of Wynn
Resorts Holdings and the Loan Parties in such Collateral and the proceeds and
products thereof, as security for the Obligations, in each case subject only
to Permitted Liens and prior and superior in right to any other Lien (except
Senior Permitted Liens). Schedule 4.19(a)-2 lists as of the Closing Date each
UCC Financing Statement that names Wynn Resorts Holdings or any Loan Party as
debtor and will remain on file after the Closing Date.
(b) Each of the Mortgages is effective to create in favor of
the Collateral Agent, for the benefit of the Secured Parties, a legal, valid
and binding Lien on, and security interest in, the Mortgaged Properties
described therein and proceeds and products thereof, and when the Mortgages
and related fixture filings are filed in the offices specified on Schedule
4.19(b), each such Mortgage shall constitute a fully perfected Lien on, and
security interest in, all of the Mortgaged Properties and the proceeds and
products thereof, as security for the Obligations, in each case subject only
to Permitted Liens and prior and superior in right to any other Lien (except
Senior Permitted Liens).
(c) The Intellectual Property Security Agreements are
effective to create in favor of the Collateral Agent, for the benefit of the
Secured Parties, a legal, valid and binding security interest in the
Intellectual Property Collateral described therein and proceeds and products
thereof. With respect to domestic Intellectual Property Collateral, upon (i)
the filing and recordation of the Intellectual Property Security Agreements in
the appropriate indexes of the United States Patent and Trademark Office
relative to patents and trademarks (within three (3) months after the Closing
Date), and the United States Copyright Office relative to copyrights (within
thirty (30) days after the Closing Date), together with payment of all
requisite fees and (ii) the filing of financing statements in appropriate form
for filing in the offices specified on Schedule 4.19(c) (which financing
statements have been duly completed and filed by the Collateral Agent in
accordance with applicable Requirements of Law) the Intellectual Property
Security Agreements shall constitute a perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in the
Intellectual Property Collateral and the proceeds and products thereof, as
security for the Obligations, in each case subject only to Permitted Liens and
prior and superior in right to any other Lien (except Senior Permitted Liens).
(d) The Control Agreements are effective to create in favor
of the Collateral Agent, for the benefit of the Secured Parties, a legal,
valid and binding security interest in the Accounts described therein and
proceeds and products thereof. Upon the execution of the Control Agreements,
the Control Agreements shall constitute perfected Liens on, and security
interests in, all right, title and interest of the Loan Parties in the
Accounts and the proceeds and products thereof, as security for the
Obligations, in each case subject only to Permitted Liens and prior and
superior in right to any other Lien (except Senior Permitted Liens).
4.20 Solvency. The Loan Parties taken as a whole, each
significant Loan Party and the Completion Guarantor are, and immediately after
giving effect to (a) the incurrence of all Indebtedness, (b) the use of the
proceeds of such Indebtedness (including, without limitation, the use of
proceeds of the extensions of credit made by the Lenders hereunder) and (c)
obligations being incurred in connection with the Operative Documents, will be
Solvent.
4.21 Senior Indebtedness. The Obligations (including,
without limitation, the guarantee obligations of each Guarantor under the Loan
Documents) constitute senior secured debt of each of the Loan Parties and
"Permitted Debt" under and as defined in the 2014 Notes Indenture. The 2014
Notes, when issued and paid for, will be the legal, valid and binding
obligations of the Borrower and Capital Corp., enforceable against the
Borrower and Capital Corp. in accordance with their terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability. The issuance and sale of the 2014 Notes by
Borrower and Capital Corp. did not violate any applicable federal or state
securities laws.
4.22 Regulation H. No Mortgage encumbers improved real
property which is located in an area that has been identified by the Secretary
of Housing and Urban Development as an area having special flood hazards and
in which flood insurance has been made available under the National Flood
Insurance Act of 1968.
4.23 Insurance. Each of the Loan Parties is insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which it
is engaged and in any event in accordance with Section 6.5. None of the Loan
Parties has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers at a cost that could not reasonably be
expected to have a Material Adverse Effect (other than as a result of general
market conditions).
4.24 Performance of Agreements; Material Contracts. No Loan
Party is in default in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in any of its Contractual
Obligations, and no condition exists that, with the giving of notice or the
lapse of time or both, would constitute such a default, in each case, except
where the consequences of such default or defaults, if any, could not
reasonably be expected to have a Material Adverse Effect. Schedule 4.24
contains a true, correct and complete list of the Material Contracts in effect
on the Closing Date.
4.25 Real Estate.
(a) As of the Closing Date, Schedule 4.25(a) sets forth a
true, complete and correct list of all Real Estate, including a brief
description thereof, including, in the case of leases, the street address,
landlord name, tenant name, current rent amount, lease date and lease
expiration date. The Borrower has delivered to the Administrative Agent true,
complete and correct copies of all such leases.
(b) All Real Estate and the current use thereof complies
with all applicable Requirements of Law (including building and zoning
ordinances and codes) and with all Insurance Requirements, and none of the
Loan Parties are non-conforming users of such Real Estate, except where
noncompliance or such non-conforming use could not, individually or
collectively, reasonably be expected to have a Material Adverse Effect.
(c) No Taking has been commenced or, to the Borrower's
knowledge, is contemplated with respect to all or any portion of any Real
Estate or for the relocation of roadways providing access to such Real Estate
except, in each case, as could not, individually or collectively, reasonably
be expected to have a Material Adverse Effect.
(d) Except for those disclosed in the Title Policies or as
set forth on Schedule 4.25(d), as of the Closing Date there are no current,
pending or, to the knowledge of the Borrower, proposed special or other
assessments (other than for ad valorem taxes) for public improvements or
otherwise affecting any Real Estate, nor are there any contemplated
improvements to such Real Estate that may result in such special or other
assessments. There are no current, pending or, to the knowledge of the
Borrower, proposed special or other assessments for public improvements or
otherwise affecting any Real Estate, nor are there any contemplated
improvements to such Real Estate that may result in such special or other
assessments, in any case that could reasonably be expected to result in a
material liability to any Loan Party.
(e) None of the Loan Parties has suffered, permitted or
initiated the joint assessment of any Real Estate with any other real property
constituting a separate tax lot. The Mortgaged Properties have been properly
subdivided or entitled to exception therefrom, and for all purposes the
Mortgaged Properties may be mortgaged, conveyed and, other than those with
respect to leasehold interests, otherwise dealt with as separate legal lots or
parcels.
(f) The use being made of all Real Estate is in conformity
with the certificate of occupancy and/or such other Permits for such Real
Estate and any other reciprocal easement agreements, restrictions, covenants
or conditions affecting such Real Estate except, in each case, to the extent
such non-conformity could not reasonably be expected to have a Material
Adverse Effect.
(g) There are no outstanding options to purchase or rights
of first refusal or restrictions on transferability affecting any Real Estate
(other than those set forth in or otherwise permitted under the Loan
Documents, including, without limitation, Permitted Liens).
(h) All Real Estate has or is expected to have adequate
rights of access to public ways and is or is expected to be served by
installed, operating and adequate water, electric, gas, telephone, sewer,
sanitary sewer and storm drain facilities, in each case as necessary to permit
the Real Estate to be used for its intended purposes. All roads necessary for
the utilization of the Real Estate for its current purpose have been or are
expected to be completed and dedicated to public use and accepted by all
Governmental Authorities or are the subject of access easements for the
benefit of such Real Estate.
(i) Except as could not, individually or collectively,
reasonably be expected to have a Material Adverse Effect, no building or
structure constituting Real Estate or any appurtenance thereto or equipment
thereon, or the use, operation or maintenance thereof, violates any
restrictive covenant affecting such Real Estate or encroaches on any easement
or on any property owned by others.
(j) Since the Closing Date, no portion of the Real Estate
has suffered any material damage by fire or other casualty loss that has not
heretofore been repaired and restored or is in the process of being repaired
and restored in accordance with Section 2.24.
4.26 Permits. Other than exceptions to any of the following
that could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect: (a) each of the Loan Parties has obtained and
holds all Permits required as of the date this representation is deemed made
in respect of all Real Estate and for any other Property otherwise then
currently operated by or on behalf of, or for the benefit of, such Person and
for the operation of its then current Permitted Businesses, (b) all such
Permits are in full force and effect, and each of the Loan Parties has
performed and observed all requirements of such Permits (to the extent
required to be performed by the date this representation is deemed made), (c)
no event has occurred which allows or results in, or after notice or lapse of
time would allow or result in, revocation, modification, suspension or
termination by the issuer thereof or in any other impairment of the rights of
the holder of any such Permit, (d) no such Permits, other than Permits
required by the Nevada Gaming Authorities, contain any restrictions, either
individually or in the aggregate, that are materially burdensome to any of the
Loan Parties, or to the operation of its Permitted Business or any Property
owned, leased or otherwise operated by such Person, (e) the Borrower has no
knowledge that any Governmental Authority is considering limiting, modifying,
suspending, revoking or renewing on burdensome terms any such Permit and (f)
each of the Loan Parties reasonably believes that each such Permit will be
timely renewed and complied with, without unreasonable expense or delay, and
that any such Permit not required to have been obtained by the date this
representation is deemed made that may be required of such Person is of a type
that is routinely granted on application and compliance with the conditions of
issuance (such conditions being ministerial or of a type satisfied in the
ordinary course of business, without undue expense or delay) and will be
timely obtained and complied with, without undue expense or delay.
4.27 Sufficiency of Interests. Other than those services to
be performed and materials to be supplied that can be reasonably expected to
be commercially available when and as required, the Loan Parties own or hold
under lease all of the property interests and have entered into all documents
and agreements necessary to develop, construct, complete, own and operate the
Project (including access to sufficient water rights) on the Mortgaged
Property, all in accordance with all Requirements of Law.
4.28 Utilities. All gas, water and electrical
interconnection and utility services necessary for the construction and
operation of the Project for its intended purposes are or will be available at
the Site as and when required.
4.29 Fiscal Year. The fiscal year of each of the Loan
Parties (including the Borrower) ends on December 31 of each calendar year.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Closing Date. The occurrence of the
Closing Date is subject to the satisfaction of each of the conditions
precedent described in Section 3.1 of the Disbursement Agreement (unless
waived by the Administrative Agent with the consent of all the Lenders). For
purposes of this Agreement, so long as the "Closing Transactions" occur prior
to, concurrently with, or immediately after the Closing Date (or, in the case
of the distribution to Wynn Resorts, through one or more Wholly Owned
Subsidiaries of Wynn Resorts, of an amount equal to the net cash proceeds
received by the Borrower in respect of an unwind payment or termination
payment of Hedge Agreements in existence on the date hereof, within three
Business Days of the Closing Date), the implementation of such Closing
Transactions shall be deemed to have occurred immediately prior to the Closing
Date and shall not constitute a breach or violation of any representation or
covenant set forth in this Agreement. For purposes of the foregoing, the term
"Closing Transactions" means all transactions contemplated to occur on the
Closing Date pursuant to the Offering Memorandum, dated as of November 22,
2004, relating to the offering by the Borrower and Capital Corp. of the 2014
Notes, including the Refinancing Transactions, and the unwind or termination
of the above described Hedge Agreements and distribution to Wynn Resorts.
5.2 Conditions to Extensions of Credit Pursuant to Section
2.5(a) or 3.2(a). The agreement of each Lender to make extensions of credit
requested to be made by it pursuant to Section 2.5(a) or 3.2(a), as
applicable, is subject to the satisfaction, prior to or concurrently with the
making of such extensions of credit, of the following conditions precedent:
(a) Notice. The Borrower and/or the Disbursement Agent, as
the case may be, shall have delivered to the Administrative Agent and, in the
case of Letters of Credit, the Issuing Lender the Notice of Advance Request
and related Advance Confirmation Notice with respect to the Loans and/or
Letters of Credit requested on such Borrowing Date, in each case in the form,
at the times and as required under Section 2.3 of the Disbursement Agreement
and in accordance with the procedures specified in Section 2.5(a) hereof in
the case of Loans and Section 3.2(a) hereof in the case of Letters of Credit.
(b) Drawdown Frequency for Loans: Loans shall be made no
more frequently than once every calendar month (unless such Loans are being
requested pursuant to Section 3.5, in which case such Loans shall be made at
such times as requested pursuant to Section 3.5).
(c) Satisfaction of Disbursement Agreement Conditions
Precedent. All conditions precedent described in Section 3.2 or 3.3 of the
Disbursement Agreement, as applicable to such extension of credit, shall have
been satisfied or waived in accordance with the terms of the Disbursement
Agreement.
5.3 Conditions to Extensions of Credit Requested Pursuant to
Section 2.5(b), 2.5(c) or 3.2(b). The agreement of each Lender to make
extensions of credit requested to be made by it pursuant to Sections 2.5(b),
2.5(c) or 3.2(b) is subject to the satisfaction, prior to or concurrently with
the making of such extensions of credit, of the following conditions
precedent:
(a) Notice. The Borrower shall have delivered (i) in the
case of the borrowing of Loans, a Notice of Borrowing to the Administrative
Agent in accordance with the procedures specified in Section 2.5(b) or 2.5(c)
as applicable and (ii) in the case of the issuance of Letters of Credit, a
Letter of Credit Request and the certificates, documents and other papers and
information delivered to it in connection therewith to the Issuing Lender in
accordance with the procedures specified in Section 3.2(b).
(b) Representations and Warranties. Each of the
representations and warranties made by the Completion Guarantor, Wynn Resorts
Holdings or any Loan Party in or pursuant to the Loan Documents shall be true
and correct in all material respects on and as of such date as if made on and
as of such date, except for representations and warranties expressly stated to
relate to a specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects only as of such
earlier date.
(c) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or immediately after giving effect to
the extensions of credit requested to be made on such date.
(d) No Material Adverse Effect. No events or circumstances
individually or collectively having a Material Adverse Effect shall have
occurred since the Closing Date (except as is no longer continuing).
Each borrowing of Loans by and issuance of a Letter of Credit on behalf of the
Borrower pursuant to Sections 2.5(b), 2.5(c) or 3.2(b) shall constitute a
representation and warranty by the Borrower as of the date of such extension
of credit that the conditions contained in this Section 5.3 have been
satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding (that has not been
cash collateralized pursuant to the terms of this Agreement) or any Loan or
other amount is owing to any Lender, any Arranger, any Manager or any Agent
hereunder or under any other Loan Document (other than contingent obligations
not then due and payable), the Borrower shall and shall cause each of the
other Loan Parties to, directly or indirectly:
6.1 Financial Statements. Furnish to the Administrative
Agent (which the Administrative Agent shall deliver to the Lenders):
(a) as soon as available, but in any event not later than
the earlier of (i) 10 days after the filing with the SEC of the Borrower's
Annual Report (or Wynn Resorts' Annual Report if no Annual Report for the
Borrower has been filed) on Form 10-K (or successor form thereto) with respect
to each Fiscal Year and (ii) 90 days after the end of each Fiscal Year, a copy
of the audited consolidated balance sheets of the Borrower and its
consolidated Subsidiaries as at the end of such Fiscal Year and the related
audited consolidated statements of income and of cash flows for such Fiscal
Year, setting forth in each case in comparative form the figures for the
previous Fiscal Year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope of the
audit, by Deloitte & Touche LLP or other independent certified public
accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than
the earlier of (i) 10 days after the filing with the SEC of the Borrower's
Quarterly Report (or Wynn Resorts' Quarterly Report if no Quarterly Report for
the Borrower has been filed) on Form 10-Q (or successor form thereto) with
respect to each of the first three quarterly periods of each Fiscal Year and
(ii) 45 days after the end of each of the first three quarterly periods of
each Fiscal Year, the unaudited consolidated balance sheets of the Borrower
and its consolidated Subsidiaries as at the end of such quarter and the
related unaudited consolidated statements of income and of cash flows for such
quarter and the portion of the Fiscal Year through the end of such quarter,
setting forth in each case in comparative form the figures for the previous
year, certified by a Responsible Officer as being fairly stated in all
material respects (subject to normal year-end audit adjustments); and
(c) on and after the Phase I Opening Date, as soon as
available, but in any event not later than 45 days after the end of each month
occurring during each Fiscal Year (other than the third, sixth, ninth and
twelfth such month), the unaudited consolidated balance sheets of the Borrower
and its consolidated Subsidiaries as at the end of such month and the related
unaudited consolidated statements of income and of cash flows for such month
and the portion of the Fiscal Year through the end of such month, setting
forth in each case in comparative form the figures for the previous year and
the figures from the applicable Projections, certified by a Responsible
Officer as being fairly stated in all material respects (subject to normal
year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects (in the case of financial statements delivered pursuant to
subsections (b) and (c) of this Section 6.1, subject to normal year-end audit
adjustments) and shall be prepared in reasonable detail and, in the case of
financial statements delivered pursuant to subsections (a) and (b) of this
Section 6.1, in accordance with GAAP applied consistently throughout the
periods reflected therein and with prior periods (except as approved by such
accountants or officer, as the case may be, and disclosed therein).
6.2 Certificates; Other Information. Furnish to the
Administrative Agent or, in the case of clauses (m) through (q) promptly give
written notice to the Administrative Agent (in each case which the
Administrative Agent shall deliver to the Lenders):
(a) concurrently with the delivery of the financial
statements referred to in Section 6.1(a), a certificate of the independent
certified public accountants reporting on such financial statements stating
that (i) their audit examination has included a review of the terms of this
Agreement as it relates to accounting matters, (ii) in making the examination
necessary therefor no knowledge was obtained of any Default or Event of
Default, except as specified in such certificate and (iii) based on their
audit examination nothing has come to their attention that causes them to
believe that the information contained in the certificates (including, without
limitation, the Compliance Certificate) delivered therewith pursuant to
subsection (b) below is not correct or stated in accordance with the terms of
this Agreement;
(b) concurrently with the delivery of any financial
statements pursuant to Section 6.1, (i) a certificate of a Responsible Officer
stating that such Responsible Officer has obtained no knowledge of the
existence of any Default or Event of Default except as specified in such
certificate, (ii) in the case of quarterly or annual financial statements, a
Compliance Certificate containing all information and calculations necessary
for determining compliance by the Loan Parties with the provisions of this
Agreement referred to therein as of the last day of the applicable fiscal
quarter or Fiscal Year, as the case may be and (iii) in the case of monthly
financial statements delivered after the Phase I Opening Date, a certificate
of a Responsible Officer setting forth all payments made by the Borrower with
respect to Affiliated Overhead Expenses during the 12-month period ending on
the last day of the applicable month (or such shorter period commencing on the
Phase I Opening Date if the Phase I Opening Date occurred during such 12-month
period) and stating that all such payments were in reimbursement of Affiliated
Overhead Expenses and permitted pursuant to Section 7.10(c);
(c) as soon as available, and in any event no later than the
Phase I Opening Date and 30 days prior to the beginning of each Fiscal Year
thereafter, a detailed consolidated budget of the Borrower and its
consolidated Subsidiaries for such Fiscal Year (or portion thereof from the
Phase I Opening Date through the end of such Fiscal Year) (including a
projected consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as of the end of such Fiscal Year, and the related consolidated
statements of projected cash flow, projected changes in financial position and
projected income), and, as soon as available, significant revisions, if any,
of such budget and projections with respect to such Fiscal Year (collectively,
the "Projections"), which Projections shall in each case be accompanied by a
certificate of a Responsible Officer stating that, at the time made, such
Projections are based on estimates, information and assumptions believed by
the Responsible Officer to be reasonable at the time made;
(d) within 45 days after the end of each fiscal quarter
after the Phase I Opening Date, a narrative discussion and analysis of the
financial condition and results of operations of each of the Loan Parties for
such fiscal quarter and for the period from the beginning of the then current
Fiscal Year (or if the then current Fiscal Year is the Fiscal Year in which
the Phase I Opening Date has occurred, from the Phase I Opening Date) to the
end of such fiscal quarter, as compared to the portion of the Projections
covering such periods and to the comparable periods of the previous Fiscal
Year;
(e) within five Business Days after the same are sent,
copies of all financial statements and reports that any Loan Party generally
sends to the holders of any class of its debt securities to the extent not
previously delivered to the Administrative Agent and, within five Business
Days after the same are filed, copies of all financial statements and reports
that any Loan Party may make to, or file with, the SEC;
(f) on the date of the occurrence thereof, notice that (i)
any or all of the First Lien Secured Obligations (other than the Obligations)
or Second Lien Secured Obligations have been accelerated or (ii) the agent,
lenders, trustee or the holders of or with respect to any First Lien Secured
Obligations (other than the Obligations) or Second Lien Secured Obligations,
as the case may be, has given notice that any or all such obligations are to
be accelerated;
(g) promptly, and in any event within ten Business Days
after any Material Contract, or any other contract or arrangement (or series
of related contracts or arrangements) pursuant to which the Loan Parties are,
or any one of them is, reasonably expected to incur obligations or liabilities
with a Dollar value in excess of $15,000,000 during the term of such contract
or arrangement, is terminated or amended or any new Material Contract or any
other such contract or arrangement is entered into, or upon becoming aware of
any material default by any Person under a Material Contract or any other such
contract or arrangement, a written statement describing such event with copies
of such amendments or new Material Contracts or such other contracts or
arrangements, and, with respect to any such terminations or material defaults,
an explanation of any actions being taken (if any) with respect thereto;
(h) promptly upon receipt, copies of all notices provided to
any Loan Party or their Affiliates pursuant to any documents evidencing First
Lien Secured Obligations (other than the Obligations) or Second Lien Secured
Obligations relating to material defaults or material delays and promptly upon
execution and delivery thereof, copies of all amendments to any of the
documents evidencing First Lien Secured Obligations (other than the
Obligations) or Second Lien Secured Obligations;
(i) to the extent not included in subsections (a) through
(h) above, no later than the date the same are required to be delivered
thereunder, copies of all agreements, documents or other instruments
(excluding legal opinions of counsel of the Loan Parties but including,
without limitation, (i) audited and unaudited, pro forma and other financial
statements, reports, forecasts, and projections, together with any required
certifications thereon by independent public auditors or officers of any Loan
Party or otherwise, (ii) press releases, (iii) statements or reports furnished
to any other holder of the securities of any Loan Party and (iv) regular,
periodic and special securities reports) that any Loan Party is required to
provide pursuant to the terms of the First Lien Secured Obligations (other
than the Obligations) or Second Lien Secured Obligations;
(j) promptly, and in any event within 30 days of the end of
each Fiscal Year after the Phase I Opening Date, deliver to the Administrative
Agent a certificate substantially in the form of Exhibit H hereto or otherwise
in form and substance reasonably satisfactory to the Administrative Agent in
consultation with the Insurance Advisor, certifying that the insurance
requirements of Section 6.5 have been implemented and are being complied with
in all material respects;
(k) within twenty days after the end of each fiscal quarter
of the Borrower, a schedule of all Proceedings involving an alleged liability
of, or claims against, any Loan Party equal to or greater than $2,500,000, and
promptly after request by the Administrative Agent such other information as
may be reasonably requested by the Administrative Agent to enable the
Administrative Agent and its counsel to evaluate any of such Proceedings;
(l) promptly, such additional financial and other
information as any Lender may from time to time reasonably request;
(m) upon any officer of a Loan Party obtaining knowledge
thereof, the occurrence of any Default or Event of Default;
(n) upon any officer of a Loan Party obtaining knowledge
thereof, the institution of any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration against or affecting any Loan Party, or any Property of a Loan
Party (collectively, "Proceedings") not previously disclosed in writing by the
Borrower to the Administrative Agent that, in any case (i) if adversely
determined, has a reasonable possibility of giving rise to a Material Adverse
Effect or (ii) seeks to enjoin or otherwise prevent the consummation of, or to
recover any damages or obtain relief as a result of, the transactions
contemplated hereby, or any material development in any such Proceeding;
(o) the following events, as soon as possible and in any
event within 30 days after any Loan Party knows thereof: (i) the occurrence of
any Reportable Event with respect to any Plan, a material failure to make any
required contribution to a Plan, the creation of any Lien in favor of the PBGC
or a Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings
or the taking of any other action by the PBGC, the Borrower, any other Loan
Party or any Commonly Controlled Entity or any Multiemployer Plan with respect
to the withdrawal from, or the termination, Reorganization or Insolvency of,
any Plan; and
(p) any other development or event that has had or could
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to clauses (m) through (o) of this Section shall be
accompanied by a statement of a Responsible Officer setting forth details of
the occurrence referred to therein and stating what action the relevant Loan
Party proposes to take with respect thereto.
6.3 Payment of Obligations. To the extent not otherwise
subject to valid subordination, standstill, intercreditor or similar
arrangements, pay, discharge or otherwise satisfy at or before maturity or
before they become delinquent, as the case may be, all its obligations of
whatever nature, except where (a) the amount or validity thereof is currently
being contested in good faith by appropriate proceedings and reserves in
conformity with GAAP with respect thereto have been provided on the books of
the relevant Loan Party or (b) the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
6.4 Conduct of Business and Maintenance of Existence, etc.
(a) Preserve, renew and keep in full force and effect its corporate or limited
liability company existence and in each case remain a Wholly Owned Subsidiary
of Wynn Resorts and (b) take all reasonable action to maintain all rights,
privileges, franchises, Permits and licenses necessary or desirable in the
normal conduct of its business, except, in each case, as otherwise permitted
by Section 7.4 and except, in the case of subsection (b) above, to the extent
that failure to do so could not (individually or in the aggregate) reasonably
be expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Leases; Insurance. (a) Keep all
material Property and systems useful and necessary in its business in good
working order and condition, ordinary wear and tear excepted.
(b) Maintain all rights of way, easements, grants,
privileges, licenses, certificates, and Permits necessary for the intended use
of any Real Estate, except any such item the loss of which, individually or in
the aggregate, could not reasonably be expected to materially and adversely
affect or interfere with the Permitted Business of any Loan Party or have a
material adverse effect on the Site.
(c) Comply with the terms of each lease or other grant of
Real Estate, including easement grants, so as to not permit any material
uncured default on its part to exist thereunder, except, in each case, where
noncompliance therewith could not reasonably be expected to materially and
adversely affect or interfere with the Permitted Business or Property of any
Loan Party.
(d) At all times maintain in full force and effect the
insurance policies and programs listed on Schedule 6.5(d).
(e) Deliver to the Administrative Agent on behalf of the
Secured Parties, (i) upon request of any Secured Party from time to time,
information as to the insurance carried, (ii) promptly following receipt
thereof, from any insurer, a copy of any notice of cancellation or material
change in coverage from that existing on the Closing Date, (iii) forthwith,
notice of any cancellation or nonrenewal of coverage by any Loan Party, unless
such insurance is replaced prior to the cancellation or non-renewal thereof in
accordance with Schedule 6.5(d) and (iv) promptly after such information is
available to any Loan Party, information as to any claim for an amount in
excess of $5,000,000 with respect to any property and casualty insurance
policy maintained by any such Loan Party.
6.6 Inspection of Property; Books and Records; Discussions.
(a) Keep in all material respects, adequate books of records and account in
which entries shall be made of all dealings and transactions in relation to
its business and activities to allow preparation of the financial statements
referred to in Section 6.1 in accordance with GAAP and (b) subject to any
Nevada Gaming Laws restricting such actions, permit representatives of any
Lender, coordinated through the Administrative Agent, to visit and inspect any
of its properties and examine and, at such Person's expense (unless a Default
or Event of Default is continuing, in which case at the Borrower's expense),
make abstracts from any of its books and records at any reasonable time and
upon reasonable prior notice and as often as may reasonably be desired and,
during normal business hours, to discuss the business, operations, properties
and financial and other condition of any Loan Party with officers of such Loan
Party and with their respective independent certified public accountants
(provided that a Responsible Officer may be present for any such discussions
with independent certified public accountants if the Borrower so chooses).
6.7 Aircraft Security. In the event that within 180 days
after the Closing Date the Borrower or the applicable Loan Party (or any trust
owned by any such Person that owns the Aircraft) does not incur Indebtedness
permitted by Section 7.2(c) secured by a Lien on the Aircraft as permitted
pursuant to Section 7.3(j), within 5 Business Days after the expiration of
such 180-day period take or cause to be taken all actions that the
Administrative Agent or the Collateral Agent reasonably deem necessary or
advisable to grant the Collateral Agent for the benefit of the Secured Parties
a perfected first priority security interest in the Aircraft and the leasehold
estate described under number 2 of Schedule 4.25(a), in each case subject only
to Permitted Liens, including, without limitation, all actions that would have
been required pursuant to Sections 6.10 had such Aircraft and leasehold estate
had been newly acquired on the last day of such 180-day period.
6.8 Environmental Laws; Permits. (a) Comply in all material
respects with, and use best efforts to ensure compliance in all material
respects by all tenants and subtenants, if any, with, all applicable
Environmental Laws and Environmental Permits, and obtain, maintain and comply
in all material respects with, and use best efforts to ensure that all tenants
and subtenants obtain, maintain and comply in all material respects with, any
and all licenses, approvals, notifications, registrations or Permits required
by applicable Environmental Laws except, in each case, to the extent any
non-compliance could not reasonably be expected to result in any material
liability to the Loan Parties or their Properties or in an inability of the
Loan Parties to perform their respective obligations in any material respect
under the Operative Documents.
(b) In the event that the Borrower or any other Loan Party
fails to comply with Section 6.8(a), the Administrative Agent may (i) retain,
at the Borrower's expense, an independent professional consultant to review
any environmental audits, investigations, analyses and reports relating to the
non-compliance and the conditions giving rise to the non-compliance and (ii)
conduct its own investigation of the non-compliance and the conditions giving
rise to the non-compliance. For purposes of conducting such a review and/or
investigation, the Administrative Agent and its agents, employees, consultants
and contractors shall have, upon reasonable prior notice, the right to enter
into or onto the Site or the Project and to perform such tests on such
property (including taking samples of soil, groundwater and suspected
asbestos-containing materials) as are reasonably necessary in connection
therewith. Any such investigation shall be conducted, unless otherwise agreed
to by a Loan Party and the Administrative Agent, during normal business hours
and shall be conducted so as not to unreasonably interfere with the ongoing
operations at the Site or the Project or to cause any damage or loss to any
property at the Site or the Project. Any report of any investigation conducted
at the request of the Administrative Agent pursuant to this Section will be
obtained and shall be used by the Administrative Agent and the Lenders for the
purposes of the Lenders' internal credit decisions, to monitor and police the
Loans and to protect the Lenders' security interests, if any, created by the
Loan Documents. A copy of such report shall be provided to the Borrower. The
Administrative Agent agrees that any such investigation shall be conducted by
an environmental consulting firm qualified and licensed by the State of
Nevada.
(c) Deliver to the Administrative Agent (i) as soon as
practicable following receipt thereof, copies in any Loan Party's possession
or any Loan Party's control of all material environmental audits,
investigations, analyses and reports of any kind or character, whether
prepared by personnel of the Loan Parties or by independent consultants,
governmental authorities or any other Persons (other than any Lender), with
respect to Environmental Matters at the Site or the Project or with respect to
any Environmental Claims, (ii) promptly upon the occurrence thereof, written
notice describing in reasonable detail (A) any Release required to be reported
to any federal, state or local governmental or regulatory agency under any
applicable Environmental Laws, (B) any remedial action taken by any Person in
response to (1) any Hazardous Materials Activities the existence of which has
a reasonable possibility of resulting in one or more Environmental Claims
against a Loan Party that could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect, or (2) any Environmental
Claims against a Loan Party that could reasonably be expected, individually or
in the aggregate, to result in a Material Adverse Effect, (iii) as soon as
practicable following the sending or receipt thereof by any Loan Party, a copy
of any and all written communications with respect to (A) any Environmental
Claims that could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect, (B) any Release required to be reported
to any federal, state or local governmental or regulatory agency and (C) any
request for information from any governmental agency indicating that such
agency is investigating whether any Loan Party may be potentially responsible
for any Hazardous Materials Activity, (iv) prompt written notice describing in
reasonable detail (A) any proposed acquisition of stock, assets, or property
by any Loan Party that could reasonably be expected to (1) expose any Loan
Party to, or result in, Environmental Claims that could reasonably be expected
to result, individually or in the aggregate, in a Material Adverse Effect or
(2) affect the ability of any Loan Party to maintain in full force and effect
all material Permits required under any Environmental Laws for their
respective operations and (B) any proposed action to be taken by any Loan
Party to modify current operations in a manner that could reasonably be
expected to subject such Loan Party to any material additional obligations or
requirements under any Environmental Laws that could reasonably be expected to
result, individually or in the aggregate, in a Material Adverse Effect, (v)
any notice that any Governmental Authority may condition approval of, or any
application for, any material Permit held by any Loan Party on terms and
conditions that are materially burdensome to such Loan Party, or to the
operation of any of its businesses or any property owned, leased or otherwise
operated by such Person, (vi) notice of any actions or proceedings of the
types described in Sections 4.17(c) through (e), (vii) as soon as practicable,
all documents submitted to, filed with or received from any Governmental
Authority, including, without limitation, the Nevada Public Utilities
Commission and the State of Nevada, Division of Water Resources, with respect
to any material water permits held by any Loan Party or otherwise utilized or
expected to be utilized with respect to the Project and (viii) with reasonable
promptness, such other documents and information as from time to time may be
reasonably requested by the Administrative Agent in relation to any matters
disclosed pursuant to this Section 6.8(c).
6.9 Dissolution of the Completion Guarantor. As is
reasonably practicable, following the Phase II Final Completion Date,
liquidate, wind up and dissolve the Completion Guarantor. After the Completion
Guarantor is dissolved in accordance with this Section 6.9, all references to
the Completion Guarantor contained in this Agreement or any other Loan
Document shall be deemed deleted and any provisions with respect to or
affecting the Completion Guarantor (whether representations, warranties,
covenants or otherwise) shall be of no further force or effect.
6.10 Additional Collateral, Discharge of Liens, etc. (a)
With respect to any Property acquired after the Closing Date by any Loan Party
as to which the Collateral Agent, for the benefit of the Secured Parties, does
not have a perfected security interest (other than (I) Property described in
paragraph (b) below, (II) subject to Section 6.7, the Aircraft, (III) subject
to Section 6.11(b), cash and cash equivalents, (IV) any Macau Loans made
directly by a Loan Party to Wynn Macau in accordance with Section 7.8(l) and
(V) any other Excluded Assets), subject to compliance with applicable Nevada
Gaming Laws and restrictions on the granting of Liens permitted pursuant to
Section 7.13, promptly (and in any event within five Business Days following
the date of such acquisition or such longer period as may be reasonably
approved by the Administrative Agent) (i) execute and deliver to the
Collateral Agent such amendments to the Security Agreement or such other
documents as the Administrative Agent or the Collateral Agent reasonably deems
necessary or advisable to grant to the Collateral Agent, for the benefit of
the Secured Parties, a security interest in such Property and (ii) take all
actions reasonably necessary or advisable to grant to the Collateral Agent,
for the benefit of the Secured Parties, a perfected first priority security
interest in such Property (subject to Permitted Liens), including, without
limitation, the filing of UCC financing statements in such jurisdictions as
may be reasonably required by the Security Agreement or by law or as may be
requested by the Administrative Agent or the Collateral Agent. In addition to
the foregoing, in the event any such Property acquired after the Closing Date
consists of Real Estate or other Property with respect to which a recording in
the real property records of an appropriate jurisdiction is required or
advisable in order to perfect a security interest therein, promptly (and, in
any event, within five Business Days following the date of such acquisition or
such longer period approved by the Administrative Agent) (A) execute and
deliver a mortgage, substantially in the form of the Mortgages (with such
modifications, if any, as are necessary to comply with Requirements of Law or
that the Administrative Agent or the Collateral Agent may reasonably request),
such mortgage to be recorded in the real property records of the appropriate
jurisdiction, or execute and deliver to the Collateral Agent for recording a
supplement to an existing Mortgage, in either case pursuant to which the
applicable Loan Party grants to the Collateral Agent on behalf of the Secured
Parties a Lien on such Real Estate subject only to Permitted Liens, (B)
provide the Collateral Agent on behalf of the Secured Parties with a
commitment to issue title and extended coverage insurance covering such Real
Estate in an amount at least equal to the fair market value of such Real
Estate, and in any event consistent with (except for coverage amount) the
title and extended coverage insurance covering the Site obtained pursuant to
the Disbursement Agreement, or obtain a commitment to issue an appropriate
endorsement or supplement to an existing Title Policy (in the case of an
appropriate endorsement or supplement to an existing Title Policy, without any
increase in the coverage amount of such Title Policy), (C) execute and deliver
an environmental indemnity agreement with respect to such Real Estate,
substantially in the form of the Indemnity Agreements (with such
modifications, if any, as are necessary to comply with Requirements of Law or
that the Administrative Agent may reasonably request) and (D) execute and/or
deliver such other documents or provide such other information in furtherance
thereof as the Administrative Agent or the Collateral Agent may reasonably
request, including delivering documents and taking such other actions which
would have been required under Section 3.1 of the Disbursement Agreement if
such Real Estate were part of the Mortgaged Property on the Closing Date.
(b) With respect to any new Subsidiary created or acquired
after the Closing Date by any Loan Party, subject to compliance with Nevada
Gaming Laws, promptly (and in any event within five Business Days following
the date of such acquisition or creation or such longer period as may be
reasonably approved by the Administrative Agent) (i) execute and deliver to
the Collateral Agent such amendments to (if any) the Security Agreement as the
Administrative Agent or the Collateral Agent reasonably deems necessary or
advisable to grant to the Collateral Agent, for the benefit of the Secured
Parties, a perfected first priority security interest in the Capital Stock of
such new Subsidiary (subject to Permitted Liens), (ii) deliver to the
Collateral Agent the certificates (if any) representing such Capital Stock,
together with undated stock or similar powers, in blank, executed and
delivered by a duly authorized officer of such Loan Party, as applicable,
(iii) cause such new Subsidiary (A) to become a party to the Guarantee, the
Security Agreement, the Subordinated Intercompany Note and, to the extent
applicable, the Intellectual Property Security Agreements and (B) to take such
actions reasonably necessary or advisable to grant to the Collateral Agent for
the benefit of the Secured Parties a perfected first priority security
interest (subject to Permitted Liens) in the Collateral described in the
Security Agreement and, to the extent applicable, the Intellectual Property
Security Agreements with respect to such new Subsidiary, including, without
limitation, the recording of instruments in the United States Patent and
Trademark Office and the United States Copyright Office, the execution and
delivery by all necessary Persons of Control Agreements and the filing of UCC
financing statements in such jurisdictions as may be required by the Security
Agreement, the Intellectual Property Security Agreements or by law or as may
be reasonably requested by the Administrative Agent or the Collateral Agent,
(iv) if requested by the Administrative Agent or the Collateral Agent, deliver
to the Collateral Agent legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent and (v) execute and/or
deliver such other documents or provide such other information as the
Administrative Agent or the Collateral Agent may reasonably request, including
delivering documents and taking such other actions which would have been
required under Section 3.1 of the Disbursement Agreement if such new
Subsidiary were a Loan Party on the Closing Date. In addition to the
foregoing, in the event any such new Subsidiary owns or otherwise has
interests in any Real Estate or other Property with respect to which a
recording in the real property records of an appropriate jurisdiction is
required or advisable in order to perfect a security interest therein,
promptly (and, in any event, within five Business Days following the date of
such acquisition or such longer period as may be approved by the
Administrative Agent) (1) execute and deliver a mortgage, substantially in the
form of the Mortgages (with such modifications, if any, as are necessary to
comply with Requirements of Law or that the Administrative Agent or the
Collateral Agent may reasonably request), such mortgage to be recorded in the
real property records of the appropriate jurisdiction, or execute and deliver
to the Collateral Agent for recording a supplement to an existing Mortgage, in
either case pursuant to which the applicable Loan Party grants to the
Collateral Agent on behalf of the Secured Parties a Lien on such Real Estate
subject only to Permitted Liens, (2) provide the Collateral Agent on behalf of
the Secured Parties a commitment to issue title and extended coverage
insurance covering such Real Estate in an amount at least equal to the fair
market value of such Real Estate, and in any event consistent with (except for
coverage amount) the title and extended coverage insurance covering the Site
obtained pursuant to the Disbursement Agreement, or obtain a commitment to
issue an appropriate endorsement or supplement to an existing Title Policy (in
the case of an appropriate endorsement or supplement to an existing Title
Policy, without any increase in the coverage amount of such Title Policy), (3)
execute and deliver an environmental indemnity agreement with respect to such
Real Estate, substantially in the form of the Indemnity Agreements (with such
modifications, if any, as are necessary to comply with Requirements of Law or
that the Administrative Agent may reasonably request) and (4) execute and/or
deliver such other documents or provide such other information in furtherance
thereof as the Administrative Agent or the Collateral Agent may reasonably
request, including delivering documents and taking such other actions which
would have been required under Section 3.1 of the Disbursement Agreement if
such Real Estate were part of the Mortgaged Property on the Closing Date.
(c) Notwithstanding anything to the contrary in this Section
6.10, paragraphs (a) and (b) of this Section 6.10 shall not apply to any
Property or new Subsidiary created or acquired after the Closing Date, as
applicable, as to which the Administrative Agent has determined in its sole
discretion that the collateral value thereof is insufficient to justify the
difficulty, time and/or expense of obtaining either (i) a perfected security
interest therein or (ii) with respect to Real Estate, title and extended
coverage insurance.
6.11 Use of Proceeds and Revenues. (a) Use the proceeds of
the Loans and request the issuance of Letters of Credit, only for the purposes
specified in Section 4.16; provided, that (i) no more than an aggregate of
$276,000,000 of proceeds of extensions of credit hereunder shall be applied
toward Project Costs with respect to the Phase I Project, (ii) no more than an
aggregate of $122,000,000 of proceeds of extensions of credit hereunder shall
be applied toward the funding of the Macau Loan and (iii) the aggregate
proceeds of extensions of credit hereunder applied toward Project Costs with
respect to the Phase II Project prior to the later of the Phase II Approval
Date and the Phase I Opening Date shall not exceed at any time the difference
between (A) $100,000,000 and (B) the aggregate proceeds of the 2014 Notes
applied toward Project Costs with respect to the Phase II Project at such time
(it being agreed that any extensions of credit hereunder or proceeds of the
2014 Notes applied on Closing Date in order to consummate the Refinancing
Transaction shall not be deemed expended in furtherance of Project Costs with
respect to the Phase II Project). For purposes of Section 6.11(a)(i), (x)
until such time as the 2014 Notes Proceeds Account has been Exhausted, all
Advances made from the Bank Proceeds Account, the 2014 Notes Proceeds Account
and from the Revolving Credit Facility in respect of Project Costs related to
the Phase I Project shall be deemed to have been drawn in accordance with the
ratio set forth in Section 2.4.1(b) of the Disbursement Agreement and (y) the
Company may allocate Advances from the Company's Funds Account between the
Phase I Project and the Phase II Project at its discretion.
(b) Deposit in a Funding Account and, until utilized,
maintain on deposit in a Funding Account, all cash and cash equivalents other
than (i) On-Site Cash, (ii) cash and cash equivalents required pursuant to
Nevada Gaming Laws or by Nevada Gaming Authorities to be deposited into Gaming
Reserves, (iii) cash or cash equivalents to be applied to Project Costs for
the Phase II Project pursuant to Section 5.1.4 of the Disbursement Agreement
and (iv) cash or cash equivalents that in the ordinary course of business are
not maintained on deposit in a bank or other deposit or investment account
pending application toward working capital or other general corporate purposes
of the Loan Parties.
6.12 Compliance with Laws, Project Documents, etc.; Permits.
(a) Comply with all Requirements of Law, noncompliance with which could
reasonably be expected to cause, individually or in the aggregate, a Material
Adverse Effect and comply in all material respects with its Governing
Documents.
(b) Comply, duly and promptly, in all respects with its
respective obligations and enforce all of its respective rights under all
Project Documents, except where the failure to comply could not reasonably be
expected to have a Material Adverse Effect.
(c) From time to time obtain, maintain, retain, observe,
keep in full force and effect and comply with the terms, conditions and
provisions of all Permits as shall now or hereafter be necessary under
applicable laws, except to the extent the noncompliance therewith could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. From time to time maintain, retain, observe and keep in full
force and effect and comply with all material terms conditions and provisions
of all material water permits held by any Loan Party or otherwise utilized or
expected to be utilized with respect to the Project.
6.13 Further Assurances. From time to time execute and
deliver, or cause to be executed and delivered, such additional instruments,
certificates or documents, and take all such actions, as the Administrative
Agent may reasonably request, for the purposes of implementing or effectuating
the provisions of this Agreement and the other Loan Documents, or of more
fully perfecting or renewing the rights of the Collateral Agent and the
Secured Parties with respect to the Collateral (or with respect to any
additions thereto or replacements or proceeds or products thereof or with
respect to any other property or assets hereafter acquired by any Loan Party
which may be deemed to be part of the Collateral) pursuant hereto or thereto.
Upon the exercise by the Administrative Agent or any Lender of any power,
right, privilege or remedy pursuant to this Agreement or the other Loan
Documents which requires any consent, approval, recording, qualification or
authorization of any Governmental Authority, the Borrower shall, or shall
cause any other applicable Loan Party to, execute and deliver, or will cause
the execution and delivery of, all applications, certifications, instruments
and other documents and papers that the Administrative Agent or such Lender
may be required to obtain from the Borrower or the applicable Loan Party for
such governmental consent, approval, recording, qualification or
authorization. In the event that, notwithstanding the covenants contained in
Article 7, a Lien not otherwise permitted under this Agreement shall encumber
the Mortgaged Property or any portion thereof, the relevant Loan Party shall
promptly discharge or cause to be discharged by payment to the lienor or lien
claimant or promptly secure removal by bonding or deposit with the county
clerk or otherwise or, at the Administrative Agent's option, and if obtainable
promptly obtain title insurance against, any such Lien or mechanics' or
materialmen's claims of lien filed or otherwise asserted against the Mortgaged
Property or any other item of Collateral or any portion thereof within 60 days
after the date of notice thereof; provided, that the provisions of this
Section 6.13 (and compliance therewith) shall not be deemed to constitute a
waiver of any of the provisions of Article 7. Each of the Loan Parties shall
fully preserve the Lien and the priority of each of the Mortgages and the
other Security Documents without cost or expense to the Administrative Agent,
the Collateral Agent or the Secured Parties. If any Loan Party fails to
promptly discharge, remove or bond off any such Lien or mechanics' or
materialmen's claim of lien as described above, which is not being contested
by the applicable Loan Party in good faith by appropriate proceedings promptly
instituted and diligently conducted, within 30 days after the receipt of
notice thereof, then the Administrative Agent may, but shall not be required
to, procure the release and discharge of such Lien, mechanics' or
materialmen's claim of lien and any judgment or decree thereon, and in
furtherance thereof may, in its sole discretion, effect any settlement or
compromise with the lienor or lien claimant or post any bond or furnish any
security or indemnity as the Administrative Agent, in its sole discretion, may
elect. In settling, compromising or arranging for the discharge of any Liens
under this subsection, the Administrative Agent shall not be required to
establish or confirm the validity or amount of the Lien. The Borrower agrees
that all costs and expenses expended or otherwise incurred pursuant to this
Section 6.13 (including reasonable attorneys' fees and disbursements) by the
Administrative Agent shall constitute Obligations and shall be paid by the
Borrower in accordance with the terms hereof.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding (that has not been
cash collateralized pursuant to the terms of this Agreement) or any Loan or
other amount is owing to any Lender, any Arranger, any Manager or any Agent
hereunder or under any other Loan Document (other than contingent obligations
not then due and payable), the Borrower shall not, and shall not permit any of
the other Loan Parties to, directly or indirectly:
7.1 Financial Condition Covenants.
(a) Consolidated Leverage Ratio - Pre-Phase II Opening Date.
(i) In the event that the Phase II Commitment
Sunset Date occurs without the Phase II Approval Date having occurred, permit
the Consolidated Leverage Ratio (calculated in accordance with Section 1.3) as
at the last day of any period of four full consecutive fiscal quarters (or
such shorter period ending on any Quarterly Date set forth below and beginning
on the first day of the fiscal quarter ending on the first Quarterly Date)
ending on any Quarterly Date set forth below to exceed the ratio set forth
below opposite such Quarterly Date:
Consolidated
Quarterly Date Leverage Ratio
First and Second Quarterly Dates 5.75:1
- --------------------------------------------------------------------------------
Third and Fourth Quarterly Dates 5.25:1
Fifth and Sixth Quarterly Dates 5.00:1
Seventh Quarterly Date 4.75:1
Eighth Quarterly Date 4.50:1
Ninth and Tenth Quarterly Dates 4.25:1
Eleventh and Twelfth Quarterly Dates 4.00:1
Thirteenth Quarterly Date and each Quarterly Date thereafter 3.75:1
(ii) In the event that the Phase II Approval Date
occurs on or prior to the Phase II Commitment Sunset Date, permit the
Consolidated Leverage Ratio (calculated in accordance with Section 1.3) as at
the last day of any period of four full consecutive fiscal quarters (or such
shorter period ending on any Quarterly Date set forth below and beginning on
the first day of the fiscal quarter ending on the first Quarterly Date) ending
on any Quarterly Date set forth below to exceed the ratio set forth below
opposite such Quarterly Date; provided that in no event shall this Section
7.1(a)(ii) apply on and after the Initial Phase II Calculation Date:
Consolidated
Quarterly Date Leverage Ratio
- --------------------------------------------------------------------------------
First, Second and Third Quarterly Dates 6.00:1
Fourth and Fifth Quarterly Dates 5.50:1
Sixth and Seventh Quarterly Dates 5.00:1
Eighth Quarterly Date and each Quarterly Date thereafter 4.75:1
until the Initial Phase II Calculation Date
(b) Minimum Consolidated EBITDA - Post-Phase II Opening Date. In the event the
Phase II Approval Date occurs on or prior to the Phase II Commitment Sunset
Date, permit Consolidated EBITDA of the Borrower for any period of four full
consecutive fiscal quarters ending on the Initial Phase II Calculation Date or
any of the immediately succeeding two Quarterly Date to be less than the
amount set forth below opposite such Quarterly Date:
Consolidated
Quarterly Date EBITDA
- -------------------------------------------------------------------------------
Initial Phase II Calculation Date $325,000,000
First Quarterly Date after the Initial Phase II $350,000,000
Calculation Date
Second Quarterly Date after the Initial Phase II $375,000,000
Calculation Date
(c) Consolidated Leverage Ratio - Post-Phase II Opening
Date. In the event the Phase II Approval Date occurs on or prior to the Phase
II Commitment Sunset Date, permit the Consolidated Leverage Ratio as at the
last day of any period of four full consecutive fiscal quarters ending on the
third Quarterly Date after the Initial Phase II Calculation Date or any
Quarterly Date thereafter to exceed the ratio set forth below opposite such
Quarterly Date:
Consolidated
Quarterly Date Leverage Ratio
- --------------------------------------------------------------------------------
Third Quarterly Date after the Initial Phase II Calculation
Date and each Quarterly Date thereafter through and including
September 30, 2008 4:50:1
Quarterly Dates from December 31, 2008 through and including 4.00:1
September 30, 2009
Quarterly Dates from and after December 31, 2009 3.75:1
(d) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio for any period of four full consecutive
fiscal quarters (or such shorter period ending on any Quarterly Date set forth
below and beginning on the first day of the fiscal quarter ending on the first
Quarterly Date) ending on any Quarterly Date set forth below to be less than
the ratio set forth below opposite such Quarterly Date:
Consolidated
Interest Coverage
Quarterly Date Ratio
- --------------------------------------------------------------------------------
Quarterly Dates on or prior to September 30, 2007 2.25:1
Quarterly Dates from and after December 31, 2007 2.50:1
7.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness created under any Loan Document;
(b) Unsecured Indebtedness of any Loan Party (other than
Capital Corp. and Wynn Golf, unless the proceeds of such Indebtedness are
necessary for the organizational maintenance of any such party) to any other
Loan Party; provided, that in each case such Indebtedness is evidenced by, and
subject to the terms and conditions of, the Subordinated Intercompany Note;
(c) Unless a Lien shall have been previously granted to the
Secured Parties on the Aircraft to secure the Obligations in accordance with
Section 6.7, Indebtedness secured by Liens permitted by Section 7.3(j) in an
aggregate principal amount not less than 50% and not more than 100% of the
fair market value of the Aircraft determined at the time of the incurrence of
such Indebtedness;
(d) Indebtedness (other than the Indebtedness referred to in
Section 7.2(f)) outstanding on the date hereof and listed on Schedule 7.2(d)
and any refinancings, refundings, renewals or extensions thereof (without any
increase in the principal amount thereof or any shortening of the maturity of
any principal amount thereof);
(e) Unsecured Guarantee Obligations made in the ordinary
course of business by any Loan Party of obligations of the Borrower or any
other Loan Party (other than Capital Corp. and Wynn Golf);
(f) (i) Indebtedness of the Borrower and Capital Corp.
created under the 2010 Notes Indenture in respect of the 2010 Notes in an
aggregate principal amount not to exceed $13,131,635.00 (reduced by any
principal payments from time to time made thereon) and Guarantee Obligations
of any Loan Party in respect thereto; and (ii) Indebtedness of the Borrower
and Capital Corp. created under the 2014 Notes Indenture in respect of the
2014 Notes in an aggregate principal amount, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this subclause (ii), not to exceed
$1,300,000,000 (reduced by any principal payments from time to time made
thereon) and Guarantee Obligations of any Loan Party in respect thereto;
(g) Indebtedness (including, without limitation, Capital
Lease Obligations) secured by Liens permitted by Section 7.3(s) in an
aggregate principal amount not to exceed $30,000,000 at any time outstanding;
(h) Indebtedness to any employees of Wynn Resorts or its
Wholly Owned Subsidiaries (or their estates or trusts) incurred in connection
with the repurchase, redemption or other acquisition or retirement for value
of Capital Stock of Wynn Resorts permitted pursuant to Section 7.6(e);
provided, that such Indebtedness outstanding at any time, when aggregated with
the aggregate of all payments previously made under Section 7.6(e), will not
exceed $10,000,000;
(i) Subordinated Debt not to exceed an aggregate of
$25,000,000 at any time outstanding; provided, that the Net Cash Proceeds of
such Subordinated Debt shall be applied within two Business Days of the
receipt of such proceeds to the prepayment of the Obligations in accordance
with Section 2.12(a);
(j) prior to the Phase I Final Completion Date (to the
extent related to the development and construction of the Phase I Project) and
during the period from the Phase II Approval Date until the Phase II Final
Completion Date (the extent related to the development and construction of the
Phase II Project), Indebtedness in respect of performance bonds, guaranties,
commercial or standby letters of credit (other than Letters of Credit),
bankers' acceptances or similar instruments issued by a Person other than Wynn
Resorts or any Subsidiary of Wynn Resorts for the benefit of a trade creditor
of any Loan Party, in an aggregate amount not to exceed $40,000,000 at any
time outstanding so long as (i) such Indebtedness is incurred in the ordinary
course of business and (ii) the obligations of any Loan Party, as the case may
be, supported by such performance bonds, guaranties, trade letters of credit,
bankers' acceptances or similar instruments (1) consist solely of payment
obligations with respect to costs incurred in accordance with the applicable
Project Budget which would otherwise be permitted to be paid by the applicable
Loan Party pursuant to the Disbursement Agreement, (2) are secured and (3) are
secured solely by Liens permitted by Section 7.3(u);
(k) on and after the date that is 60 days prior to the
reasonably anticipated Phase I Opening Date, Indebtedness in respect of
performance bonds, guaranties, commercial or standby letters of credit (other
than Letters of Credit), bankers' acceptances or similar instruments issued by
a Person other than Wynn Resorts or any Affiliate of Wynn Resorts for the
benefit of a trade creditor of any Loan Party, in an aggregate amount not to
exceed $25,000,000 at any time outstanding so long as such Indebtedness (i) is
incurred in the ordinary course of business; (ii) does not consist of payment
obligations with respect to Project Costs related to the Phase II Project; and
(iii) if secured, are secured solely by Liens permitted by Section 7.3(v);
(l) Indebtedness, the Net Cash Proceeds of which are used
for the development, construction and opening of an Additional Entertainment
Facility and/or Retail Facility, in an aggregate principal amount (or original
accreted value, as applicable) at any time not to exceed 66?% of the aggregate
cost of such Additional Entertainment Facility and/or Retail Facility;
provided that net cash proceeds have been received by the Borrower as a
contribution to its equity capital in an amount equal to at least 33?% of the
projected aggregate cost of such Additional Entertainment Facility and/or
Retail Facility, which amount has been irrevocably committed substantially
concurrent with the date of incurrence of such Indebtedness for use to
develop, construct and open such Additional Entertainment Facility and/or
Retail Facility; provided, further, the Borrower shall cause equity capital to
be contributed to the Borrower such that 33?% of the costs related to the
Additional Entertainment Facility and/or Retail Facility shall have been
funded with equity capital; and
(m) additional Indebtedness in an aggregate principal amount
(for all Loan Parties) not to exceed $40,000,000 at any time outstanding.
7.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its Property, whether now owned or hereafter
acquired, except for:
(a) Liens for taxes, assessments or governmental charges or
claims not yet due and payable or which are being contested in good faith by
appropriate proceedings, provided that adequate reserves with respect thereto
are maintained on the books of the applicable Loan Party, to the extent
required by GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
suppliers' repairmen's or other like Liens arising in the ordinary course of
business for amounts which are not overdue for a period of more than 30 days
or that are being contested in good faith by appropriate proceeding (and, in
any event, there has been no commencement of the sale of any portion of the
Collateral on account of such Lien); provided, that adequate reserves with
respect thereto are maintained on the books of the applicable Loan Party, to
the extent required by GAAP;
(c) Liens arising in connection with workers' compensation,
unemployment insurance, old age pensions and social security benefits or other
similar benefits;
(d) Liens incurred on deposits made to secure the
performance of bids, tenders, trade contracts (other than for borrowed money),
leases, statutory obligations, appeal bonds, indemnities, release bonds, fee
and expense arrangements with trustees and fiscal agents and other obligations
of a like nature incurred in the ordinary course of business;
(e) easements, covenants, rights-of-way, restrictions,
subdivisions, parcelizations, encroachments and other similar encumbrances and
other minor defects and irregularities in title that, in the aggregate, are
not substantial in amount, which do not in any case materially detract from
the value of the Real Estate including, without limitation, those matters set
forth on any title policy provided to the Administrative Agent subsequent to
the Closing Date with respect to Real Estate acquired subsequent to the
Closing Date;
(f) Liens in existence on the date hereof listed on Schedule
7.3(f); provided, that no such Lien is spread to cover any additional Property
(other than proceeds of the sale or other disposition thereof) after the
Closing Date;
(g) Liens created pursuant to the Security Documents or
otherwise securing the Obligations (including Liens created thereunder
securing Specified Hedge Agreements);
(h) leases and subleases in each case permitted under the
Loan Documents, and any leasehold mortgage in favor of any party financing the
lessee under any such lease or sublease; provided, that no Loan Party is
liable for the payment of any principal of, or interest, premiums or fees on,
such financing;
(i) Liens created by the Golf Course Lease;
(j) Liens securing Indebtedness permitted under Section
7.2(c); provided that such Liens attach only to the Aircraft, the beneficial
interest of any trust which owns the Aircraft and/or such Loan Party that
either directly owns the Aircraft or owns the beneficial interest in any trust
that owns the Aircraft (in the case of any such Loan Party, so long as such
Loan Party owns no material Property other than the Aircraft and/or the
beneficial interest of any such trust) and any proceeds thereof;
(k) Liens securing Indebtedness permitted under Section
7.2(f)(ii);
(l) Liens in respect of an agreement to Dispose of any
Property, to the extent such Disposition is permitted by Section 7.4 or 7.5;
(m) so long as the Disbursement Agreement is in effect, any
"Permitted Liens" under the Disbursement Agreement;
(n) any attachment, judgment, writs or warrants of
attachment or other similar Liens not constituting an Event of Default under
Section 8.1(h);
(o) Permitted Encumbrances;
(p) Liens arising from the filing of UCC financing
statements relating solely to leases;
(q) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in connection
with the importation of goods;
(r) any zoning or similar law or right reserved to or vested
in any Governmental Authority to control or regulate the use of any Real
Estate;
(s) Liens on any Property (including the interest of a
lessee under a Capitalized Lease or Synthetic Lease Obligation) securing
Indebtedness incurred or assumed for the purpose of financing (or financing
the purchase price within 180 days after the respective purchase of Property)
all or any part of the acquisition, design, installation, construction, repair
or improvement cost of such Property; provided, that (i) such Liens do not at
any time encumber any Property other than the Property (and proceeds of the
sale or other Disposition thereof and the proceeds (including insurance
proceeds), products, rents, profits, accession and replacements thereof or
thereto) financed by such Indebtedness, (ii) such Lien either exists on the
date hereof or is created in connection with the acquisition, design,
installation, construction, repair or improvement of such Property, (iii) the
Indebtedness secured by any such Lien does not exceed 100% of the fair market
value of such Property and is otherwise permitted to be incurred pursuant to
Section 7.2(g) and (iv) the Property financed by such Indebtedness is not of a
type that will become affixed to the Project such that the removal thereof
could reasonably be expected to physically damage the Project in any material
respect;
(t) Liens in respect of customary rights of set off,
revocation, refund or chargeback or similar rights under deposit,
disbursement, concentration account agreements or under the UCC or arising by
operation of law of banks or other financial institutions where any Loan Party
maintains deposit, disbursement or concentration accounts in the ordinary
course of business permitted by this Agreement;
(u) Liens on cash disbursed pursuant to the Disbursement
Agreement and deposited with, or held for the account of, any Loan Party
securing reimbursement obligations under performance bonds, guaranties,
commercial or standby letters of credit, bankers' acceptances or similar
instruments permitted under Section 7.2(j), granted in favor of the issuers of
such performance bonds, guaranties, commercial letters of credit or bankers'
acceptances, so long as (i) any cash disbursed to secure such reimbursement
obligations is invested (if at all) in Permitted Securities only (to the
extent the Borrower has the right to direct the investment thereof) and is
segregated from the Loan Parties' general cash accounts so that such Liens
attach only to such cash and Permitted Securities and (ii) the amount of cash
and/or Permitted Securities secured by such Liens is not less than the amount
of Indebtedness secured thereby and in any event does not exceed 110% of the
amount of the Indebtedness secured thereby (ignoring any interest earned or
paid on such cash and any dividends or distributions declared or paid in
respect of such Permitted Investments);
(v) Liens on cash deposited with, or held for the account
of, any Loan Party securing reimbursement obligations under performance bonds,
guaranties, commercial or standby letters of credit, bankers' acceptances or
similar instruments permitted under Section 7.2(k), granted in favor of the
issuers of such performance bonds, guaranties, commercial letters of credit or
bankers' acceptances, so long as (i) any cash used as security for such
reimbursement obligations is invested (if at all) in Cash Equivalents only (to
the extent the Borrower has the right to direct the investment thereof) and is
segregated from the Loan Parties' general cash accounts so that such Liens
attach only to such cash and Cash Equivalents and (ii) the amount of cash
and/or Cash Equivalents secured by such Liens does not exceed 110% of the
amount of the Indebtedness secured thereby (ignoring any interest earned or
paid on such cash and any dividends or distributions declared or paid in
respect of such Cash Equivalents);
(w) Liens created or expressly contemplated by the Affiliate
Agreements, in each case as in effect on the date hereof, so long as such
Liens do not secure Indebtedness;
(x) Liens securing Indebtedness permitted under Section
7.2(f)(i); provided that such Liens attach only to the 2010 Notes Satisfaction
Proceeds;
(y) in the event any Macau Loans are made directly to Wynn
Macau in accordance with Section 7.8(l), Liens of any lenders or other
providers of debt, loan facilities or stand-by facilities to Wynn Macau on
such Macau Loans and the proceeds thereof (in each case only to the extent
that the Macau Loans are effectively subordinated in right of payment to the
Indebtedness or other obligations of any such lenders or other providers of
debt, loan facilities or stand-by facilities); provided that the Indebtedness
or other obligations secured by any such Lien shall be non-recourse to the
Loan Parties (other than with respect to such Macau Loans);
(z) additional Liens incurred by any Loan Party so long as
the value of the Property subject to such Liens (valued at the time such Lien
is incurred) do not exceed $5,000,000 in the aggregate at any time;
(aa) to the extent constituting Liens, any trust's ownership
interest in the Aircraft; and
(bb) Liens of sellers of goods to any Loan Party arising
under Article 2 of the UCC or similar provisions of applicable law in the
ordinary course of business, covering only the goods sold and securing only
the unpaid purchase price for such goods and related expenses.
7.4 Limitation on Fundamental Changes. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or Dispose of all or
substantially all of its Property or business, except that:
(a) any Loan Party may be merged or consolidated with or
into any other Loan Party (provided, that in the event any such merger or
consolidation involves (i) the Borrower, the Borrower shall be the continuing
or surviving entity and (ii) Capital Corp. or Wynn Golf, neither Capital Corp.
nor Wynn Golf shall be the continuing or surviving entity;
(b) any Loan Party may Dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or any other Loan
Party (other than Capital Corp. or Wynn Golf);
(c) any Loan Party (other than the Borrower) may liquidate,
wind up or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and its
Subsidiaries taken as a whole and is not materially disadvantageous to the
Lenders; and
(d) any Loan Party may Dispose of any of its Property in
accordance with Section 7.5.
7.5 Limitation on Disposition of Property. Dispose of any of
its Property (including, without limitation, receivables and leasehold
interests), whether now owned or hereafter acquired, or issue or sell any
shares of Capital Stock to any Person, except:
(a) the Disposition for fair market value of obsolete or
worn out Property or Property no longer useful in the business of the Loan
Parties;
(b) the Disposition of cash or cash equivalents, Investments
permitted pursuant to Section 7.8, inventory (in the ordinary course of
business (other than the sale of condominiums, time shares, integral
ownerships or other similar interests)) and receivables (in connection with
the collection thereof and otherwise as customary in gaming operations of the
type conducted by the Loan Parties);
(c) Dispositions permitted by Section 7.4;
(d) the sale or issuance of any Loan Party's Capital Stock
(other than Disqualified Stock) to its direct parent;
(e) Dispositions of Property having a fair market value not
in excess of $25,000,000 in the aggregate (with respect to all the Loan
Parties) in any Fiscal Year following the Phase I Opening Date; provided, that
(i) the consideration received for such Property shall be in an amount at
least equal to the fair market value thereof; and (ii) the consideration
received therefor shall be at least 85% in cash or cash equivalents;
(f) subject to the last paragraph of this Section 7.5, the
Borrower may enter into any leases with respect to any space on or within the
Project;
(g) the dedication of space or other Dispositions of
Property in connection with and in furtherance of constructing (i) a mass
transit system, (ii) a pedestrian bridge over or a pedestrian tunnel under Las
Vegas Boulevard or Sands Avenue or similar structures to facilitate the
movement of pedestrians or vehicular traffic, (iii) a right turn lane or other
roadway dedication or (iv) such other structures or improvements reasonably
related to the development, construction and operation of the Project;
provided, that (A) in each case such dedication or other Dispositions are in
furtherance of, and do not materially impair or interfere in the use or
operations (or intended use or operations) of, the Project and (B) in no event
shall the Loan Parties in the aggregate Dispose of (other than by way of
dedication to a Governmental Authority) more than five acres of Real Estate
pursuant to this Section 7.5(g);
(h) any Loan Party may (i) license trademarks, trade names
and other Intellectual Property in the ordinary course of business and not
interfering in any material respect with the ordinary conduct of the business
of the Loan Parties and (ii) abandon any trademarks, trade names or other
Intellectual Property no longer useful in the business of the Loan Parties;
(i) the incurrence of Liens permitted under Section 7.3;
provided, that any leases other than those permitted pursuant to Section
7.3(i) (whether or not constituting Permitted Liens) shall be permitted only
to the extent provided in subsection (f) above and the last paragraph of this
Section 7.5;
(j) Disposition of the Wynn Home Site Land to or as directed
by Mr. Wynn provided that (i) no Default or Event of Default has occurred and
is continuing at the time of such Disposition and such Disposition is not
prohibited under the other Financing Agreements, (ii) the cash purchase price
paid by Mr. Wynn or his designee for the Wynn Home Site Land is in immediately
available funds and equal to or greater than the fair market value of the Wynn
Home Site Land, as determined in good faith by the Loan Parties, (iii) the
Mortgaged Properties affected by the Disposition of the Wynn Home Site Land
constitute separate legal parcels under Nevada Revised Statutes, Chapter 278,
(iv) the Borrower shall have certified that construction of Mr. Wynn's
personal residence on the Wynn Home Site could not reasonably be expected to
materially interfere with the use or operations of the Golf Course and could
not otherwise reasonably be expected to impair the overall value of the
Project, (v) appropriate reconveyance documentation in form and substance
reasonably satisfactory to the Administrative Agent and the Collateral Agent
shall have been prepared reflecting the release of the Wynn Home Site Land
from the Lien of the applicable Mortgage(s) and such documentation shall have
been recorded at the Clark County, Nevada Recorder's Office, (vi) the Borrower
shall have delivered to the Administrative Agent and the Collateral Agent an
endorsement, or a commitment by the Title Insurer to issue an endorsement, to
the Title Policy, in either case in form and substance reasonably satisfactory
to the Administrative Agent, insuring that the execution and recordation of
the reconveyance documentation described in clause (v) above does not impair
the Lien of the Mortgage(s) affected by such reconveyance documentation and
(vii) no Points of Diversion with respect to any water permits held by any
Loan Party or otherwise utilized or expected to be utilized with respect to
the Project, wells associated therewith or rights-of-way necessary for the
transportation of water available under such water permits to the Golf Course
Land or the water features of the Project, as the case may be, are located on
the Wynn Home Site Land. Upon satisfaction of the foregoing conditions, the
Administrative Agent shall execute and deliver to the Loan Parties such
documents and instruments, including UCC-3 termination statements and deeds of
reconveyance, all as may be reasonably requested by the Loan Parties to
release the Liens granted for the benefit of the Secured Parties in the Wynn
Home Site Land, and to effectuate such Disposition; provided, that an
instrument reasonably acceptable to the Administrative Agent is recorded
against the Wynn Home Site Land to the effect that until the earlier of (x)
the Disposition of the Golf Course Land in accordance with Section 7.5(k) or
(y) the payment in full of the Obligations, only a personal residence for Mr.
Wynn will be developed on the Wynn Home Site Land, the provisions of such
instrument to burden the Wynn Home Site Land for the benefit of the Golf
Course Land;
(k) Disposition of the Golf Course Land and/or, at the
option of the Loan Parties, Disposition of the Capital Stock of Wynn Golf;
provided, that (i) no Default or Event of Default has occurred and is
continuing at the time of such Disposition and such Disposition is not
prohibited under the other Financing Agreements, (ii) such Disposition occurs
on or after the last day of the second full fiscal quarter of the Borrower
occurring after the Phase II Commitment Sunset Date (if the Phase II Approval
Date has not by then occurred) or the Phase II Completion Date (if the Phase
II Approval Date has occurred), (iii) at the time of such Disposition, the
Consolidated Leverage Ratio (calculated in accordance with Section 1.3(b)) for
the period of four full consecutive fiscal quarters ending on each of the two
most recent Quarterly Dates was 5.0 to 1.0 or less (provided, that, in each
such case, there shall be excluded from such calculations of the Consolidated
Leverage Ratio the Consolidated EBITDA, if any, derived from the Golf Course
during any applicable period) and (iv) no Points of Diversion with respect to
any water permits held by any Loan Party or otherwise utilized or expected to
be utilized with respect to the water features of the Project (other than the
Golf Course), wells associated therewith or rights-of-way necessary for the
transportation of water available under such water permits to the water
features of the Project (other than the Golf Course) are located on the Golf
Course Land (or otherwise Wynn Golf shall have transferred (previously or in
connection with such Disposition) at no cost to the Borrower such easements as
are necessary for the Borrower to access such Points of Diversion, own and
operate such wells and transport such water to the water features of the
Project and the Borrower shall have taken all actions required pursuant to
Section 6.10 with respect to any Property thereby acquired). Upon satisfaction
of the foregoing conditions, the Administrative Agent shall execute and
deliver to the applicable Loan Parties such documents and instruments,
including UCC-3 termination statements, deeds of reconveyance and certificates
of Capital Stock, all as may be reasonably requested by the Loan Parties to
release the Liens granted for the benefit of the Secured Parties in the Golf
Course Land and Wynn Golf and to effectuate such Disposition;
(l) Disposition of the Home Site Land; provided that (i) no
Default or Event of Default has occurred and is continuing at the time of such
Disposition and such Disposition is not prohibited under the other Financing
Agreements, (ii) such Disposition occurs on or after the last day of the
fourth full fiscal quarter of the Borrower occurring after the Phase II
Commitment Sunset Date (if the Phase II Approval Date has not by then
occurred) or the Phase II Completion Date (if the Phase II Approval Date has
occurred), (iii) at the time of such Disposition, the Consolidated EBITDA of
the Borrower for the most recent period of four full consecutive fiscal
quarters of the Borrower was equal to or greater than $325,000,000, (iv) the
Mortgaged Properties (other than the Home Site Land) affected by the
Disposition of the Home Site Land constitute separate legal parcels under
Nevada Revised Statutes, Chapter 278, (v) the Borrower shall have certified
that construction of permitted improvements on the Home Site Land could not
reasonably be expected to materially interfere with the use or operations of
the Golf Course and could not otherwise reasonably be expected to materially
impair the overall value of the Project, (vi) appropriate reconveyance
documentation in form and substance reasonably satisfactory to the
Administrative Agent and the Collateral Agent shall have been prepared
reflecting the release of the Home Site Land from the Lien of the applicable
Mortgage(s) and such documentation shall have been recorded at the Clark
County, Nevada Recorder's Office, (vii) the Borrower shall have delivered to
the Administrative Agent and the Collateral Agent an endorsement, or a
commitment by the Title Insurer to issue an endorsement, to the Title Policy,
in either case in form and substance reasonably satisfactory to the
Administrative Agent, insuring that the execution and recordation of the
reconveyance documentation described in clause (vi) above does not impair the
Lien of the Mortgage(s) affected by such reconveyance documentation and (viii)
no Points of Diversion with respect to any water permits held by any Loan
Party or otherwise utilized or expected to be utilized with respect to the
water features of the Project or the Golf Course, wells associated therewith
or rights-of-way necessary for the transportation of water available under
such water permits to the Golf Course Land or the water features of the
Project, as the case may be, are located on the Home Site Land (or otherwise
Wynn Golf shall have transferred or reserved for the benefit of the Golf
Course Land (previously or in connection with such Disposition) at no cost to
the Loan Parties such easements as are necessary for the Loan Parties to
access such Points of Diversion, own and operate such wells and transport such
water to the water features of the Project and/or the Golf Course and the Loan
Parties shall have taken all actions required pursuant to Section 6.10 with
respect to any Property thereby acquired). Upon satisfaction of the foregoing
conditions, the Administrative Agent shall execute and deliver to the Loan
Parties such documents and instruments, including UCC-3 termination statements
and deeds of reconveyance, all as may be reasonably requested by the Loan
Parties to release the Liens for the benefit of the Secured Parties in the
Home Site Land, and to effectuate such Disposition; provided, that an
instrument reasonably acceptable to the Administrative Agent is recorded
against the Home Site Land to the effect that until the earlier of (x) the
Disposition of the Golf Course Land in accordance with Section 7.5(k) or (y)
the payment in full of the Obligations, only residential housing and other
non-gaming related developments will be developed on the Home Site Land, the
provisions of such instrument to burden the Home Site Land for the benefit of
the Golf Course Land;
(m) Dispositions of all or a portion of the Koval Land;
provided that (i) any such Disposition shall be in furtherance of the
development, construction and operation of the Project (including, without
limitation, the construction, development and operation of employee parking
facilities and other ancillary facilities) on the Koval Land and/or on
adjacent Property acquired or to be acquired by any Loan Party pursuant to the
transaction or series of transactions related to such Disposition, (ii) any
such Disposition shall be at fair market value (after taking into
consideration any cash and non-cash consideration received for such
Disposition from any transaction or series of transactions related to such
Disposition), (iii) any Net Cash Proceeds of any such Disposition that are not
reinvested or otherwise utilized in furtherance of the matters described in
clause (i) above within 360 days after such Disposition shall be deemed Net
Cash Proceeds and shall be required to be applied to the prepayment of the
Obligations in accordance with Section 2.12(b) (without any right of
reinvestment thereunder) and (iv) the Loan Parties shall have taken all
actions required pursuant to Section 6.10 with respect to any Property
acquired in connection with any transaction or series of transactions related
to any such Disposition;
(n) any Event of Eminent Domain; provided, that the Loan
Parties otherwise comply with Sections 2.12(c) and 2.24, as applicable; and
(o) Dispositions by any Loan Party to any other Loan Party
(other than Capital Corp. or Wynn Golf (except with respect to Dispositions,
the proceeds of which are necessary for the organizational maintenance of
Capital Corp. or Wynn Golf); provided, that in each case each Loan Party shall
have taken all actions required pursuant to Section 6.10 with respect to any
Property acquired by it pursuant to this clause (o);
Notwithstanding the foregoing provisions of this Section
7.5, subsection (f) above shall be subject to the additional provisos that:
(a) no Event of Default shall exist and be continuing at the time of such
transaction, lease or sublease or would occur as a result of entering into
such transaction, lease or sublease (or immediately after any renewal or
extension thereof at the option of the Borrower), (b) such transaction, lease
or sublease could not reasonably be expected to materially interfere with, or
materially impair or detract from, the operation of the Project, (c) no
gaming, hotel or casino operations (other than the operation of arcades and
games for minors) may be conducted on any space that is subject to such
transaction, lease or sublease other than by and for the benefit of the Loan
Parties and (d) no lease or sublease may provide that a Loan Party subordinate
its fee, condominium or leasehold interest to any lessee or any party
financing any lessee; provided, that (x) the Administrative Agent on behalf of
the Lenders shall agree to provide the tenant under any such lease or sublease
with a subordination, non-disturbance and attornment agreement and (y) unless
the Administrative Agent shall otherwise waive such requirement, with respect
to any such lease having a term of five years or more and reasonably
anticipated annual rents (whether due to base rent, fixed rents, reasonably
anticipated percentage rents or other reasonably anticipated rental income
from such lease or sublease) in excess of $500,000 (other than leases solely
between Loan Parties), the applicable Loan Party(ies) shall enter into, and
cause the tenant under any such lease or sublease to enter into with the
Administrative Agent for the benefit of the Lenders, a subordination,
non-disturbance and attornment agreement, in each case substantially in the
form of Exhibit N hereto with such changes as the Administrative Agent may
approve, which approval shall not be unreasonably withheld, conditioned or
delayed (provided, that such changes do not materially and adversely affect
the security interests granted in favor of the Lenders under any of the
Security Documents).
7.6 Limitation on Restricted Payments. Declare or pay any
dividend (other than dividends payable solely in common stock or in options,
warrants or other rights to purchase such common stock (excluding Disqualified
Stock) of the Person making such dividend) on, or make any payment on account
of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other acquisition of, any
Capital Stock of any Loan Party, whether now or hereafter outstanding, or make
any other distribution in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of any Loan Party, or enter into
any derivatives or other transaction with any financial institution,
commodities or stock exchange or clearinghouse (a "Derivatives Counterparty")
obligating any Loan Party to make payments to such Derivatives Counterparty as
a result of any change in market value of any such Capital Stock
(collectively, "Restricted Payments"), except that:
(a) any Loan Party may pay dividends or other distributions
(not in excess of $20,000,000 in the aggregate) to Wynn Resorts, through any
intermediate Wholly Owned Subsidiaries of Wynn Resorts, of amounts necessary
to repurchase Capital Stock or Indebtedness of Wynn Resorts (other than
Capital Stock held by the Existing Stockholders) to the extent required by the
Nevada Gaming Authorities for not more than the fair market value thereof in
order to avoid the suspension, revocation or denial by the Nevada Gaming
Authorities of a gaming license or other authorization necessary for the
ownership, construction, maintenance, lease, financing or operation of the
Project, in any event to the extent such suspension, revocation or denial
would have a Material Adverse Effect; provided, that so long as such efforts
do not jeopardize any such gaming license or other authorization necessary for
the ownership, construction, maintenance, lease, financing or operation of the
Project, Wynn Resorts and its Subsidiaries shall have diligently and in good
faith attempted to find a third-party purchaser(s) for such Capital Stock or
Indebtedness and no third-party purchaser(s) acceptable to the Nevada Gaming
Authorities was willing to purchase such Capital Stock or Indebtedness within
a time period acceptable to the Nevada Gaming Authorities;
(b) to the extent constituting Restricted Payments, (i) any
Loan Party may consummate a transaction permitted pursuant to Section 7.4,
(ii) any Loan Party may make Dispositions permitted pursuant to Section 7.5
(other than Section 7.5(b) and Section 7.5(k) (any Dispositions permitted
pursuant to Section 7.5(k), to the extent constituting Restricted Payments,
being governed by Section 7.6(h) below)), (iii) any Loan Party may make
Investments permitted pursuant to Section 7.8, (iv) any Loan Party may pay
Management Fees to Wynn Resorts permitted pursuant to Section 7.22 and (v) any
Loan Party may take actions permitted pursuant to Section 7.10;
(c) any Loan Party may make Restricted Payments to the
Borrower or any other Loan Party (other than Capital Corp. and Wynn Golf); (d)
any Loan Party may make distributions to the direct or indirect owners of such
Loan Party with respect to any period during which such Loan Party is a Pass
Through Entity or a Consolidated Member, such distributions in an aggregate
amount not to exceed such owners' Tax Amounts for such period;
(e) so long as no Default or Event of Default shall have
occurred and be continuing (or would result therefrom), the Borrower may pay
dividends directly or indirectly to Wynn Resorts to permit Wynn Resorts to
repurchase, redeem or otherwise acquire or retire Capital Stock of Wynn
Resorts held by members of management of Wynn Resorts or its Wholly Owned
Subsidiaries (or their estates or trusts) upon the death, disability or
termination of employment of such employees in accordance with any applicable
Governing Documents, employment agreements, employee benefit plans or option
plans or agreements; provided, that the aggregate amount of payments under
this subsection (e) will not exceed (i) $4,000,000 in any Fiscal Year and (ii)
$10,000,000 in the aggregate (less any Indebtedness of the Loan Parties then
outstanding pursuant to Section 7.2(h));
(f) on and after the Phase I Completion Date and so long as
no Default or Event of Default shall have occurred and be continuing and no
Material Adverse Effect shall have occurred and be continuing (or, in either
case, would result therefrom), the Loan Parties may make Restricted Payments
not otherwise permitted under any other subsection of this Section 7.6 in an
amount not to exceed an aggregate of $10,000,000, plus, for each Fiscal Year
occurring after the Fiscal Year in which the Phase I Completion Date occurs,
$2,000,000;
(g) to the extent constituting Restricted Payments, the
Borrower may (i) pay Project Costs as permitted pursuant to the Disbursement
Agreement and (ii) make payments permitted pursuant to Section 3.7 of the
Disbursement Agreement; and
(h) any Loan Party may make Restricted Payments consisting
of any portion of the Golf Course Collateral so long as (i) the Disposition of
such Golf Course Collateral is permitted pursuant to Section 7.5(k) or (ii)
the Lien on such Golf Course Collateral has been released pursuant to Section
10.22.
7.7 Limitation on Capital Expenditures. Make or incur
Capital Expenditures, in any Fiscal Year indicated below, in an aggregate
amount among all Loan Parties in excess of the corresponding amount set forth
below opposite such Fiscal Year; provided, that other than Capital
Expenditures (x) necessary to keep all associated Property and systems
reasonably related to the operation of the Golf Course Land and improvements
thereon in good and working order and condition or (y) funded by the proceeds
of equity capital contributions from Wynn Resorts (or another Loan Party to
the extent acting as an intermediary for purposes of contributing equity
capital contributions from Wynn Resorts for such Capital Expenditures), in no
event shall any Loan Party commit to make or incur Capital Expenditures with
respect to the Golf Course Land or improvements thereon in excess of (A)
$3,000,000 during the period from the Phase I Opening Date through the 18
month anniversary thereof and (B) $5,000,000 in any 12 month period
thereafter; provided, further, that unless the Secured Parties have been
granted a Lien on the Aircraft in accordance with Section 6.7, other than
Capital Expenditures (x) necessary or advisable to keep all associated
Property and systems reasonably related to the operation of the Aircraft in
good and working order and condition, whether pursuant to manufacturer
requirements or suggestions, Requirements of Law, good aircraft maintenance
practices or otherwise, or (y) funded by the proceeds of equity capital
contributions from Wynn Resorts (or another Loan Party to the extent acting as
an intermediary for purposes of contributing equity capital contributions from
Wynn Resorts for such Capital Expenditures), in no event shall any Loan Party
commit to make or incur Capital Expenditures with respect to the Aircraft.
|===========================|=============================================|
| Fiscal Year | Maximum Capital Expenditures |
|===========================|=============================================|
|Fiscal Year 2005 |$40,000,000 |
|---------------------------|---------------------------------------------|
|Fiscal Year 2006 |$80,000,000 |
|---------------------------|---------------------------------------------|
|Fiscal Year 2007 |$100,000,000 |
|---------------------------|---------------------------------------------|
|Fiscal Year 2008 and each |$120,000,000; provided, that if the Phase II |
|Fiscal Year thereafter |Commitment Sunset Date shall have occurred |
| |without the Phase II Approval Date having |
| |occurred, $100,000,000 |
|---------------------------|---------------------------------------------|
Notwithstanding the foregoing, (a) the amounts referred to above shall be
increased from time to time by the amount of cash proceeds received by the
Loan Parties as equity capital contributions from Wynn Resorts (or another
Affiliate to the extent acting as an intermediary for purposes of contributing
equity capital contributions from Wynn Resorts to a Loan Party for application
to Capital Expenditures) but only to the extent such equity capital
contribution proceeds are contributed and so applied for Capital Expenditures
(other than the Additional Entertainment Facility and/or the Retail Facility)
during the relevant Fiscal Year and (b) if any amount referred to above is not
expended in the Fiscal Year for which it is permitted, 50% of any such
non-expended amounts (the "Carryover Amount") may be carried over for
expenditure in the next succeeding Fiscal Year (with amounts expended in the
next succeeding Fiscal Year applied first against the Carryover Amount and
second against amounts set forth above in respect of such succeeding Fiscal
Year).
7.8 Limitation on Investments. Make any advance (other than
deposits with financial institutions available for withdrawal on demand,
prepaid expenses and similar items), loan, extension of credit (by way of
guaranty or otherwise) or capital contribution to, or purchase any Capital
Stock, bonds, notes, debentures or other debt securities of, purchase all or
substantially all of the assets constituting the business of a division,
branch or other unit operation from, or make any other investment in, any
other Person (all of the foregoing, "Investments"), except:
(a) extensions of trade credit in the ordinary course of
business (including, without limitation, advances to patrons of the Project's
casino operation consistent with ordinary course gaming operations);
(b) Investments in Cash Equivalents;
(c) to the extent constituting Investments, the incurrence
of Indebtedness permitted by Sections 7.2(b), 7.2(c), 7.2(d) and 7.2(e);
(d) loans and advances to employees of the Loan Parties in
the ordinary course of business (including, without limitation, for travel,
entertainment and relocation expenses) in an aggregate amount for all Loan
Parties not to exceed $5,000,000 at any one time outstanding;
(e) Investments by any Loan Party in the Borrower or any
other Loan Party (other than Capital Corp. or Wynn Golf (except with respect
to Investments, the proceeds of which are necessary for the corporate
maintenance of Capital Corp. or Wynn Golf));
(f) Investments consisting of securities received in
settlement of debt created in the ordinary course of business or in
satisfaction of judgments;
(g) capital contributions in connection with and in
furtherance of the formation of new Subsidiaries in accordance with Section
7.17;
(h) to the extent constituting Investments, (i) any Loan
Party may consummate a transaction permitted pursuant to Section 7.4, (ii) any
Loan Party may make Dispositions permitted pursuant to Section 7.5 (including,
without limitation, the assignment of gaming debts evidenced by a credit
instrument, including what are commonly referred to as "markers," to an
Affiliate of the Borrower for the purpose of collecting amounts outstanding
under such gaming debts or "markers" due to the Borrower thereunder; provided,
however, that any Affiliate receiving any such assignment enters into a
binding agreement to pay all amounts so collected back to the Borrower within
30 days of receipt of payment of such collected amounts; provided, further,
that any such Affiliate is not, at the time of any such assignment, in default
of its obligations under any such binding agreement previously delivered with
respect to any such assignment), (iii) any Loan Party may make Restricted
Payments permitted pursuant to Section 7.8 and (iv) any Loan Party may take
actions permitted pursuant to Section 7.10;
(i) Investments consisting of pledges or deposits made in
the ordinary course of business;
(j) Investments consisting of Hedging Agreements permitted
by Section 7.18;
(k) Investments consisting of debt securities and other
non-cash consideration received as consideration for a Disposition permitted
by Section 7.5;
(l) so long as at the time such Investment is made no
Default or Event of Default shall have occurred and be continuing (or would
result therefrom), Investments in the form of loans by any Loan Party (other
than Capital Corp. or Wynn Golf) to Wynn Asia, Wynn Resorts and/or Wynn Macau
in an aggregate amount not to exceed $122,000,000; provided that (i) such
Investments shall be made on or before August 30, 2005, (ii) in the case of
such Investments made in Wynn Resorts, Wynn Resorts shall promptly invest
substantially all of the proceeds of such Investments in Wynn Asia, who shall
promptly invest substantially all of such proceeds in Wynn Macau, (iii) in the
case of such Investments made in Wynn Asia, Wynn Asia shall promptly invest
substantially all of the proceeds of such Investments in Wynn Macau and (iv)
with respect to such Investments made directly in Wynn Asia or Wynn Resorts,
the Borrower shall or shall cause the applicable Loan Party to take all
actions required pursuant to Section 6.10 and the Security Documents necessary
for the Borrower or the applicable Loan Party to grant to the Collateral Agent
for the benefit of the Secured Parties a perfected first priority security
interest in such Investments. Each Investment made by a Loan Party pursuant to
this Section 7.8(l) shall be on economic terms and conditions substantially
similar to those set forth on Exhibit Q and, in the case of such Investments
in Wynn Resorts and/or Wynn Asia, such economic terms shall be substantially
similar to the economic terms of the investments made by Wynn Resorts in Wynn
Asia and/or Wynn Asia in Wynn Macau in accordance with clauses (ii) and (iii)
above;
(m) to the extent constituting Investments, any Loan Party's
beneficial ownership interests in a trust that owns the Aircraft;
(n) Investments in joint ventures that solely provide retail
services at the Project so long as (i) a Loan Party owns 50% of each such
joint venture and (ii) such investments do not exceed $5,000,000.00 at any
time outstanding; and
(o) in addition to Investments otherwise expressly permitted
by this Section 7.8, so long as no Default or Event of Default shall have
occurred and be continuing at the time such Investment is made or would result
therefrom, Investments by the Loan Parties in an aggregate amount (valued at
cost) not to exceed $10,000,000 at any time outstanding.
7.9 Limitation on Optional Payments and Modifications of
Governing Documents. (a) Make or make a binding offer to make any optional or
voluntary payment, prepayment, repurchase or redemption of, or otherwise
voluntarily or optionally defease, any Indebtedness that is either subordinate
or junior in right of payment to the Obligations (including any Subordinated
Debt), or segregate funds for any such payment, prepayment, repurchase,
redemption or defeasance, or enter into any derivative or other transaction
with any Derivatives Counterparty obligating any Loan Party to make payments
to such Derivatives Counterparty as a result of any change in market value of
such Indebtedness, (b) make or make a binding offer to make any optional or
voluntary payment, prepayment, repurchase or redemption of, or otherwise
voluntarily or optionally defease the 2014 Notes unless at such time no
Default or Event of Default shall have occurred and be continuing and the
Available Revolving Credit Commitment immediately prior to and after such
actions shall be no less than $100,000,000, (c) amend or modify, or permit the
amendment or modification of its Governing Documents in any manner materially
adverse to the Lenders or (d) permit the Completion Guarantor to amend, modify
or otherwise change the provisions of its operating agreement relating to
"conduct and separateness".
7.10 Limitation on Transactions with Affiliates. Enter into
any transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than such
transactions solely between or among Loan Parties (other than Capital Corp. or
Wynn Golf)) unless such transaction is:
(a) on terms that are not less favorable to that Loan Party
than those that might be obtained at the time in a comparable arm's length
transaction with Persons who are not Affiliates of such Loan Party and the
applicable Loan Party has delivered to the Administrative Agent prior to the
consummation of any such transaction (1) with respect to any transaction or
series of related transactions involving aggregate consideration in excess of
$10,000,000, a resolution of the Board of Directors of the applicable Loan
Party(ies) certifying that such transaction or series of related transactions
complies with this Section 7.10 and that such transaction or series of related
transactions has been approved by a majority of the disinterested members of
the Board of Directors of the applicable Loan Party(ies), to the extent there
are any such disinterested members of such Board of Directors and (2) with
respect to any such transaction or series of related transactions that
involves aggregate consideration in excess of $25,000,000, an opinion as to
the fairness to the applicable Loan Party at the time such transaction or
series of related transactions is entered into from a financial point of view
issued by an accounting, appraisal or investment banking firm of national
standing; provided, that, in no such case shall such a transaction or series
of related transactions consist of, contain, or provide for the payment of (i)
Affiliated Overhead Expenses or (ii) any fee, profit or similar component
benefiting any Loan Party or Affiliate of a Loan Party (other than a Loan
Party other than Capital Corp. or Wynn Golf);
(b) a Disposition permitted pursuant to Section 7.5
(provided, that the requirements of subsection (a) above shall apply to leases
of the Project by the Borrower permitted pursuant to Section 7.5(f) (other
than the Dealership Lease Agreement) and Dispositions permitted pursuant to
Section 7.5(b)), an Investment permitted pursuant to Section 7.8 or a
Restricted Payment permitted pursuant to Section 7.6;
(c) on and after the Phase I Opening Date, the reimbursement
by the Borrower and the other Loan Parties to Wynn Resorts of Allocable
Overhead to the extent incurred by Wynn Resorts; provided, that the amount of
Allocable Overhead reimbursable by the Loan Parties pursuant to this Section
7.10(c) during any 12-month period shall not exceed, in the aggregate, 2.00%
of Net Revenues for the period of four full consecutive fiscal quarters of the
Borrower most recently ended prior to the commencement of such 12-month
period;
(d) expressly contemplated by the Affiliate Agreements (but,
with respect to the Management Agreement, only to the extent (i) not related
to the use of any aircraft (including the Aircraft) (such use being governed
pursuant to Section 7.10(f)) or (ii) payments thereunder do not constitute
Management Fees (payments of such amounts being governed pursuant to Section
7.22)) and payment of Management Fees as permitted by Section 7.22; provided,
however, that any amendments, modifications or supplements thereto after the
Closing Date shall comply with Section 7.10(a);
(e) the payment of Project Costs as permitted pursuant to
the Disbursement Agreement;
(f) associated with the use of any aircraft (including the
Aircraft) for any purpose not reasonably related to the Project or the
Project-related Permitted Businesses of the Loan Parties, in which case either
(i) if such use is by management of Wynn Resorts or any of its Subsidiaries
(other than any Loan Party), the applicable Loan Party shall be reimbursed in
an amount determined pursuant to the Standard Industry Fare Level formula, as
described in Treasury Regulation Section 1.61-21(g) or (ii) the applicable
Loan Party shall be reimbursed promptly for all variable costs and expenses
(including, without limitation, fuel costs, personnel costs, overhead and
similar operating costs and expenses but in no event costs or expenses related
to the acquisition, maintenance or repair of any such aircraft or any fixed
assets related thereto) incurred by such Loan Party in connection with such
use;
(g) associated with an employment agreement entered into by
any Loan Party with a Person in the ordinary course of business;
(h) the lease of space at the Project for the development
and operation of a Ferrari and Maserati automobile dealership to an Affiliate
of the Borrower pursuant to the Dealership Lease Agreement;
(i) to the extent not constituting Allocable Overhead or
Management Fees, the payment of reasonable directors'/managers' fees to
directors and managers of any Loan Party or the Completion Guarantor, and
customary indemnification and insurance arrangements in favor of such
directors and managers, in each case in the ordinary course of business;
(j) the issuance by the Borrower and/or Capital Corp. of the
exchange notes contemplated by the 2014 Notes Indenture as of the Closing
Date; or
(k) the Disposition or issuance by any Loan Party of its
Capital Stock permitted pursuant to Section 7.5.
7.11 Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by any Loan Party of
Property which has been or is to be sold or transferred by any Loan Party to
such Person or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such Property or rental obligations
of any Loan Party.
7.12 Limitation on Changes in Fiscal Periods. Permit the
fiscal year of any Loan Party to end on a day other than December 31 or change
any Loan Party's method of determining fiscal quarters.
7.13 Limitation on Negative Pledge Clauses. Enter into or
suffer to exist or become effective any agreement that prohibits or limits the
ability of a Loan Party to create, incur, assume or suffer to exist any Lien
upon any of its Property or revenues, whether now owned or hereafter acquired,
to secure the Obligations other than (a) this Agreement and the other
Financing Agreements, (b) any agreements governing any Liens permitted
pursuant to Sections 7.3(d), 7.3(f), 7.3(s), 7.3(u), 7.3(v) and 7.3(x) or
Capital Lease Obligations otherwise permitted hereby (in which case, any
prohibition or limitation shall only be effective against the Property
financed thereby or subject to such Lien and proceeds thereof); provided,
that, with respect to agreements governing Liens permitted pursuant to Section
7.3(s), the principal amount of Indebtedness thereunder shall exceed 75% of
the original purchase price of the assets financed thereby, (c) any agreements
governing Indebtedness described in Section 7.2(c) secured by a Lien on the
Aircraft permitted pursuant to Section 7.3(j) (in which case any such
prohibition or limitation shall only be effective against the Aircraft and
proceeds thereof), (d) to the extent any Macau Loans are made directly by a
Loan Party to Wynn Macau in accordance with Section 7.8(l), any agreements
governing such Macau Loan (in which case, any such prohibition or limitation
shall only be effective against such Macau Loan and proceeds thereof), (e)
customary nonassignment provisions contained in leases, licenses and similar
agreements and other contracts (in each case other than those with respect to
Real Estate (other than Real Estate excluded from the Collateral pursuant to
Section 6.10(c)) and so long as such restrictions are limited to such leases,
licenses and similar agreements or other contracts, or, in the case of leases,
licenses and similar agreements, the Property subject thereto) which, taken as
a whole, are not material to the business and operations of the Loan Parties,
(f) any agreements governing the 2010 Notes Satisfaction Proceeds, (g) any
agreements governing any Excluded Assets or Released Assets (in which case any
prohibition or limitation shall only be effective against such Excluded Assets
or Released Assets applicable thereto and proceeds thereof) and (h) as
required by applicable law or any applicable rule or order, including those of
any Nevada Gaming Authority.
7.14 Limitation on Restrictions on Subsidiary Distributions,
etc. Enter into or suffer to exist or become effective any consensual
encumbrance or restriction on the ability of any Loan Party to (a) make
Restricted Payments in respect of any Capital Stock of such Loan Party held
by, or pay or subordinate any Indebtedness owed to, any other Loan Party, (b)
make Investments in any other Loan Party or (c) transfer any of its assets to
any other Loan Party, except for such encumbrances or restrictions existing
under or by reason of (i) any restrictions existing under the Loan Documents,
(ii) any restrictions under the Financing Agreements, (iii) as required by
applicable law or any applicable rule or order, including those of any Nevada
Gaming Authority, (iv) any restrictions imposed pursuant to an agreement that
has been entered into in connection with the Disposition of all or
substantially all of the Capital Stock or Property of a Loan Party or the
Disposition of Property covered by such restriction, (v) any restrictions
imposed with respect to any Property subject to a Lien permitted in accordance
with Section 7.3 pursuant to an agreement that has been entered into in
connection with the incurrence of such Liens so long as such restrictions
relate solely to the Property subject to such Liens and (vi) customary
nonassignment provisions in leases, licenses and similar agreements and other
contracts which, taken as a whole, are not material to the business and
operations of the Loan Parties.
7.15 Limitation on Lines of Business. Enter into any
business or investment activities, whether directly or indirectly, other than
Permitted Businesses; provided, however, that (a) Capital Corp. shall not hold
any material Property, incur any Indebtedness or become liable for any
material obligations or engage in any business activities (other than as
co-obligor or guarantor with respect to the Financing Agreements) or have any
Subsidiaries and (b) Wynn Golf shall not hold any material Property other than
the Golf Course Land or engage in any business activities other than those
pursuant to the Golf Course Lease. 7.16 Restrictions on Changes. (a) Agree to
any amendment to, assignment or termination of, or waive any of its rights
under, any Permit or Material Contract without in each case obtaining the
prior written consent of the Required Lenders if in any such case such
amendment, assignment, termination or waiver could reasonably be expected to
have a Material Adverse Effect (taking into consideration any viable
replacements or substitutions therefor at the time such determination is
made).
(b) Except in connection with a full redemption or other
repayment under any Financing Agreements (other than the Loan Documents) with
Permitted Refinancing Indebtedness, amend or otherwise change the terms of any
Financing Agreements (other than the Loan Documents) or make any payment
consistent with an amendment thereof or change thereto (i) if the effect of
such amendment or change is to increase the interest rate or fees on the
Indebtedness evidenced thereby, change to earlier or more frequent dates any
dates upon which payments of principal or interest are due thereon (including,
without limitation, changes to, or new additions of, mandatory prepayment
provisions) or (ii) if the effect of such amendment or change, together with
all other amendments and changes previously made, is to materially increase
the obligations of the obligors thereunder or to confer any additional rights
on the holders of the Indebtedness or obligations evidenced thereby (or a
trustee or other representative on their behalf) which could reasonably be
expected to be materially adverse to the Loan Parties (taken as a whole) or
the Lenders; provided, that the Borrower may amend the terms of any other
Financing Agreement to increase the principal amount thereof if such increase
is otherwise permitted by this Agreement.
7.17 Limitation on Formation and Acquisition of Subsidiaries
and Purchase of Capital Stock. Form, create or acquire any Subsidiary, except
the Borrower and its Subsidiaries may form, create or acquire new Domestic
Subsidiaries; provided, that (a) any such new Subsidiary shall be a Wholly
Owned Subsidiary of the Borrower and (b) any such new Subsidiary shall become
a Loan Party hereunder and otherwise comply with the requirements of Section
6.10.
7.18 Limitation on Hedge Agreements. Enter into any Hedge
Agreement other than Hedge Agreements entered into in the ordinary course of
business, and not for speculative purposes, and to protect against changes in
interest rates or foreign exchange rates.
7.19 Limitation on Sale or Discount of Receivables. Except
as permitted pursuant to Section 7.5(b), sell with recourse, or discount or
otherwise sell for less than the face value thereof, any of its notes or
accounts receivable other than an assignment for purposes of collection in the
ordinary course of business.
7.20 Limitation on Zoning and Contract Changes and
Compliance. Initiate, consent to or acquiesce to (a) any zoning downgrade of
the Mortgaged Properties or seek any material variance under any existing
zoning ordinance except, in each case, to the extent such downgrade or
variance could not reasonably be expected to materially and adversely affect
the occupancy, use or operation of all or any material portion of the Site,
(b) use or permit the use of the Mortgaged Properties in any manner that could
result in such use becoming a non-conforming use (other than a non-conforming
use otherwise in compliance with applicable land use laws, rules and
regulations by virtue of a variance or otherwise) under any zoning ordinance
or any other applicable land use law, rule or regulation or (c) any change in
any laws, requirements of Governmental Authorities or obligations created by
private contracts which now or hereafter could reasonably be expected to
materially and adversely affect the occupancy, use or operation of all or any
material portion of the Site.
7.21 No Joint Assessment; Separate Lots. Suffer, permit or
initiate the joint assessment of any Mortgaged Property with any other real
property constituting a separate tax lot.
7.22 Restrictions on Payments of Management Fees. Pay to
Wynn Resorts any Management Fees unless:
(a) no Default or Event of Default shall have occurred and
be continuing or would result from such payment and no Material Adverse Effect
shall have occurred and be continuing or would result from such payment;
(b) the Consolidated Leverage Ratio (calculated in
accordance with Section 1.3(b)) for the period of four full consecutive fiscal
quarters ending on the Quarterly Date immediately preceding the date on which
such Management Fee is proposed to be paid is no greater than 3.5 to 1.0
(calculated on a pro forma basis, giving effect to the payment of the
Management Fees proposed to be paid and any Indebtedness proposed to be
incurred to finance the payment of such Management Fees as if the same was
paid and/or incurred during such prior period); and
(c) such Management Fees in the aggregate do not exceed,
during any 12-month period, 1.5% of the Net Revenues for the period of four
full consecutive fiscal quarters of the Borrower most recently ended prior to
the commencement of such 12-month period.
Any Management Fees not permitted to be paid during a particular 12-month
period pursuant to this Section 7.22 shall be deferred and shall accrue. Such
accrued and unpaid Management Fees may be paid in any subsequent 12-month
period to the extent such payment would be permitted under subsections (a),
(b) and (c) of this Section 7.22 and not prohibited by the Management Fee
Subordination Agreement.
7.23 Project Costs for the Phase II Project. Permit
expenditures with respect to Project Costs for the Phase II Project in excess
of the sum of (a) $950,000,000 and (b) any cash equity contributions made by
Mr. Wynn, Wynn Resorts or any of their Affiliates (other than the Borrowers or
any other Loan Party) to the Borrower and deposited into the Company's Funds
Account and subsequently applied to Project Costs for the Phase II Project.
For purposes of this Section 7.23, any proceeds of the 2014 Notes applied on
the Closing Date in order to consummate the Refinancing Transaction shall not
be deemed expended in furtherance of Project Costs with respect to the Phase
II Project.
7.24 Permitted Activities of Wynn Resorts Holdings. Permit
Wynn Resorts Holdings to (a) engage in any business or activity or own any
assets other than (i) holding 100% of the Capital Stock of the Borrower and
performing activities incidental thereto (including making dividends to Wynn
Resorts with the proceeds of Restricted Payments received by it from the
Borrower in accordance with the Loan Documents) and (ii) activities associated
with or incidental to any Intellectual Property it may hold from time to time,
including pursuant to the Wynn IP Agreement, (b) sell or otherwise Dispose of
any Capital Stock of the Borrower or (c) fail to hold itself out to the public
as a legal entity separate and distinct from all other Persons; provided that
nothing in this Section 7.24 shall restrict or prohibit Wynn Resorts Holdings
from Disposing of any of its Property other than the Capital Stock of the
Borrower.
7.25 Limitation on Golf Course Land and Golf Course
Development. At any time prior to the Disposition of any of the Golf Course
Collateral in accordance with Section 7.5(k) or release of the Golf Course
Collateral in accordance with Section 10.22 (i) construct upon, develop or
improve, or permit to be constructed upon, developed or improved, the Golf
Course Land in any material respect, including any excavation or site work on
the Golf Course Land, (ii) enter into, or permit to be entered into, any
contract or agreement for such construction, development or improvement, or
for any materials, supplies or labor necessary in connection with such
construction, development or improvement (other than a contract or agreement
that is conditional upon the Disposition of the Golf Course Land in accordance
with Section 7.5(k)) or (iii) incur any Indebtedness, the proceeds of which
are expected to be used, or are used, for the construction, development or
improvement of the Golf Course Land, except:
(a) construction upon, development of or improvement to the
Golf Course Land and improvements thereon substantially in accordance with the
Plans and Specifications or the Disbursement Agreement;
(b) maintenance and repairs in the ordinary course of
business necessary to keep all associated Property and systems reasonably
related to the operation of the Golf Course Land and the Golf Course in good
and working order and condition;
(c) modifications and/or reconfigurations of the Golf Course
either (x) in connection with and in furtherance of the Disposition of the
Wynn Home Site Land or the Home Site Land in accordance with Sections 7.5(j)
and 7.5(l) or (y) desirable, in the reasonable opinion of the Borrower, in
order to enhance or improve the Golf Course;
(d) use and operation of the Golf Course on the Golf Course
Land consistent with the Golf Course Lease; and
(e) in the event of loss or damage to the Golf Course Land
or improvements thereon or any Event of Eminent Domain, the repair and
restoration of such Property in accordance with Section 2.24.
7.26 Acquisition of Real Property. Acquire a fee, easement
or other interest in any real property (including, without limitation, any
lease of real property, but excluding (x) the acquisition (but not the
exercise) of any options to acquire any such interests in real property and
(y) the transactions contemplated by the Golf Course Lease and any other
leasehold interests acquired by a Loan Party over real property already
subject to the Lien of the Mortgages) unless (a) the Borrower or an applicable
other Loan Party shall have delivered to the Administrative Agent a Phase I
Report with respect to such real property along with a corresponding reliance
letter from an environmental consultant reasonably satisfactory to the
Administrative Agent confirming that no Hazardous Substances were found in, on
or under such real property in a manner that could reasonably be expected to
result in a material liability to such Loan Party and that a Phase II Report
is not warranted by the findings of such Phase I Report and (b) if Hazardous
Substances were found in, on or under such real property pursuant to such
Phase I Report in a manner that could reasonably be expected to result in a
material liability to such Loan Party or a Phase II Report is warranted by the
findings of such Phase I Report, the Borrower or an applicable other Loan
Party shall have either (i) delivered to the Administrative Agent on behalf of
the Lenders a Phase II Report with respect to such real property along with a
corresponding reliance letter from an environmental consultant reasonably
satisfactory to the Administrative Agent, confirming, in form and substance
reasonably satisfactory to the Administrative Agent, either (A) that no
Hazardous Substances were found in, on or under such real property in a manner
that could reasonably be expected to result in a material liability to such
Loan Party or (B) matters otherwise reasonably satisfactory to the
Administrative Agent or (ii) delivered to the Administrative Agent an
environmental indemnity agreement in form and substance reasonably
satisfactory to the Administrative Agent pursuant to which an indemnitor
reasonably satisfactory to the Administrative Agent indemnifies the Borrower,
the relevant other Loan Parties and the Lenders from any and all damages or
other liabilities relating to or arising from Hazardous Substances then in, on
or under such real property or otherwise caused by or attributable to such
indemnitor.
7.27 Project Liquidity Reserve Account. (a) Prior to the
Phase I Substantial Completion Date, utilize, apply or otherwise withdraw any
amounts on deposit in the Project Liquidity Reserve Account except in
accordance with the Disbursement Agreement.
(b) On or after the Phase I Substantial Completion Date,
subject to Section 2.12(f), utilize, apply or otherwise withdraw any amounts
on deposit in the Project Liquidity Reserve Account; provided, that to the
extent cash and cash equivalents or other funds (including proceeds of
Revolving Loans or other Indebtedness permitted pursuant to Section 7.2) are
not available to the Borrower or otherwise sufficient to pay Bank Debt Service
or 2014 Notes Debt Service as the same become due and payable (such
circumstance to be certified in writing to the Administrative Agent by a
Responsible Officer of the Borrower), the Borrower may apply amounts on
deposit in the Project Liquidity Reserve Account to pay Bank Debt Service
and/or 2014 Notes Debt Service (pro rata according to such amounts then due
and owing).
7.28 Golf Course Lease Termination. Terminate or permit the
termination of, or reduce or permit the reduction of the Real Estate or other
Property covered by, the Golf Course Lease until such time as the Golf Course
Land is Disposed of in accordance with Section 7.5(k) or the Golf Course
Collateral is otherwise released in accordance with Section 10.22 (provided,
that the Real Estate or other Property subject to the Golf Course Lease may be
reduced in connection with (a) the Disposition of the Wynn Home Site Land
pursuant to Section 7.5(j) or the Disposition of the Home Site Land in
accordance with Section 7.5(l), in either case so long as such reduction is
only with respect to such Real Estate or other Property being Disposed of
pursuant to such Disposition, (b) any event of loss or damage or Event of
Eminent Domain so long as there is no breach or default of the provisions of
Section 2.24 applicable thereto and (c) any Liens permitted pursuant to
Section 7.3(e)).
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be
continuing:
(a) (i) The Borrower shall fail to pay any principal of any
Loan when due in accordance with the terms hereof; or (ii) the Borrower shall
fail to pay any principal of any Reimbursement Obligation within two Business
Days after such Reimbursement Obligation becomes due in accordance with the
terms hereof; or (iii) the Borrower shall fail to pay any interest on any Loan
or Reimbursement Obligation or any Loan Party shall fail to pay any other
Obligation payable hereunder or under any other Loan Document within five days
after any such interest or other amount under this clause (iii) becomes due in
accordance with the terms hereof; provided, that the failure to pay any amount
due under the Disbursement Agreement (and not otherwise due hereunder) shall
constitute an Event of Default hereunder only to the extent such failure to
pay constitutes a Disbursement Agreement Event of Default; or
(b) Any representation or warranty made or deemed made by
Wynn Resorts Holdings, the Completion Guarantor or any Loan Party herein or in
any other Loan Document or that is contained in any certificate, document or
financial or other statement furnished by it at any time under or in
connection with this Agreement or any such other Loan Document shall prove to
have been inaccurate in any material respect on or as of the date made or
deemed made; provided, that the inaccuracy of any representation or warranty
contained only in the Disbursement Agreement shall constitute an Event of
Default hereunder only to the extent such inaccuracy constitutes a
Disbursement Agreement Event of Default; or
(c) (i) Any Loan Party shall default in the observance or
performance of any covenant or agreement contained in Section 6.2(m), Section
6.4(a) or Section 7 hereof, (ii) the Completion Guarantor shall default in the
observance or performance of any covenant or agreement contained in the
Completion Guaranty, (iii) an "Event of Default" under and as defined in any
Mortgage shall have occurred and be continuing, (iv) a Disbursement Agreement
Event of Default shall have occurred and be continuing or (v) any Loan Party
shall fail to at all times maintain in full force and effect the insurance
policies and programs required by Section 6.5(d) (except for automobile,
workers compensation, pollution liability and design errors and omissions
insurance); or
(d) Wynn Resorts Holdings or any Loan Party shall default in
the observance or performance of any other covenant or agreement contained in
this Agreement or any other Loan Document to which it is a party (other than
as provided in subsections (a) through (c) of this Section), and such default
shall continue unremedied for a period of 30 days after the earlier of (i) the
Borrower or any other Loan Party becoming aware of such default or (ii)
receipt by the Borrower or any other Loan Party of written notice from the
Administrative Agent or any Lender of such default; provided, that the failure
to perform or comply with any such provision of the Disbursement Agreement
shall constitute an Event of Default hereunder only to the extent such failure
to perform or to comply constitutes a Disbursement Agreement Event of Default;
or
(e) The Borrower or any other Loan Party shall (i) default
in making any payment of any principal of or interest on any Indebtedness
(other than Indebtedness referred in Section 8(a)) beyond the period of grace,
if any, provided in the instrument or agreement under which such Indebtedness
was created; or (ii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or beneficiary)
to cause with the giving of notice and after the expiration of all grace and
cure periods related thereto immediately such Indebtedness to become due prior
to its stated maturity or (in the case of any such Indebtedness constituting a
Guarantee Obligation) to become payable; provided, that a default, event or
condition described in subsection (i) or (ii) of this subsection (e) shall not
at any time constitute an Event of Default unless, at such time, one or more
defaults, events or conditions of the type described in subsections (i) and
(ii) of this subsection (e) shall have occurred and be continuing with respect
to Indebtedness the outstanding principal amount of which exceeds in the
aggregate $10,000,000; provided, further, that clause (ii) above shall not
apply to (A) Indebtedness that becomes due solely as a result of the voluntary
sale or transfer of property or assets or as a result of a mandatory
prepayment or a regularly scheduled repayment or (B) prepayments that become
due as a result of any incurrence of Indebtedness (in each case to the extent
such sale, transfer or incurrence is permitted by the terms of such
Indebtedness); or
(f) (i) Wynn Resorts Holdings, the Completion Guarantor, the
Borrower or any other Loan Party shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for it or
for all or any substantial part of its assets, or Wynn Resorts Holdings, the
Completion Guarantor, the Borrower or any other Loan Party shall make a
general assignment for the benefit of its creditors; or (ii) there shall be
commenced against Wynn Resorts Holdings, the Completion Guarantor, the
Borrower or any other Loan Party any case, proceeding or other action of a
nature referred to in subsection (i) above that (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii) there
shall be commenced against Wynn Resorts Holdings, the Completion Guarantor,
the Borrower or any other Loan Party any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets that results in the
entry of an order for any such relief that shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the entry
thereof; or (iv) Wynn Resorts Holdings, the Completion Guarantor, the Borrower
or any other Loan Party shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set forth in
subsection (i), (ii), or (iii) above; or (v) Wynn Resorts Holdings, the
Completion Guarantor, the Borrower or any other Loan Party shall generally
not, or shall admit in writing its inability to, pay its debts as they become
due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of
any Loan Party or any Commonly Controlled Entity, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate, any
Single Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is likely to result in the termination of such Plan
for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA other than in a standard
termination under Section 4041(b) of ERISA, (v) any Loan Party or any Commonly
Controlled Entity shall, or is reasonably likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any Loan Party, or any of their Subsidiaries or any
Commonly Controlled Entity shall be required to make during any Fiscal Year
payments pursuant to any employee welfare benefit plan (as defined in Section
3(1) of ERISA) that provides benefits to retired employees (or their
dependents), other than as required by Sections 601 et. seq. of ERISA, Section
4980B of the Code, or the corresponding provisions of applicable state law;
and in each case in subsections (i) through (vi) above, such event or
condition, together with all other such events or conditions, if any, could
reasonably be expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered
against any Loan Party involving for the Loan Parties, taken as a whole, a
liability (to the extent not paid or adequately covered by insurance as to
which the relevant insurance company has acknowledged coverage) of $10,000,000
or more, and enough of such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the entry
thereof to reduce the aggregate liability therefor below $10,000,000; or
(i) Any of the Security Documents or the guarantee contained
in Section 2 of the Guarantee shall cease, for any reason (other than pursuant
to the terms thereof), to be in full force and effect, or any Loan Party shall
so assert or shall assert that any provision of any Loan Document is not in
full force and effect, or any Lien created by any of the Security Documents
shall cease to be enforceable and of the same effect and priority purported to
be created thereby; provided, that no default, event or condition described in
this paragraph (i) with respect to any Security Document existing solely as a
result of any action or failure to act on the part of a party to any such
Security Document other than a Loan Party shall constitute a Default or Event
of Default; or
(j) Any of the Operative Documents shall terminate or be
terminated or canceled, become invalid or illegal or otherwise cease to be in
full force and effect prior to its stated expiration date or the Borrower, any
other Loan Party or any other Person shall breach or default under any term,
condition, provision, covenant, representation or warranty contained in any
Project Document (after the giving of any applicable notice and the expiration
of any applicable grace period); provided, that the occurrence of any of the
foregoing events with respect to any Project Document shall constitute an
Event of Default hereunder only if the same could reasonably be expected to
result in a Material Adverse Effect and the same shall continue unremedied for
thirty (30) days after the earlier of (i) the Borrower or any other Loan Party
becoming aware of such occurrence or (ii) receipt by the Borrower or any other
Loan Party of written notice from the Administrative Agent or any Lender of
such occurrence; provided, however, that in the case of any such Project
Document, if the occurrence is the result of actions or inactions by a party
other than a Loan Party, then no Event of Default shall be deemed to have
occurred as a result thereof if the Borrower provides written notice to the
Administrative Agent immediately upon (but in no event more than five (5)
Business Days after) the Borrower or any Loan Party becoming aware of, or
receiving notice of, such occurrence that the relevant Loan Party intends to
replace such Project Document and (x) such Loan Party obtains a replacement
obligor or obligors for the affected party, (y) such Loan Party enters into a
replacement Project Document on terms no less beneficial to such Loan Party
and the Secured Parties in any material respect than the Project Document
being replaced within sixty (60) days of such occurrence; provided, however,
that the replacement Project Document may require the applicable Loan Party to
pay amounts under the replacement Project Document in excess of those that
would have been payable under the replaced Project Document and (z) such
occurrence, after considering any replacement obligor and replacement Project
Document and the time required to implement such replacement, has not had and
could not reasonably be expected to have a Material Adverse Effect; provided,
further, that a breach, default or termination under any Construction
Agreement shall constitute an Event of Default hereunder only to the extent
such breach, default or termination constitutes a Disbursement Agreement Event
of Default; or
(k) The obligor on any Macau Loan fails to pay any principal
or interest when due in accordance with the terms of such Macau Loan (after
the expiration of any related notice, grace or cure periods except where such
failure to pay arises as a result of any payment blockage, subordination or
similar restriction on such payment under any documents or other agreements to
which the Macau Loans are effectively subordinated); or
(l) A Change of Control shall occur; or
(m) Any Subordinated Debt or the Management Fees payable
under the Management Agreement shall cease, for any reason, to be validly
subordinated to the Obligations of the Loan Parties as provided in the
Management Agreement, the Management Fee Subordination Agreement and the
documentation, instruments or other agreements related to the Subordinated
Debt, as the case may be; or
(n) A License Revocation that continues for three
consecutive Business Days affecting gaming operations accounting for five
percent or more of the consolidated gross revenues (calculated in accordance
with GAAP) of the Borrower related to gaming operations; or
(o) The Borrower or any other Loan Party shall fail to
observe, satisfy or perform, or there shall be a violation or breach of, any
of the terms, provisions, agreements, covenants or conditions attaching to or
under the issuance to such Person of any Permit or any such Permit or any
provision thereof shall be suspended, revoked, cancelled, terminated or
materially and adversely modified or fail to be in full force and effect or
any Governmental Authority shall challenge or seek to revoke any such Permit
if such failure to perform, violation, breach, suspension, revocation,
cancellation, termination or modification could reasonably be expected to have
a Material Adverse Effect; or
(p) Wynn Resorts Holdings takes any actions in violation of
Section 7.24.
then, and in any such event, (A) if such event is an Event of Default
specified in subsection (i) or (ii) of paragraph (f) above with respect to
Wynn Resorts Holdings or any Loan Party, automatically the Commitments shall
immediately terminate and the Loans hereunder (with accrued interest thereon)
and all other Obligations (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder) shall
immediately become due and payable and (B) if such event is any other Event of
Default, either or both of the following actions may be taken: (i) with the
consent of the Required Facility Lenders for the respective Facility, the
Administrative Agent may, or upon the request of the Required Facility Lenders
for the respective Facility, the Administrative Agent shall, by notice to the
Borrower, declare the Revolving Credit Commitments and/or the Term Loan
Commitments, as the case may be, to be terminated forthwith, whereupon the
applicable Commitments shall immediately terminate; and (ii) with the consent
of the Required Lenders, the Administrative Agent may, or upon the request of
the Required Lenders, the Administrative Agent shall, by notice to the
Borrower, declare the Loans hereunder (with accrued interest thereon) and all
other Obligations (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder) to be due
and payable forthwith, whereupon the same shall immediately become due and
payable. Upon the occurrence and during the continuation of an Event of
Default, the Administrative Agent and the Lenders shall be entitled to
exercise any and all remedies available under the Security Documents (subject
to applicable Nevada Gaming Laws and the UCC and securing any required Nevada
Gaming Approvals), including, without limitation, the Security Agreement and
the Mortgages, or otherwise available under applicable law, in equity or
otherwise, including, without limitation, the right to (I) enter into
possession of the Project and perform any and all work and labor necessary to
complete the Project or to operate and maintain the Project and (II) set off
and apply all monies on deposit in any Account or any amounts paid under the
Completion Guaranty or any other monies of a Loan Party on deposit with the
Administrative Agent or any Lender to the satisfaction of the Obligations.
With respect to all Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to this
paragraph, the Borrower shall at such time deposit in a cash collateral
account opened by the Administrative Agent an amount in immediately available
funds equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit (and the Borrower hereby grants to the Administrative Agent, for the
ratable benefit of the Secured Parties, a continuing security interest in all
amounts at any time on deposit in such cash collateral account to secure the
undrawn and unexpired amount of such Letters of Credit and all other
Obligations). If at any time the Administrative Agent determines that any
funds held in such cash collateral account are subject to any right or claim
of any Person other than the Administrative Agent and the Secured Parties or
that the total amount of such funds is less than the aggregate undrawn and
unexpired amount of outstanding Letters of Credit, the Borrower shall,
forthwith upon demand by the Administrative Agent, pay to the Administrative
Agent, as additional funds to be deposited and held in such cash collateral
account, an amount equal to the excess of (a) such aggregate undrawn and
unexpired amount over (b) the total amount of funds, if any, then held in such
cash collateral account that the Administrative Agent determines to be free
and clear of any such right and claim. Amounts held in such cash collateral
account shall be applied by the Administrative Agent to the payment of drafts
drawn under such Letters of Credit, and the unused portion thereof after all
such Letters of Credit shall have expired or been fully drawn upon, if any,
shall be applied to repay other Obligations of the Loan Parties. After all
such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other Obligations
of the Loan Parties shall have been paid in full, the balance, if any, in such
cash collateral account shall be returned to the Loan Parties (or such other
Person as may be lawfully entitled thereto). Notwithstanding anything to the
contrary contained in this Agreement, in the event the consent of the Lenders
(whether the Required Lenders, the Required Facility Lenders for a particular
Facility or otherwise) is required in connection with the exercise of remedies
pursuant to this Section 8, for purposes of determining the required lender
consent pursuant to the applicable definitions thereto (whether the "Required
Lenders", the "Required Facility Lenders" or otherwise), the Commitments of
the Lenders shall be deemed terminated. Anything in this Section 8 to the
contrary notwithstanding, the Administrative Agent shall, at the request of
the Required Lenders, rescind and annul any acceleration of the Loans and the
termination of the Commitments by written instrument filed with the Borrower.
Upon any such rescission and annulment, the Administrative Agent shall
promptly return to the Borrower any cash collateral delivered pursuant to this
paragraph.
SECTION 9. THE AGENTS; THE ARRANGERs; THE MANAGERS
9.1 Appointment. Each Lender hereby irrevocably designates
and appoints the Agents as the agents of such Lender under this Agreement and
the other Loan Documents, and each such Lender irrevocably authorizes each
Agent, in such capacity, to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and to exercise such
powers and perform such duties as are expressly delegated to such Agent by the
terms of this Agreement and the other Loan Documents, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere in this Agreement, no Agent shall have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against any Agent.
9.2 Delegation of Duties. Each Agent, with respect to the
Initial Lending Institution Provisions, each Initial Lending Institution or,
with respect to Section 7.23 or the Disbursement Agreement, each Arranger, may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. Each Lender hereby
acknowledges and consents to the Administrative Agent's appointment of the
Collateral Agent pursuant to and in accordance with the terms of the
Intercreditor Agreement. No Agent, Initial Lending Institution (with respect
to the Initial Lending Institution Provisions) or Arranger (with respect to
Section 7.23 and the Disbursement Agreement) shall be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it
with reasonable care.
9.3 Exculpatory Provisions. No Arranger, Manager, Agent,
Initial Lending Institution (with respect to the Initial Lending Institution
Provisions) nor any of their respective officers, directors, partners,
employees, agents, attorneys and other advisors, attorneys-in-fact or
affiliates shall be (i) liable to any other Arranger, Manager, Agent or
Initial Lending Institution for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted solely and proximately from its or such Person's own gross
negligence or willful misconduct in breach of a duty owed to the party
asserting liability) or (ii) responsible in any manner to any of the Lenders
for any recitals, statements, representations or warranties made by any Person
or any officer thereof contained in this Agreement or any other Loan Document
or in any certificate, report, statement or other document referred to or
provided for in, or received by the Arrangers, the Managers, the Agents or,
with respect to the Initial Lending Institution Provisions, the Initial
Lending Institutions under or in connection with, this Agreement or any other
Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Person party thereto to perform its obligations
hereunder or thereunder. Neither the Agents, the Managers, the Arrangers nor
the Initial Lending Institutions (with respect to the Initial Lending
Institution Provisions) shall be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Person.
9.4 Reliance. Each Agent, each Initial Lending Institution
(with respect to the Initial Lending Institution Provisions) and each Arranger
(with respect to Section 7.23 and the Disbursement Agreement) shall be
entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Loan Parties), independent accountants and other experts selected by such
Agent. The Agents may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. Each
Agent, each Initial Lending Institution (with respect to the Initial Lending
Institution Provisions) and each Arranger (with respect to Section 7.23 and
the Disbursement Agreement) shall be fully justified in failing or refusing to
take any action under this Agreement or any other Loan Document unless it
shall first receive such advice or concurrence of the Required Lenders or the
requisite Lenders required under Section 10.1 to authorize or require such
action (or, if so specified by this Agreement, all Lenders) as it deems
appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense that may be incurred by it
by reason of taking or continuing to take any such action. Each Agent, each
Initial Lending Institution (with respect to the Initial Lending Institution
Provisions) and each Arranger (with respect to Section 7.23 and the
Disbursement Agreement) shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders or the requisite Lenders
under Section 10.1 to authorize or require such action (or, if so specified by
this Agreement, all Lenders), and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Loans and Letters of Credit.
9.5 Notice of Default. No Agent shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Agent has received notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the requisite Lenders (or, if so specified by this Agreement, all
Lenders); provided, that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
9.6 Non-Reliance on Agents, Managers, Arrangers and Other
Lenders. Each Lender expressly acknowledges that neither the Arrangers, the
Agents, the Managers nor any of their respective officers, directors,
employees, agents, attorneys and other advisors, partners, attorneys-in-fact
or affiliates have made any representations or warranties to it and that no
act by any Arranger, Agent or Manager hereinafter taken, including any review
of the affairs of a Loan Party, the Completion Guarantor, Wynn Resorts, Wynn
Resorts Holdings or any other Person, shall be deemed to constitute any
representation or warranty by any Arranger, Agent or Manager to any Lender.
Each Lender represents to the Arrangers, the Agents and the Managers that it
has, independently and without reliance upon any Arranger, Agent or Manager or
any other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition, prospects and
creditworthiness of the Loan Parties and the Completion Guarantor and their
affiliates and made its own decision to make its Loans (and in the case of the
Issuing Lender, its Letters of Credit) hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon any Arranger, Agent or Manager or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking
or not taking action under this Agreement and the other Loan Documents, and to
make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition, prospects and
creditworthiness of the Loan Parties, Wynn Resorts, Wynn Resorts Holdings and
the Completion Guarantor and their affiliates. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, no Arranger, Agent or Manager shall have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of any Loan Party,
Wynn Resorts, Wynn Resorts Holdings or the Completion Guarantor or any other
Person that may come into the possession of such Arranger, Agent or Manager or
any of its officers, directors, employees, agents, attorneys and other
advisors, partners, attorneys-in-fact or affiliates.
9.7 Indemnification. (a) The Lenders agree to indemnify each
Arranger, Agent and Manager in its capacity as such (to the extent not
reimbursed by the Borrower as may be required hereunder and without limiting
any obligation of the Borrower to do so), ratably according to their
respective Aggregate Exposure Percentages in effect on the date on which
indemnification is sought under this Section 9.7(a) (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with such Aggregate
Exposure Percentages immediately prior to such date), from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever that may at any
time (including, without limitation, at any time following the payment of the
Loans) be imposed on, incurred by or asserted against such Arranger, Agent or
Manager in any way relating to or arising out of, the Commitments, this
Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by such Arranger, Agent or Manager
under or in connection with any of the foregoing (including, without
limitation, pursuant to the Disbursement Agreement); provided, that no Lender
shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted solely and proximately
from such Arranger's, Agent's or Manager's gross negligence or willful
misconduct in breach of a duty owed to such Lender. The agreements in this
Section 9.7(a) shall survive the payment of the Loans and Letters of Credit
and all other amounts payable hereunder.
(b) The Lenders agree to indemnify each Initial Lending
Institution in its capacity as such (to the extent not reimbursed by the
Borrower as may be required hereunder and without limiting any obligation of
the Borrower to do so), ratably according to their respective Aggregate
Exposure Percentages in effect on the date on which indemnification is sought
under this Section 9.7(b) (or, if indemnification is sought after the date
upon which the Commitments shall have terminated and the Loans shall have been
paid in full, ratably in accordance with such Aggregate Exposure Percentages
immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time
(including, without limitation, at any time following the payment of the
Loans) be imposed on, incurred by or asserted against such Initial Lending
Institution in any way relating to or arising out of any action taken or
omitted by such Initial Lending Institution under or in connection with any
Initial Lending Institution Provisions; provided, that no Lender shall be
liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court
of competent jurisdiction to have resulted solely and proximately from such
Initial Lending Institution's gross negligence or willful misconduct. The
agreements in this Section 9.7(b) shall survive the payment of the Loans and
Letters of Credit and all other amounts payable hereunder.
9.8 Arrangers, Agents and Managers in Their Individual
Capacities. Each Arranger, Agent and Manager and their respective affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with the Completion Guarantor, any Loan Party, Wynn Resorts or Wynn
Resorts Holdings as though such Arranger was not an Arranger, such Agent was
not an Agent and such Manager was not a Manager. With respect to any Loans
made or renewed by it and with respect to any Letter of Credit issued or
participated in by it, each Arranger, Agent and Manager shall have the same
rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not an Arranger, an Agent
or a Manager, as the case may be, and the terms "Lender" and "Lenders" shall
include each Arranger, Agent and Manager in their respective individual
capacities.
9.9 Successor Agents. The Administrative Agent may resign as
Administrative Agent upon 30 days' notice to the Lenders and the Borrower. If
the Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 8(a) or
Section 8(f) with respect to the Borrower shall have occurred and be
continuing) be subject to approval by the Borrower (which approval shall not
be unreasonably withheld, conditioned or delayed), whereupon such successor
agent shall succeed to the rights, powers and duties of the Administrative
Agent, and the term "Administrative Agent" shall mean such successor agent
effective upon such appointment and approval, and the former Administrative
Agent's rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or any holders of
the Loans or Letters of Credit. If a successor Administrative Agent shall not
have been so appointed within said 30 day period, the Administrative Agent
shall appoint a successor agent for the Lenders, which successor agent shall
(unless an Event of Default under Section 8(a) or Section 8(f) with respect to
the Borrower shall have occurred and be continuing) be subject to approval by
the Borrower (which approval shall not be unreasonably withheld, conditioned
or delayed), whereupon such successor agent shall succeed to the rights,
powers and duties of the Administrative Agent, and the term "Administrative
Agent" shall mean such successor agent effective upon such appointment and
approval, and the former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans or Letters of Credit. If no
successor agent has accepted appointment as Administrative Agent by the date
that is 40 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective, and the Lenders shall assume and
perform all of the duties of the Administrative Agent hereunder until such
time, if any, as the Required Lenders appoint a successor agent as provided
for above. After any retiring Administrative Agent's resignation as the
Administrative Agent, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Administrative Agent under this Agreement and the other Loan Documents.
9.10 Authorization. The Administrative Agent is hereby
irrevocably authorized by each of the Lenders to release any Lien (or to
direct the Collateral Agent or any other Person to release any Lien) covering
any Property of the Completion Guarantor, Wynn Resorts Holdings, the Borrower
or any of the other Loan Parties or any other Person that is the subject of a
Disposition which is permitted by this Agreement or any other Loan Document or
which has been consented to in accordance with Section 10.1. The
Administrative Agent is further authorized by the Lenders to enter into
agreements supplemental hereto with any Loan Party for the purpose of curing
any formal defect, inconsistency, omission or ambiguity in this Agreement or
any Loan Document to which it is a party (without any consent or approval by
the Lenders).
9.11 The Arrangers, Managers, Syndication Agent and
Documentation Agents. The Arrangers (except with respect to Section 7.23 and
the Disbursement Agreement), Managers, the Syndication Agent and the
Documentation Agent, each in their capacity as such, shall have no duties or
responsibilities, and shall incur no liability, under this Agreement and the
other Loan Documents.
9.12 Withholdings. (a) To the extent required by any
applicable law, the Administrative Agent may withhold from any interest
payment to any Lender an amount equivalent to any applicable withholding tax.
If the forms or other documentation required by Section 2.20(f) are not
delivered to the Administrative Agent, then the Administrative Agent may
withhold from any interest payment to any Lender not providing such forms or
other documentation, an amount equivalent to the applicable withholding tax.
(b) If the Internal Revenue Service or any authority of the
United States or other jurisdiction asserts a claim that the Administrative
Agent did not properly withhold tax from amounts paid to or for the account of
any Lender (because the appropriate form was not delivered, was not properly
executed, or because such Lender failed to notify the Administrative Agent of
a change in circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason), such Lender shall
indemnify the Administrative Agent fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax or otherwise, including
penalties and interest, together with all expenses incurred, including legal
expenses, allocated staff costs and any out of pocket expenses.
(c) If any Lender sells, assigns, grants a participation in,
or otherwise transfers its rights under this Agreement, the purchaser,
assignee, participant or transferee, as applicable, shall comply and be bound
by the terms of Sections 2.20(f) and 2.20(g) and this Section 9.12.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. (a) No amendment, supplement,
modification or waiver of any provision of this Agreement or any other Loan
Document shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders (or, with the written consent of the
Required Lenders, the Administrative Agent) and each Loan Party party thereto.
Notwithstanding the foregoing but subject to the Borrower's rights under
Section 2.25, no such waiver and no such amendment, supplement or modification
shall (i) forgive the principal amount or extend the final scheduled date of
maturity of any Loan or Reimbursement Obligation, extend the scheduled date of
any amortization payment in respect of any Term Loan, reduce the stated rate
of any interest or fee payable hereunder or forgive the payment of any
interest or fee payable hereunder or extend the scheduled date of any payment
of any interest or fee payable hereunder, in each case without the consent of
each Lender (other than a Defaulting Lender) directly affected thereby (such
consent being in lieu of the consent of the Required Lenders) or increase the
amount or extend the expiration date of any Commitment of any Lender without
the consent of such Lender (such consent being in lieu of the consent of the
Required Lenders); (ii) amend, modify or waive any provision of this Section
10.1(a) or reduce any percentage or number specified in the definition of
Required Lenders, Required Facility Lenders, Applicable Facility Lenders,
Majority of the Arrangers or Majority Initial Lending Institutions, consent to
the assignment or transfer by any Loan Party, the Completion Guarantor or Wynn
Resorts Holdings of any of its rights and obligations under this Agreement and
the other Loan Documents, amend, supplement, modify or waive Section 2.12(e),
release all or substantially all of the Collateral or release a significant
Guarantor from its guarantee obligations under the Guarantee, in each case
without the consent of all Lenders (other than Defaulting Lenders); (iii)
amend, modify or waive any provision of Section 9 without the consent of any
Arranger, Agent, Manager or Initial Lending Institution directly affected
thereby (in addition to the consent of the Required Lenders); (iv) amend,
modify or waive any provision of Section 2.6 or 2.7 without the written
consent of the Swing Line Lender (in addition to the consent of the Required
Lenders); (v) amend, modify or waive any provision of Section 2.12(g) or
Section 2.18 without the consent of the Required Facility Lenders with respect
to the Facility directly affected thereby (such consent being in lieu of the
consent of the Required Lenders); (vi) amend, modify or waive any provision of
Section 3 without the consent of the Issuing Lender (in addition to the
consent of the Required Lenders), (vii) amend, modify or waive any condition,
provision or requirement to the funding of Loans (or the release of the
proceeds thereof pursuant to the Disbursement Agreement) or the issuance or
amendment of Letters of Credit without, in each case, the consent of (I) in
the case of Term Loans, the Required Facility Lenders with respect to the Term
Loan Facility and (II) in the case of Revolving Credit Loans or the issuance
or amendment of Letters of Credit, the Required Facility Lenders with respect
to the Revolving Credit Facility (in each case such consent being in lieu of
the consent of the Required Lenders), (viii) amend, modify or waive any
provision of Section 2.4.1 of the Disbursement Agreement without the written
consent of all Lenders (other than Defaulting Lenders), (ix) amend, modify or
waive Section 2.1(b) without the consent of each Term Loan Lender (such
consent being in lieu of the consent of the Required Lenders) or (x) amend,
modify or waive Section 7.23 without the consent of the Majority of the
Arrangers in consultation with the Construction Consultant (such consent being
in lieu of the consent of the Required Lenders); provided, however, that to
the extent that (A) determinations, waivers or amendments pursuant to the
Initial Lending Institution Provisions are to be made by the Initial Lending
Institutions or (B) determinations, waivers or amendments pursuant to the
Disbursement Agreement are to be made by the Majority of the Arrangers, such
determinations shall be made at the sole discretion of the Majority Initial
Lending Institutions and the Majority of the Arrangers, respectively, and
shall not require the consent of any other Lender pursuant to this Section
10.1 or otherwise; provided that if any such determinations, waivers or
amendments are not made by the Initial Lending Institutions or the Majority of
the Arrangers, respectively, then any such determinations, waivers or
amendments may be made with the approval of the Required Lenders. Any such
waiver and any such amendment, supplement, modification or determination shall
apply equally to each of the Lenders and shall be binding upon the Loan
Parties, the Lenders, the Agents, the Arrangers, the Managers and all future
holders of the Loans and Letters of Credit. In the case of any waiver, the
Loan Parties, the Lenders, the Arrangers, the Managers and the Agents shall be
restored to their former position hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
waived and not continuing; but no such waiver shall extend to any subsequent
or other Default or Event of Default, or impair any right consequent thereon.
Any such waiver, amendment, supplement or modification shall be effected by a
written instrument signed by the parties required to sign pursuant to the
foregoing provisions of this Section 10.1; provided, that delivery of an
executed signature page of any such instrument by facsimile transmission shall
be effective as delivery of a manually executed counterpart thereof.
Notwithstanding the foregoing but subject to determinations to be made
pursuant to Sections 3.2.10, 5.1.4(b), 8.1 and 9.6 of the Disbursement
Agreement, the definition of "Consent" set forth in the Disbursement Agreement
and Exhibit L to the Disbursement Agreement, which in each case shall be made
in the sole discretion of the Administrative Agent, to the extent the
Administrative Agent is entitled or required to make any determinations
(whether a consent, waiver or otherwise) under the Intercreditor Agreement or
the Disbursement Agreement, the Administrative Agent shall make such
determinations upon the advice of the Required Lenders
(b) Notwithstanding anything to the contrary in this Section
10.1, (i) the parties to the Administrative Agent Fee Letter and the Facility
Fee Letter may, (A) enter into written amendments, supplements or
modifications to the Administrative Agent Fee Letter or the Facility Fee
Letter, as the case may be (including amendments and restatements thereof),
for the purpose of adding any provisions thereto or changing in any manner the
rights thereunder of the parties thereto or (B) waive, on such terms and
conditions as may be specified in the instrument of waiver, (1) any of the
requirements of the Administrative Agent Fee Letter or the Facility Fee
Letter, as the case may be, or (2) any Default or Event of Default to the
extent (and only to the extent) relating to the Administrative Agent Fee
Letter or the Facility Fee Letter, it being understood that the waiver of any
Default or Event of Default (or portion thereof) relating to any of the other
Loan Documents may be accomplished only as set forth in the immediately
preceding paragraph, (ii) this Agreement and any other Loan Document may be
amended, amended and restated, modified or supplemented with the written
consent of the applicable Loan Parties and the Required Lenders (A) to
increase the aggregate Commitments of the Lenders, (B) to add one or more
additional credit facilities of Loans to this Agreement and to permit the
extensions of credit from time to time outstanding thereunder and the accrued
interest and fees in respect thereof to share ratably in the benefits of this
Agreement and other Loan Documents with the other then outstanding Obligations
and (C) to include appropriately the lenders holding such additional credit
facilities in any determination of the Required Lenders, Required Facility
Lenders and Applicable Facility Lenders and (iii) any Permitted C-Corp.
Conversion shall require the consent of the Required Lenders only.
(c) The Borrower and the other Loan Parties may, in whole or
in part, design, develop and construct the Phase II Project as any one or more
of the following: (i) a condominium development, (ii) a timeshare development
or (iii) such other development pursuant to which the Borrower and the other
Loan Parties would Dispose of units and/or other ownership interests in the
Phase II Project to the public for residential and/or vacation/resort living.
The parties agree that any such Dispositions shall not be considered
Disposition of inventory in the ordinary course of business. In order to
accommodate the Disposition of units in the Phase II Project as described
above, certain amendments to this Agreement and the other Loan Documents may
be necessary. The parties agree that any Disposition of units and/or other
ownership interests in the Phase II Project as described above would not
constitute a release of all or substantially all of the Collateral in
accordance with Section 10.1(a)(ii) and any such Disposition shall require the
consent of the Required Lenders only.
10.2 Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including
by telecopy), and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made when delivered, or three Business Days after
being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed (a) in the case of the Borrower, the
Arrangers, the Managers and the Agents, as follows and (b) in the case of the
Lenders, as set forth on Schedule I to the Lender Addendum to which such
Lender is a party or, in the case of a Lender which becomes a party to this
Agreement pursuant to an Assignment and Acceptance, in such Assignment and
Acceptance or (c) in the case of any party, to such other address as such
party may hereafter notify to the other parties hereto:
The Borrower: Wynn Las Vegas, LLC
3131 Las Vegas Boulevard, South
Las Vegas, Nevada 89109
Attention: President
Telecopy: (702) 770-1100
Telephone: (702) 770-7700
with a copy to: Wynn Las Vegas, LLC
3131 Las Vegas Boulevard, South
Las Vegas, Nevada 89109
Attention: General Counsel
Telecopy: (702) 770-1520
Telephone: (702) 770-2111
with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071
Attention: Jerome L. Coben, Esq.
Telecopy: (213) 621-5010
Telephone: (213) 687-5000
The Administrative Agent Deutsche Bank Trust Company Americas
or Swing Line Lender: 200 Crescent Court
Suite 550
Dallas, Texas 75201
Attention: Gerald K. Dupont
Telecopy: (214) 740-7910
Telephone: (214) 740-7913
Deutsche Bank Securities Inc., 200 Crescent Court
as lead arranger and joint Suite 550
book running manager: Dallas, Texas 75201
Attention: Gerald K. Dupont
Telecopy: (214) 740-7910
Telephone: (214) 740-7913
Banc of America Securities 9 West 57th Street, 32nd Floor
LLC, lead arranger and joint New York, New York 10019
book running manager: Attention: Bruce Thompson
Telecopy: (212) 847-6441
Telephone: (212) 847-6456
Bank of America, N.A., as 1850 Gateway Boulevard
Syndication Agent CA 4-706-05-09
Concord, California 94520-3282
Attention: Nina Lemmer
Telecopy: (888) 969-9281
Telephone: (925) 675-7478
Bear, Stearns & Co. Inc., as 383 Madison Avenue, 8th Floor
arranger and joint book New York, New York 10179
running manager: Attention: Stephen O'Keefe
Telecopy: (212) 272-9184
Telephone: (212) 272-9430
Bear Stearns Corporate Lending 383 Madison Avenue, 8th Floor
Inc., as joint documentation agent: New York, New York 10179
Attention: Stephen O'Keefe
Telecopy: (212) 272-9184
Telephone: (212) 272-9430
J.P. Morgan Securities Inc., 277 Park Avenue and
as arranger joint book running New York, New York 10172
manager: Attention: Don Shokrian
Telecopy: (212) 534-0574
Telephone: (212) 622-2166
JPMorgan Chase Bank, N.A., as joint 277 Park Avenue
documentation agent: New York, New York 10172
Attention: Don Shokrian
Telecopy: (646) 534-0574
Telephone: (212) 622-2166
SG Americas Securities, LLC, as arranger 1221 Avenue of the Americas
and joint book running manager: New York, New York 10020
Attention: Michael Kim
Telecopy: (646) 534-0574
Telephone: (212) 278-5368
Societe Generale, as joint documentation 2001 Ross Avenue, Suite 4900
agent: Dallas, Texas 75201
Attention: Thomas Day
Telecopy: (214) 979-2727
Telephone: (214) 979-2774
in the case of any Agent, Manager or Latham & Watkins LLP
Arranger, with a copy to: 600 West Broadway, Suite 1800
San Diego, CA 92101
Attention: Brett Rosenblatt, Esq.
Telecopy: (619) 696-7419
Telephone: (619) 236-1234
Issuing Lender: As notified by the Issuing Lender to the
Administrative Agent and the Borrower
Notwithstanding the foregoing, each Lender agrees and acknowledges that any
notice, request, demand or other information to be delivered by the
Administrative Agent to such Lender pursuant to this Agreement or any of the
other Loan Documents (whether pursuant to Section 6.1, 6.2 or otherwise) shall
be effectively delivered to such Lender by the Administrative Agent posting
such notice, request, demand or other information to IntraLinks.
10.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of any Arranger, any Agent, any
Manager or any Lender, any right, remedy, power or privilege hereunder or
under the other Loan Documents shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder until
repayment of the Loans in full, no Letters of Credit remain outstanding
(unless otherwise cash collateralized pursuant to the terms of this Agreement)
and the termination of the Commitments.
10.5 Payment of Expenses; Indemnification. The Borrower
agrees (a) to pay or reimburse the Arrangers, the Agents, the Managers, the
Securities Intermediary and, with respect to the Initial Lending Institution
Provisions, the Initial Lending Institutions for all their reasonable and
itemized out-of-pocket costs and expenses incurred in connection with the
syndication of the Facilities (other than fees payable to syndicate members)
and the preparation, negotiation and execution of, and any amendment,
supplement or modification to, this Agreement and the other Loan Documents and
any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby (including, without limitation, the Arrangers' and Initial Lending
Institutions' administration and other actions in furtherance of Section 7.23,
the Disbursement Agreement and the Initial Lending Institution Provisions, as
the case may be) including, without limitation, the reasonable fees and
disbursements and other charges of the Collateral Agent, the Nevada Collateral
Agent and Latham & Watkins LLP, special counsel to the Administrative Agent
and the Disbursement Agent, and any local counsel in the State of Nevada
retained by the Administrative Agent and the charges of IntraLinks and the
fees, expenses and disbursements of the Construction Consultant and the
Insurance Advisor, (b) to pay or reimburse each Lender, Arranger, Manager and
Agent (after the occurrence of an Event of Default) for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the fees and disbursements of
counsel (including the allocated fees and disbursements and other charges of
in-house counsel) to each Lender and of counsel to each Arranger, Manager and
Agent and the charges of IntraLinks, (c) to pay, indemnify, and hold each
Lender, Arranger, Manager and Agent harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
Loan Party's delay in paying, stamp, excise and other taxes, if any, which may
be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any
waiver or consent under or in respect of, this Agreement, the other Loan
Documents and any such other documents and (d) to pay, indemnify, and hold
each Lender, Arranger, Agent, Manager, Securities Intermediary, their
respective affiliates, and their respective officers, directors, partners,
trustees, employees, affiliates, advisors, agents, attorneys-in-fact and
controlling persons (each, an "Indemnitee") harmless from and against any and
all other liabilities, obligations, losses, damages, penalties, actions,
judgments or suits, of any kind or nature whatsoever with respect to or
arising out of the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other
documents, including, without limitation, any of the foregoing relating to the
use of proceeds of the Loans or Letters of Credit, the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of any Loan Party or any of their Properties or the use by
unauthorized persons of information or other materials sent through
electronic, telecommunications or other information transmission systems that
are intercepted by such persons and the reasonable fees, costs and expenses
and disbursements and other charges of legal counsel in connection with
claims, actions or proceedings by any Indemnitee against the Borrower
hereunder (all the foregoing in this subsection (d), collectively, the
"Indemnified Liabilities"), provided, that the Borrower shall have no
obligation hereunder to any Indemnitee with respect to Indemnified Liabilities
to the extent such Indemnified Liabilities are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
solely from the gross negligence or willful misconduct of such Indemnitee in
breach of a duty owed to the Borrower. All amounts due under this Section
shall be payable not later than five Business Days after written demand
therefor. Statements payable by the Borrower pursuant to this Section shall be
submitted to the Borrower in accordance with Section 10.2, or to such other
Person or address as may be hereafter designated by the Borrower in a written
notice to the Administrative Agent. The agreements in this Section shall
survive repayment of the Loans and Letters of Credit and all other amounts
payable hereunder.
10.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Arrangers, the Agents, the Managers, all future
holders of the Loans and Letters of Credit and their respective successors and
assigns, except that the Borrower may not assign or transfer any of its rights
or obligations under this Agreement without the prior written consent of the
Administrative Agent and each Lender. No Lender may assign its rights and
obligations under this Agreement, except as provided in this Section 10.6. Any
purported sale, assignment, participation or other transfer by any Lender of
any of its rights or obligations hereunder, other than as expressly permitted
under this Section 10.6, shall be null and void and of no force and effect.
(b) Any Lender may, without the consent of the Borrower or
any other Person, in accordance with applicable law, at any time sell to one
or more banks, financial institutions or other entities (each, a
"Participant") participating interests in any Loan owing to such Lender, any
Commitment of such Lender or any other interest of such Lender hereunder and
under the other Loan Documents. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such
Lender shall remain the holder of any such Loan for all purposes under this
Agreement and the other Loan Documents, and the Borrower, the Arrangers, the
Agents and the Managers shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. In no event shall any Participant
under any such participation have any right to approve any amendment or waiver
of any provision of any Loan Document, or any consent to any departure by any
Loan Party therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Loans or any fees
payable hereunder, or postpone the date of the final maturity of the Loans, in
each case to the extent subject to such participation. The Borrower agrees
that if amounts outstanding under this Agreement and the Loans are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, provided that, in purchasing
such participating interest, such Participant shall be deemed to have agreed
to share with the Lenders the proceeds thereof as provided in Section 10.7(a)
as fully as if it were a Lender hereunder. The Borrower also agrees that each
Participant shall be entitled to the benefits of Sections 2.19, 2.20 and 2.21
with respect to its participation in the Commitments and the Loans outstanding
from time to time as if it was a Lender; provided, that, in the case of
Section 2.20, such Participant shall have fully complied with the requirements
of Section 2.20 and provided, further, that no Participant shall be entitled
to receive any greater amount pursuant to Section 2.19, 2.20 or 2.21 than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance with
applicable law and upon written notice to the Administrative Agent, at any
time and from time to time assign to any Lender, any Affiliate of the
assigning Lender or of another Lender or any Affiliated Fund of the assigning
Lender or of another Lender (provided, that if any funding obligations are
assigned to such an Affiliate or such an Affiliated Fund, such Affiliate or
Affiliated Fund, as applicable, shall have demonstrable resources to comply
with such obligations) or, with the consent of the Borrower and the
Administrative Agent and, in the case of any assignment of Revolving Credit
Commitments, the written consent of the Issuing Lender and the Swing Line
Lender (which, in the case of the Borrower, the Administrative Agent, the
Issuing Lender and the Swing Line Lender, shall not be unreasonably withheld,
conditioned or delayed), to an additional bank, financial institution or other
entity that is an Eligible Assignee (an "Assignee") all or any part of its
rights and obligations under this Agreement pursuant to an assignment and
acceptance agreement, in the form of Exhibit E hereto (an "Assignment and
Acceptance"), executed by such Assignee and such Assignor (and, where the
consent of the Borrower, the Administrative Agent or the Issuing Lender or the
Swing Line Lender is required pursuant to the foregoing provisions, by the
Borrower and such other Persons) and delivered to the Administrative Agent for
its acceptance and recording in the Register; provided, that no such
assignment to an Assignee (other than any Lender or any Affiliate of the
assigning Lender or of another Lender or Affiliated Fund of the assigning
Lender or of another Lender) shall be in an aggregate principal amount of less
than $5,000,000 with respect to Revolving Credit Commitments or $1,000,000
with respect to Term Loan Commitments, unless otherwise agreed by the Borrower
and the Administrative Agent (provided, that for purposes of the foregoing
limitations only, any two or more funds that concurrently invest in Loans and
are managed by the same investment advisor, or investment advisors that are
Affiliates of one another, shall be treated as a single Assignee). Any such
assignment need not be ratable as among the Facilities. Upon such execution,
delivery, acceptance and recording, from and after the effective date
determined pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment and/or Loans as set forth therein and (y) the
Assignor thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of an Assignor's rights and
obligations under this Agreement, such Assignor shall cease to be a party
hereto). Notwithstanding any provision of this Section, the consent of the
Borrower shall not be required for any assignment that occurs at any time when
any Event of Default shall have occurred and be continuing.
(d) The Administrative Agent shall, on behalf of the
Borrower, maintain at its address referred to in Section 10.2 a copy of each
Assignment and Acceptance delivered to it and a register (the "Register") for
the recordation of the names and addresses of the Lenders and the Commitment
of, and principal amount of the Loans owing to, each Lender from time to time.
The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, the Administrative Agent and the Lenders shall treat
each Person whose name is recorded in the Register as the owner of the Loans
and any Notes evidencing such Loans recorded therein for all purposes of this
Agreement. Any assignment of any Loan, whether or not evidenced by a Note,
shall be effective only upon appropriate entries with respect thereto being
made in the Register (and each Note shall expressly so provide). Any
assignment or transfer of all or part of a Loan evidenced by a Note shall be
registered on the Register only upon surrender for registration of assignment
or transfer of the Note evidencing such Loan, accompanied by a duly executed
Assignment and Acceptance; thereupon one or more new Notes in the same
aggregate principal amount shall be issued to the designated Assignee, and the
old Notes shall be returned by the Administrative Agent to the Borrower marked
"canceled". The Register shall be available for inspection by the Borrower or
any Lender (with respect to any entry relating to such Lender's Loans) at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance
executed by an Assignor and an Assignee (and, in any case where the consent of
any other Person is required by Section 10.6(c), by each such other Person)
together with payment by the Assignee or the Assignor to the Administrative
Agent of a registration and processing fee of $3,500 (except that no such
registration and processing fee shall be payable in the case of an Assignee
which is already a Lender or is an Affiliate of the assigning Lender or of
another Lender or an Affiliated Fund of the assigning Lender or of another
Lender or with respect to the initial syndication of the Commitments), the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such
acceptance and recordation to the Borrower. On or prior to such effective
date, the Borrower, at its own expense, upon request, shall execute and
deliver to the Administrative Agent (in exchange for the Revolving Credit Note
and/or Term Note, as the case may be, of the assigning Lender) a new Revolving
Credit Note and/or Term Note, as the case may be, to such Assignee or its
registered assigns in an amount equal to the Revolving Credit Commitment
and/or Term Loan Commitment, as the case may be, assumed or acquired by it
pursuant to such Assignment and Acceptance and, if the Assignor has retained a
Revolving Credit Commitment and/or Term Loan Commitment, as the case may be,
upon request, a new Revolving Credit Note and/or Term Notes, as the case may
be, to the Assignor or its registered assigns in an amount equal to the
Revolving Credit Commitment and/or Term Loans or Term Loan Commitment, as the
case may be, retained by it hereunder. Such new Note or Notes shall be in the
form of the Note or Notes replaced thereby.
(f) For the avoidance of doubt, the parties to this
Agreement acknowledge that the provisions of this Section concerning
assignments of Loans and Notes relate only to absolute assignments and that
such provisions do not prohibit assignments creating security interests,
including, without limitation, any pledge or assignment by a Lender of any
Loan or Note to any Federal Reserve Bank in accordance with applicable law.
10.7 Adjustments; Set-off. (a) Except to the extent that
this Agreement provides for payments to be allocated to a particular Lender or
to the Lenders under a particular Facility, if any Lender (a "Benefited
Lender") shall at any time receive any payment of all or part of the
Obligations owing to it, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 8(f), or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any,
in respect of such other Lender's Obligations, such Benefited Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Obligations, or shall provide such other
Lenders with the benefits of any such collateral, as shall be necessary to
cause such Benefited Lender to share the excess payment or benefits of such
collateral ratably with each of the Lenders; provided, however, that if all or
any portion of such excess payment or benefits is thereafter recovered from
such Benefited Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of an Event of
Default each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise), to set off and appropriate and apply against such amount any and
all deposits (general or special, time or demand, provisional or final), in
any currency, and any other credits, indebtedness or claims, in any currency,
in each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender
agrees to notify promptly the Borrower and the Administrative Agent after any
such setoff and application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such setoff and application.
10.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. Delivery of an executed signature page of this
Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
10.9 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
10.10 Integration. Other than the promises, undertakings,
representations or warranties set forth in the Administrative Agent Fee Letter
and the Facility Fee Letter, this Agreement and the other Loan Documents
represent the agreement of the Borrower, the Agents, the Arrangers, the
Managers and the Lenders with respect to the subject matter hereof, and there
are no promises, undertakings, representations or warranties by any Arranger,
any Manager, any Agent or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF OTHER THAN SECTIONS 5-1401
AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
10.12 Submission To Jurisdiction; Waivers. The Borrower
hereby irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action
or proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State
of New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(b) to the extent permitted by applicable law, consents that
any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in
an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid,
to the Borrower at its address set forth in Section 10.2 or at such other
address of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section 10.12 any special, punitive or consequential
damages.
10.13 Certain Matters Affecting Lenders. (a) If (i) the
Nevada Gaming Authorities shall determine that any Lender does not meet
suitability standards prescribed under the Nevada Gaming Laws or (ii) any
other gaming authority with jurisdiction over the gaming business of the
Borrower shall determine that any Lender does not meet its suitability
standards (in any such case, a "Former Lender"), the Administrative Agent
shall have the right (but not the duty) to designate bank(s) or other
financial institution(s) (in each case, a "Substitute Lender") that agree to
become a Substitute Lender and to assume the rights and obligations of the
Former Lender, subject to receipt by the Administrative Agent of evidence that
such Substitute Lender (if not a Lender or Lenders or Affiliated Fund of a
Lender) is an Eligible Assignee. The Substitute Lender shall assume the rights
and obligations of the Former Lender under this Agreement. The Borrower shall
bear the reasonable costs and expenses of any Lender required by the Nevada
Gaming Authorities, or any other gaming authority with jurisdiction over the
gaming business of the Borrower, to file an application for a finding of
suitability in connection with the investigation of an application by the
Borrower for a license to operate a gaming establishment. In the event a
Former Lender is replaced by a Substitute Lender in accordance with this
Section 10.13(a), the Borrower and the Substitute Lender shall pay to the
Former Lender (or the Administrative Agent pursuant to Section 10.6) all
amounts that would have been required to be paid pursuant to Section 2.25 had
such Former Lender been replaced in accordance with such provisions.
(b) Notwithstanding the provisions of subsection (a) of this
Section 10.13, if any Lender becomes a Former Lender, and if the
Administrative Agent fails to find a Substitute Lender pursuant to subsection
(a) of this Section 10.13 within any time period specified by the appropriate
gaming authority for the withdrawal of a Former Lender (the "Withdrawal
Period"), the Borrower shall immediately prepay in full the outstanding amount
of all Revolving Extensions of Credit and Term Loans Extensions of Credit of
such Former Lender, together with accrued interest thereon to the earlier of
(x) the date of payment or (y) the last day of the applicable Withdrawal
Period and any other amounts that would have been required to be paid to such
Former Lender pursuant to Section 2.25 had such Former Lender been replaced in
accordance with such provisions.
(c) Upon the prepayment of all amounts owing to any Lender
in accordance with this Section 10.13, such replaced Lender shall no longer
constitute a "Lender" for purposes hereof; provided, any rights of such Lender
to indemnification hereunder shall survive as to such Lender.
10.14 Acknowledgments. The Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither any Arranger, any Agent, any Manager nor any
Lender has any fiduciary relationship with or duty to the Borrower, the
Completion Guarantor or any other Loan Party arising out of or in connection
with this Agreement or any of the other Loan Documents, and the relationship
between the Arrangers, the Agents, the Managers and the Lenders, on one hand,
and the Borrower, the Completion Guarantor any other Loan Party, on the other
hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Arrangers, the Agents, the Managers and the Lenders or among
the Borrower, the Completion Guarantor, the other Loan Parties and the
Lenders.
10.15 Confidentiality. Subject to Section 10.21, each of the
Arrangers, the Agents, the Managers and the Lenders agrees to keep
confidential all non-public information provided to it by any Loan Party
pursuant to this Agreement; provided, that nothing herein shall prevent any
Arranger, any Agent, any Manager or any Lender from disclosing any such
information (a) to any Arranger, any Agent, any Manager, any other Lender or
any affiliate of any thereof, (b) to any Participant or Assignee (each, a
"Transferee") or prospective Transferee that agrees to comply with the
provisions of this Section 10.15, (c) to any of its or its Affiliates'
employees, directors, agents, auditors, regulators, attorneys, accountants and
other professional advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
information and instructed to keep such information confidential in accordance
with this Section 10.15), (d) to any financial institution that is a direct or
indirect contractual counterparty in swap agreements or such contractual
counterparty's professional advisor (so long as such contractual counterparty
or professional advisor to such contractual counterparty agrees to be bound by
the provisions of this Section 10.15), (e) upon the request or demand of any
Governmental Authority having jurisdiction over it, (f) in response to any
order of any court or other Governmental Authority or as may otherwise be
required pursuant to any Requirement of Law, (g) if required to do so in
connection with any litigation or similar proceeding, (h) that has been
publicly disclosed other than in breach of this Section 10.15, (i) to the
National Association of Insurance Commissioners or any similar organization or
any nationally recognized rating agency that requires access to information
about a Lender's investment portfolio in connection with ratings issued with
respect to such Lender or (j) in connection with the exercise of any remedy
hereunder or under any other Loan Document. In the event any confidential or
non-public information is disclosed pursuant to clauses (e), (f) or (g) above,
the applicable Arranger, Agent, Manager or Lender, as the case may be, shall
give the Borrower notice thereof.
10.16 Release of Collateral and Guarantee Obligations.
Notwithstanding anything to the contrary contained herein or in any other Loan
Document, upon request of the Borrower in connection with any Disposition of
Property permitted by the Loan Documents, the Administrative Agent shall (or
shall direct the Collateral Agent or other applicable Person to, in either
case, without notice to or vote or consent of any Lender, or any affiliate of
any Lender that is a party to any Specified Hedge Agreement) take such actions
as shall be required to release its security interest in any Collateral being
Disposed of in such Disposition, and to release any guarantee obligations of
any Person being Disposed of in such Disposition, to the extent necessary to
permit consummation of such Disposition in accordance with the Loan Documents
provided that the Borrower and, if applicable, the appropriate Loan Party
shall have delivered to the Administrative Agent, at least five Business Days
prior to the date of the proposed release (or such shorter period as agreed to
by the Administrative Agent), a written request for release identifying the
relevant Collateral being Disposed of in such Disposition and the terms of
such Disposition in reasonable detail, including the date thereof, the price
thereof and any expenses in connection therewith, together with a
certification by the Borrower and, if applicable, the appropriate Loan Party
stating that such transaction is in compliance with this Agreement and the
other Loan Documents and that the proceeds of such Disposition will be applied
in accordance with this Agreement and the other Loan Documents. At such time
as the Loans, the Reimbursement Obligations and the other Obligations (other
than obligations under or in respect of Hedging Agreements) shall have been
paid in full in cash, the Commitments have terminated and no Letters of Credit
shall be outstanding which have not been cash collateralized to the
satisfaction of the Issuing Lender, the Collateral shall be automatically
released from the Liens created by the Security Documents for the benefit of
the Secured Parties and the obligations (other than those expressly stated to
survive such termination) of the Administrative Agent, the Collateral Agent
and each Loan Party under the Security Documents, in each case incurred in
connection with the Obligations hereunder, shall automatically terminate, all
without delivery of any instrument or performance of any act by any Person.
10.17 Accounting Terms and Changes. Financial statements and
other information required to be delivered by the Borrower pursuant to Section
6.1 shall be prepared in accordance with GAAP as in effect at the time of such
preparation; provided that calculations in connection with the definitions,
covenants and other provisions of this Agreement shall continue to be
calculated and determined on the basis of such principles in effect on the
date hereof and consistent with those used in the preparation of the most
recent audited financial statements delivered pursuant to Section 4.1, unless
otherwise modified pursuant to this Section 10.17 In the event that any
"Accounting Change" (as defined below) shall occur and such change results in
a change in the method of calculation of definitions, covenants and other
provisions of this Agreement, then the Borrower and the Administrative Agent
agree to enter into negotiations in order to amend such provisions of this
Agreement so as to equitably reflect such Accounting Changes with the desired
result that the criteria for evaluating the Borrower's and the other Loan
Parties' financial condition (including the requirements and restrictions
associated with the provisions of this Agreement applicable thereto) shall be
the same after such Accounting Changes as if such Accounting Changes had not
been made. Until such time as such an amendment shall have been executed and
delivered by the Borrower, the Administrative Agent and the Required Lenders,
all definitions, covenants and other provisions of this Agreement shall
continue to be calculated or construed as if such Accounting Changes had not
occurred. "Accounting Changes" refers to changes in accounting principles
required or permitted by the promulgation of any rule, regulation,
pronouncement or opinion by the Financial Accounting Standards Board of the
American Institute of Certified Public Accountants or, if applicable, the SEC.
10.18 Delivery of Lender Addenda. Each initial Lender shall
become a party to this Agreement by delivering to the Administrative Agent a
Lender Addendum duly executed by such Lender, the Borrower and the
Administrative Agent.
10.19 Construction. Each covenant contained herein shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to
action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
10.20 WAIVERS OF JURY TRIAL. THE BORROWER, THE ARRANGERS,
THE AGENTS, THE MANAGERS AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.21 Gaming Authorities. The Arrangers, the Agents, the
Managers and each Lender agree to cooperate with the Nevada Gaming Authorities
in connection with the administration of their regulatory jurisdiction over
Wynn Resorts, the Borrower and the other Loan Parties, including, without
limitation, to the extent not inconsistent with the internal policies of such
Lender, Arranger, Agent or Manager and any applicable legal or regulatory
restrictions, the provision of such documents or other information as may be
requested by any such Nevada Gaming Authorities relating to the Arrangers, the
Agents, the Managers, any of the Lenders, Wynn Resorts or the Borrower or any
other Loan Party, or the Loan Documents. Notwithstanding any other provision
of this Agreement, the Borrower expressly authorizes, and will cause each
other Loan Party to authorize, each Agent, Manager, Arranger and Lender to
cooperate with the Nevada Gaming Authorities as described above.
10.22 Release of Golf Course Collateral. Upon the request of
the Borrower made at such time as the conditions set forth in clauses (i)
through (iv) of the proviso contained in clause (k) of Section 7.5 are
satisfied and so long as not prohibited by the Financing Agreements, the
Administrative Agent shall (or shall direct the Collateral Agent or other
applicable Person to, in either case, without notice to or vote or consent of
any Lender, or any affiliate of any Lender that is a party to any Specified
Hedge Agreement) take such actions as shall be required to release its
security interest in any Golf Course Collateral, and to release any guarantee
obligations of Wynn Golf. In connection therewith, the Administrative Agent
shall (or shall direct the Collateral Agent or other applicable Person to)
execute and deliver to the applicable Loan Parties such documents and
instruments, including UCC-3 termination statements, deeds of reconveyance and
certificates of Capital Stock, all as may be reasonably requested by the Loan
Parties to release the Liens granted for the benefit of the Secured Parties in
the Golf Course Collateral and to effectuate the release of Wynn Golf's
guarantee of the Obligations. After the consummation of the actions set forth
in this Section 10.22, Wynn Golf shall no longer be deemed a "Loan Party" for
purposes of this Agreement or the other Loan Documents. As soon as is
reasonably practicable after the release of the Golf Course Collateral in
accordance with this Section 10.22, the Borrower shall (or shall cause the
applicable Loan Parties to) Dispose of the Golf Course Collateral and/or
distribute the Capital Stock of Wynn Golf to any Person other than Wynn
Resorts Holdings or any other Loan Party (unless, in the case of Wynn Resorts
Holdings or another Loan Party, such Person is acting as an intermediary for
purposes of distributing the Capital Stock of Wynn Golf as otherwise so
required).
10.23 Release of Aircraft Related Security. In the event any
agreement, document or other instrument related to Indebtedness permitted by
Section 7.2(c) requires that any Lien attach to the Capital Stock of the Loan
Party that either directly owns the Aircraft or owns the beneficial interest
in any trust that owns the Aircraft, in either case to the extent permitted
pursuant to Section 7.3(j), upon the request of the Borrower and so long as
not prohibited by the Financing Agreements, the Administrative Agent shall (or
shall direct the Collateral Agent or other applicable Person to, in either
case, without notice to or vote or consent of any Lender, or any affiliate of
any Lender that is a party to any Specified Hedge Agreement) take such actions
as shall be required to release its security interest in the Capital Stock of
such Loan Party and all other Property of the Loan Party and to release any
guarantee obligations of such Loan Party. In connection therewith, the
Administrative Agent shall (or shall direct the Collateral Agent or other
applicable Person to) execute and deliver to the applicable Loan Party such
documents and instruments, including UCC-3 termination statements and
certificates of Capital Stock, all as may be reasonably requested by such Loan
Party to release the Liens granted for the benefit of the Secured Parties in
the in the Capital Stock of such Loan Party and all other Property of such
Loan Party and to effectuate the release of such Loan Party's guarantee of the
Obligations.
10.24 Third Party Beneficiaries. Subject to the following
sentence, this Agreement is entered into for the benefit of the parties hereto
only and no other party shall be entitled to enforce any provision hereof or
otherwise be a third party beneficiary hereunder. Notwithstanding the
foregoing, the Collateral Agent, the Disbursement Agent and the Securities
Intermediary shall be deemed third party beneficiaries under Section 9 and
10.5 only and shall be entitled to enforce such provisions to the extent
applicable to such Persons.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
WYNN LAS VEGAS, LLC,
a Nevada limited liability company,
as the Borrower
By: Wynn Resorts Holdings, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts Limited,
a Nevada corporation,
its sole member
By: /s/ Ronald J. Kramer
-----------------------
Name: Ronald J. Kramer
Title: President
DEUTSCHE BANK SECURITIES, INC.,
as Lead Arranger and Joint Book Running
Manager
By: /s/ Alexander B.V. Johnson
-----------------------------------
Name: Alexander B.V. Johnson
Title: Managing Director
By: /s/ Brenda Casey
-----------------------------------
Name: Brenda Casey
Title: Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent, Issuing Lender
and Swing Line Lender
By: /s/ Alexander B.V. Johnson
-----------------------------------
Name: Alexander B.V. Johnson
Title: Managing Director
By: /s/ Brenda Casey
-----------------------------------
Name: Brenda Casey
Title: Vice President
BANC OF AMERICA SECURITIES LLC,
as Lead Arranger and Joint Book Running
Manager
By: /s/ Scott L. Faber
-----------------------------------
Name: Scott L. Faber
Title: Managing Director
BANK OF AMERICA, N.A.,
as Syndication Agent
By: /s/ Jeff Susman
-----------------------------------
Name: Jeff Susman
Title: Senior Vice President
BEAR, STEARNS & Co. Inc.,
as Arranger and Joint Book Running Manager
By: /s/ Keith Barnish
-----------------------------------
Name: Keith Barnish
Title: Senior Managing Director
BEAR STEARNS CORPORATE LENDING INC.,
as Joint Documentation Agent
By: /s/ Keith Barnish
-----------------------------------
Name: Keith Barnish
Title: Senior Managing Director
J.P. MORGAN SECURITIES INC.,
as Arranger and Joint Book Running Manager
By: /s/ Eric Tanjeloff
-----------------------------------
Name: Eric Tanjeloff
Title: Vice President
JPMORGAN CHASE BANK, N.A.,
as Joint Documentation Agent
By: /s/ Donald S. Shokrian
-----------------------------------
Name: Donald S. Shokrian
Title: Managing Director
SG AMERICAS SECURITIES, LLC
as Arranger and Joint Book Running Manager
By: /s/ Michael S. Kim
-----------------------------------
Name: Michael S. Kim
Title: Managing Director
SOCIETE GENERALE,
as Joint Documentation Agent
By: /s/ Thomas K. Day
-----------------------------------
Name: Thomas K. Day
Title: Managing Director
S-7.3(f)
SD\460828.17