Common use of Limitation on Capital Expenditures Clause in Contracts

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 (i) 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 and (ii) 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 2006 $ 100,000,000 Fiscal Year 2007 $ 125,000,000 Fiscal Year 2008 $ 160,000,000 Fiscal Year 2009 and each Fiscal Year thereafter $ 175,000,000 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 (as increased pursuant to clause (a) above) is not expended in the Fiscal Year for which it is permitted, 100% 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 any Fiscal Year applied first against the Carryover Amount (if any) and second against amounts set forth above in respect of such Fiscal Year).

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 (i) 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 and (ii) 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 2006 $ $100,000,000 Fiscal Year 2007 $ $125,000,000 Fiscal Year 2008 $ $160,000,000 Fiscal Year 2009 and each Fiscal Year thereafter $ $175,000,000 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 (as increased pursuant to clause (a) above) is not expended in the Fiscal Year for which it is permitted, 100% 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 any Fiscal Year applied first against the Carryover Amount (if any) and second against amounts set forth above in respect of such Fiscal Year).

Limitation on Capital Expenditures. Make or incur commit to make any Capital Expenditure in any Fiscal Year, except: (a) Capital Expenditures of Borrower or Restricted Subsidiaries of Borrower in the ordinary course of business not exceeding an amount equal to Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the prior Fiscal Year multiplied by 0.35; provided that, (w) such amount shall be increased with respect to any Restricted Subsidiary acquired, or any assets acquired in a Permitted Acquisition, in each case in the then current Fiscal Year, by an amount equal to (i) Consolidated EBITDA of such acquired Restricted Subsidiary (calculated by reference to such acquired Restricted Subsidiary and its Restricted Subsidiaries only) during the last fiscal year of such Restricted Subsidiary for which audited financial statements are available, or (ii) the Consolidated EBITDA that would have been attributable to such acquired assets during the prior fiscal year (as reasonably determined by Borrower and approved by Administrative Agent), in each case, multiplied by 0.35, multiplied by a fraction, the numerator of which is 365 minus the number of days that elapsed in the then current Fiscal Year of Borrower prior to such acquisition, and the denominator of which is 365, (x) the amount available for Capital Expenditures in any Fiscal Year indicated below pursuant to this clause (a) and unused in an aggregate amount among all Loan Parties in excess of the corresponding amount set forth below opposite such Fiscal Year; provided that (i) other than Capital Expenditures (x) necessary to keep all associated Property and systems reasonably related Year may be carried forward to the operation of immediately following Fiscal Year and may be used in such following Fiscal Year only (it being understood that unused amounts under the Golf Course Land and improvements thereon in good and working order and condition or Existing Credit Agreement with respect to Fiscal Year 2005 may be carried forward to Fiscal Year 2006), (y) funded by such carried forward amount will be used first in such following Fiscal Year, prior to using the proceeds amount otherwise available in such Fiscal Year pursuant to this clause (a), and (z) the maximum amount available of equity capital contributions from Wynn Resorts (or another Loan Party Capital Expenditures in any Fiscal Year that may be carried forward 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 and (ii) 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. immediately following Fiscal Year 2006 $ 100,000,000 Fiscal Year 2007 $ 125,000,000 Fiscal Year 2008 $ 160,000,000 Fiscal Year 2009 and each Fiscal Year thereafter $ 175,000,000 Notwithstanding the foregoing, (a) the amounts referred to above shall be increased from time to time by not exceed 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 available for Capital Expenditures (other than the Additional Entertainment Facility and/or the Retail Facility) during the relevant in such first Fiscal Year (without taking into account any amount carried over from the previous Fiscal Year); and (b) if Capital Expenditures of Borrower and its Restricted Subsidiaries to the extent of any amount referred Net Cash Proceeds received by Borrower as a capital contribution or from issuances or sales to above Holdings of Capital Stock of Borrower, in each case after the Fourth Restated Credit Agreement Closing Date, to the extent that (as increased x) such Net Cash Proceeds are not required to be applied to repay Loans pursuant to clause Sections 2.14(b) and 2.15, and (ay) aboveBorrower could make a Restricted Payment of the same amount pursuant to Section 6.6(e) is not expended in the Fiscal Year for which (it is permitted, 100% of being understood that any such nonCapital Expenditures shall, without duplication, reduce dollar-expended amounts (for-dollar the “Carryover Amount”amount available for Restricted Payments under Section 6.6(e)). Permitted Acquisitions made in accordance with Section 6.8(f) may shall not be carried over deemed to be Capital Expenditures for expenditure in the next succeeding Fiscal Year (with amounts expended in any Fiscal Year applied first against the Carryover Amount (if any) and second against amounts set forth above in respect purposes of such Fiscal Year)this Section 6.7.

Limitation on Capital Expenditures. Make or incur commit to make (by way of the acquisition of securities of a Person or otherwise) any expenditure in respect of the purchase or other acquisition of fixed or capital assets (excluding any such asset acquired in connection with normal replacement and maintenance programs properly charged to current operations) except for (a) Reinvestments of Net Proceeds from Asset Sales or Insurance Proceeds to the extent permitted under Section 4.8 hereof, and (b) Capital Expenditures the amount of which (excluding Capital Expenditures to the extent (i) reimbursed by a customer during the same period or (ii) financed by third party financing permitted under the terms of this Agreement) (x) in the Fiscal Year ending December 31, 2014 shall not exceed $45,000,000 and (y) in the Fiscal Year ending December 31, 2015 and any Fiscal Year thereafter shall not exceed $10,000,000; provided that if the Credit Parties do not utilize the entire amount of Capital Expenditures permitted in any Fiscal Year, the Credit Parties may carry forward such unutilized amount to the immediately succeeding Fiscal Year indicated below in only (and Capital Expenditures shall be deemed to utilize the current Fiscal Year’s allowance before being applied to any carryover allowance).” 5. Borrower hereby certifies that Wireless Artist LLC, a Michigan limited liability company and wholly-owned subsidiary of WirelessDeveloper, constitutes an aggregate amount among all Loan Parties in excess Immaterial Subsidiary for purposes of the corresponding amount set forth below opposite such Fiscal Year; provided that Credit Agreement and the other Loan Documents. 6. This Second Amendment shall be effective (i) other than Capital Expenditures (x) necessary to keep all associated Property and systems reasonably related according to the operation terms hereof) as of September 30, 2014 on the Golf Course Land date that the following conditions have been satisfied (the “Second Amendment Effective Date”): (a) Agent shall have received executed facsimile or email counterparts of this Second Amendment in each case duly executed and improvements thereon delivered by Agent, the Lenders and Borrower, with originals following promptly thereafter; and (b) Borrower shall have paid to Agent all fees, costs and expenses, if any, owed to Agent and Lenders and accrued to the Second Amendment Effective Date, in good each case, as 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)required to be paid in accordance with the Loan Documents. 7. Borrower hereby represents and warrants that, in no event shall after giving effect to 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 amendments and (B) $5,000,000 in any 12 month period thereafter and (ii) 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 2006 $ 100,000,000 Fiscal Year 2007 $ 125,000,000 Fiscal Year 2008 $ 160,000,000 Fiscal Year 2009 and each Fiscal Year thereafter $ 175,000,000 Notwithstanding the foregoingconsents contained herein, (a) execution and delivery of this Second Amendment and the amounts referred performance by Borrower of its obligations under the Credit Agreement as amended hereby (herein, as so amended, the “Amended Credit Agreement”) are within its corporate powers, have been duly authorized, are not in contravention of law applicable to above Borrower or the terms of its articles of incorporation or bylaws or articles of organization or operating agreement, and do not require the consent or approval of any governmental body, agency or authority, and the Amended Credit Agreement will constitute the valid and binding obligations of Borrower, enforceable in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance, ERISA or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (whether enforcement is sought in a proceeding in equity or at law), (b) the representations and warranties set forth in Section 6 of the Amended Credit Agreement are true and correct in all material respects (except that such materiality qualifier shall not be increased from time applicable to time by the amount of cash proceeds received by the Loan Parties as equity capital contributions from Wynn Resorts (any representation or another Affiliate warranty to the extent acting that it is already qualified or modified by materiality in the text thereof) on and as an intermediary for purposes of contributing equity capital contributions from Wynn Resorts to a Loan Party for application to Capital Expenditures) but only the Second Amendment Effective Date (except 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 representations specifically relate to an earlier date), and (bc) if on and as of the Second Amendment Effective Date, after giving effect to this Second Amendment, no Default or Event of Default shall have occurred and be continuing. 8. Except as specifically set forth herein, this Second Amendment shall not be deemed to amend or alter in any amount referred respect the terms and conditions of the Credit Agreement (including without limitation all conditions and requirements for Advances and any financial covenants), any of the Notes issued thereunder or any of the other Loan Documents. Nor shall this Second Amendment constitute a waiver or release by Agent or the Lenders of any right, remedy, Default or Event of Default under or a consent to above (as increased pursuant any transaction not meeting the terms and conditions of the Credit Agreement, any of the Notes issued thereunder or any of the other Loan Documents. Furthermore, this Second Amendment shall not affect in any manner whatsoever any rights or remedies of the Lenders or Agent with respect to clause (a) above) is not expended any other non-compliance by Borrower or any Guarantor with the Credit Agreement or the other Loan Documents, whether in the Fiscal Year nature of a Default or Event of Default, and whether now in existence or subsequently arising, and shall not apply to any other transaction. Borrower hereby confirms that each of the Collateral Documents continues in full force and effect and secures, among other things, all of its obligations, liabilities and indebtedness owing to Agent and the Lenders under the Credit Agreement and the other Loan Documents (where applicable, as amended herein). 9. Borrower hereby reaffirms, confirms, ratifies and agrees to be bound by its covenants, agreements and obligations under the Amended Credit Agreement and each other Loan Document previously executed and delivered by it, or executed and delivered in accordance with this Second Amendment. Each reference in the Credit Agreement to “this Agreement” or “the Credit Agreement” shall be deemed to refer to the Credit Agreement as amended by this Second Amendment. 10. Borrower hereby acknowledges and agrees that this Second Amendment and the amendments and consents contained herein do not constitute any course of dealing or other basis for which it is permittedaltering any obligation of Borrower, 100% any other Credit Party or any Guarantor or any rights, privilege or remedy of the Lenders under the Credit Agreement or any such non-expended amounts (other Loan Document. 11. Unless otherwise defined to the “Carryover Amount”) contrary herein, all capitalized terms used in this Second Amendment shall have the meanings set forth in the Credit Agreement. 12. This Second Amendment may be carried over for expenditure executed in counterpart, in accordance with Section 13.9 of the next succeeding Fiscal Year Credit Agreement. 13. This Second Amendment shall be construed in accordance with and governed by the laws of the State of California (with amounts expended in any Fiscal Year applied first against the Carryover Amount (if any) and second against amounts set forth above in respect without giving effect to conflict of such Fiscal Yearlaws principles).

Limitation on Capital Expenditures. Make Make, commit to make or incur Capital Expenditures Expenditures, in any Fiscal Year indicated below below, in an aggregate amount among all Loan Parties in excess of the corresponding amount set forth below opposite such Fiscal Year; provided provided, that (i) 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 and the Phase II 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 Completion Date through the 18 month anniversary thereof and (B) $5,000,000 in any 12 month period thereafter thereafter, and (ii) in no event shall any Loan Party commit to make or incur Capital Expenses with respect to the Phase II Land or improvements thereon in excess of $5,000,000 in any Fiscal Year; provided, further, that 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, in each case 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 2005 $ 25,000,000 Fiscal Year 2006 $ 100,000,000 50,000,000 Fiscal Year 2007 $ 125,000,000 60,000,000 Fiscal Year 2008 $ 160,000,000 65,000,000 Fiscal Year 2009 and each Fiscal Year thereafter $ 175,000,000 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 (as increased pursuant to clause (a) above) is not expended in the Fiscal Year for which it is permitted, 100% 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 any Fiscal Year applied first against the Carryover Amount (if any) and second against amounts set forth above in respect of such Fiscal Year).52,500,000

Limitation on Capital Expenditures. (a) Make or incur commit to make any Capital Expenditures Expenditure except for expenditures in the ordinary course of business not exceeding, in the aggregate for US Borrower and its Subsidiaries during any Fiscal Year indicated below in an aggregate amount among all Loan Parties in excess of the corresponding fiscal years of US Borrower set forth below the amount set forth below opposite such fiscal year below: Fiscal YearYear Amount ----------- ------ 2000 $ 150,000,000 2001 $ 130,000,000 2002 $ 130,000,000 2003 $ 130,000,000 2004 $ 130,000,000 2005 $ 130,000,000 2006 $ 130,000,000 ; provided that (i) other than 100% of any amount not used in any fiscal year may be carried forward only into the next succeeding fiscal year and (ii) each of the respective amounts in the foregoing table for any fiscal year occurring from or after any Permitted Acquisition shall be increased by an amount equal to 110% of the Capital Expenditures for the four fiscal quarters ended immediately prior to such Permitted Acquisition of the business acquired in such Permitted Acquisition. (b) In addition to the Capital Expenditures permitted pursuant to paragraph (a) of this subsection 13.8, to the extent such proceeds are not otherwise utilized pursuant to the penultimate paragraph of subsection 13.9, US Borrower and its Subsidiaries may make additional Capital Expenditures (which shall not be counted in the limitations set forth in paragraph (a) of this subsection 13.8) consisting of the investment of (i) Excess Cash Flow generated during prior fiscal years (in each case including the retained portion of Excess Cash Flow for only those periods where the respective Excess Cash Flow payment has theretofore occurred) and not required to be applied to prepay the Term Loans or cash collateralize the Chips Letter of Credit pursuant to subsection 7.3(c), (ii) the net cash proceeds of any Capital Stock issuance by Holdings after the date hereof and (iii) the Net Cash Proceeds not required to be applied to prepay the Term Loans or cash collateralize the Chips Letter of Credit pursuant to subsection 7.3, including (x) necessary to keep all associated Property and systems reasonably related with respect to the operation investment of proceeds of the Golf Course Land insurance and improvements thereon in good condemnation proceeds not required to prepay the Term Loans pursuant to subsection 7.3(f) and working order and condition or (y) funded by with respect to the investment of proceeds of equity capital contributions from Wynn Resorts the sale of assets which are permitted pursuant to subsection 13.6 (or another Loan Party to c) Notwithstanding the extent acting as an intermediary for purposes of contributing equity capital contributions from Wynn Resorts for such Capital Expenditures)foregoing, 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 and (ii) 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 be made 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 2006 $ 100,000,000 Fiscal Year 2007 $ 125,000,000 Fiscal Year 2008 $ 160,000,000 Fiscal Year 2009 and each Fiscal Year thereafter $ 175,000,000 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 Holdings (other than the Additional Entertainment Facility and/or the Retail Facility) during the relevant Fiscal Year and (b) if any amount referred to above (as increased pursuant to clause (a) above) is not expended in the Fiscal Year for which it is permitted, 100% of any such non-expended amounts (the “Carryover Amount”) may be carried over for expenditure in the next succeeding Fiscal Year (connection with amounts expended in any Fiscal Year applied first against the Carryover Amount (if any) and second against amounts set forth above in respect of such Fiscal Yearan Investment permitted under subsection 13.9).

Limitation on Capital Expenditures. Make or (a) The Company will not, and will cause its Restricted Subsidiaries not to, incur Capital Expenditures in any Fiscal Year indicated below fiscal year in excess of (i) $10.0 million plus (ii) 50% of the amount by which the Company’s Consolidated Cash Flow for the immediately preceding fiscal year exceeds $40.0 million (collectively, the “Allowable Capital Expenditures”), plus (iii) the Carryover Amount applicable to such fiscal year, plus (iv) any unused amount permitted to be used for Investments pursuant to clause (15) of the definition of “Permitted Investments” plus (v) aggregate net cash proceeds actually received by the Company as a contribution to its common equity capital for that purpose and actually used by the Company to make such Capital Expenditures. The “Carryover Amount” in respect of any fiscal year shall be the Allowable Capital Expenditures of the immediately preceding fiscal year minus all Capital Expenditures for such preceding fiscal year, provided that in no event shall the Carryover Amount exceed $5.0 million. The Company and its Restricted Subsidiaries may also use up to 50% of the net proceeds of a Qualified IPO to incur Capital Expenditures (the “IPO Proceeds Capital Expenditures”). A “Qualified IPO” is an aggregate amount among all Loan Parties initial public offering of the common stock of the Company or any of its direct or indirect Subsidiaries with gross proceeds of at least $50.0 million. (b) Notwithstanding anything to the contrary above, incurrence by the Company or any of its Restricted Subsidiaries of Capital Expenditures in excess of the corresponding amount amounts set forth below opposite such Fiscal Year; provided that in the previous paragraph (ia “Capital Expenditure Event”) other than Capital Expenditures (x) necessary to keep all associated Property and systems reasonably related to the operation shall only constitute a Default or breach 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 and (ii) 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 2006 $ 100,000,000 Fiscal Year 2007 $ 125,000,000 Fiscal Year 2008 $ 160,000,000 Fiscal Year 2009 and each Fiscal Year thereafter $ 175,000,000 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 this Indenture to the extent such additional Capital Expenditures exceed $5.0 million and has not otherwise been funded by the aggregate net cash proceeds actually received by the Company as a contribution to its common equity capital contribution proceeds are contributed and so applied designated for the purpose of the Company making such Capital Expenditures (other Expenditure no later than 30 days after the Company has made such Capital Expenditure. Upon the occurrence of a Capital Expenditure Event, the interest on the Notes will accrue at a rate that is 1.0% higher than the Additional Entertainment Facility and/or then applicable interest rate on the Retail FacilityNotes from July 1 of such fiscal year through but including June 30 of the following fiscal year. (c) during The Company’s annual compliance certificate delivered to the relevant Fiscal Year and Trustee under this Indenture shall specify (bi) if any amount referred to above (as increased pursuant to clause (a) above) is not expended in the Fiscal Year for which it is permitted, 100% 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 any Fiscal Year applied first against the Carryover Amount applicable to the then current fiscal year, (if anyii) the Allowable Capital Expenditures and second against amounts set forth above IPO Proceeds Capital Expenditures applicable to the then current fiscal year, (iii) the amount of Capital Expenditures for the fiscal year addressed by such certificate and (iv) whether the additional interest on the Notes provided for in respect of such Fiscal Year)the previous paragraph will be applicable for the upcoming twelve month period.

Limitation on Capital Expenditures. Make Make, commit to make or incur Capital Expenditures Expenditures, in any Fiscal Year indicated below below, in an aggregate amount among all Loan Parties in excess of the corresponding amount set forth below opposite such Fiscal Year; provided provided, that (i) 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 and the Phase II 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 Completion Date through the 18 month anniversary thereof and (B) $5,000,000 in any 12 month period thereafter thereafter, and (ii) in no event shall any Loan Party commit to make or incur Capital Expenditures with respect to the Phase II Land or improvements thereon in excess of $5,000,000 in any Fiscal Year; provided, further, that 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 2005 $ 25,000,000 Fiscal Year 2006 $ 100,000,000 50,000,000 Fiscal Year 2007 $ 125,000,000 60,000,000 Fiscal Year 2008 $ 160,000,000 65,000,000 Fiscal Year 2009 and each Fiscal Year thereafter $ 175,000,000 Notwithstanding 52,500,000 7.8 Limitation on Investments. Make any advance, 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, or any assets constituting an ongoing business from, or make any other investment in, any other Person (all of the foregoing, "Investments"), except: (a) extensions of trade credit in the amounts referred ordinary course of business (including, without limitation, advances to above patrons of the Project's casino operation consistent with ordinary course gaming operations); (b) (i) prior to the Completion Date, Investments in Permitted Securities and (ii) on or after the Completion Date, Investments in Cash Equivalents; (c) to the extent constituting Investments, the incurrence of Indebtedness permitted by Sections 7.2(b), 7.2 (c) and 7.2(d); (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 $1,000,000 at any one time outstanding; (e) Investments (other than those relating to the incurrence of Indebtedness permitted by Section 7.8(c)) (i) by any Loan Party (other than Desert Inn Improvement) in the Borrower or any Solvent Subsidiary of the Borrower (other than Capital Corp. or the Completion Guarantor (except with respect to Investments, the proceeds of which are necessary for the corporate maintenance of Capital Corp.), (ii) by Valvino in Xxxx Resorts Holdings or by Xxxx Resorts Holdings in Valvino (so long as Xxxx Resorts Holdings, on the one hand, or Valvino, on the other hand, is Solvent) and (iii) by any Wynn Group Entity in any other Solvent Loan Party other than Desert Inn Improvement, Capital Corp. or the Completion Guarantor; (f) Investments consisting of securities received in settlement of debt created in the ordinary course of business and owing to any Loan Party or in satisfaction of judgments; (g) nominal capital contributions in connection 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, (iii) any Loan Party may make Restricted Payments permitted pursuant to Section 7.8 and (iv) any Loan Party may take actions expressly permitted pursuant to Section 7.10; and (i) 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 increased from time to time by the amount of cash proceeds received continuing or would result therefrom and no Material Adverse Effect shall have occurred and be continuing or would result therefrom, Investments by the Loan Parties as equity capital contributions from Wynn Resorts in an aggregate amount (or another Affiliate valued at cost) not 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 exceed $10,000,000 at any amount referred to above (as increased pursuant to clause (a) above) is not expended in the Fiscal Year for which it is permitted, 100% 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 any Fiscal Year applied first against the Carryover Amount (if any) and second against amounts set forth above in respect of such Fiscal Year)one time outstanding.

Limitation on Capital Expenditures. Make or incur commit to make any Capital Expenditure in any Fiscal Year, except: (a) Capital Expenditures of Borrower or Restricted Subsidiaries of Borrower in the ordinary course of business not exceeding an amount equal to Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the prior Fiscal Year multiplied by 0.35; provided that, (w) such amount shall be increased with respect to any Restricted Subsidiary acquired, or any assets acquired in a Permitted Acquisition, in each case in the then current Fiscal Year, by an amount equal to (i) Consolidated EBITDA of such acquired Restricted Subsidiary (calculated by reference to such acquired Restricted Subsidiary and its Restricted Subsidiaries only) during the last fiscal year of such Restricted Subsidiary for which audited financial statements are available, or (ii) the Consolidated EBITDA that would have been attributable to such acquired assets during the prior fiscal year (as reasonably determined by Borrower and approved by Administrative Agent), in each case, multiplied by 0.35, multiplied by a fraction, the numerator of which is 365 minus the number of days that elapsed in the then current Fiscal Year of Borrower prior to such acquisition, and the denominator of which is 365, (x) the amount available for Capital Expenditures in any Fiscal Year indicated below pursuant to this clause (a) and unused in an aggregate amount among all Loan Parties in excess of the corresponding amount set forth below opposite such Fiscal Year; provided that (i) other than Capital Expenditures (x) necessary to keep all associated Property and systems reasonably related Year may be carried forward to the operation of immediately following Fiscal Year and may be used in such following Fiscal Year only (it being understood that unused amounts under the Golf Course Land and improvements thereon in good and working order and condition or Existing Credit Agreement with respect to Fiscal Year 2003 may be carried forward to Fiscal Year 2004), (y) funded by such carried forward amount will be used first in such following Fiscal Year, prior to using the proceeds amount otherwise available in such Fiscal Year pursuant to this clause (a), and (z) the maximum amount available of equity capital contributions from Wynn Resorts (or another Loan Party Capital Expenditures in any Fiscal Year that may be carried forward 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 and (ii) 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. immediately following Fiscal Year 2006 $ 100,000,000 Fiscal Year 2007 $ 125,000,000 Fiscal Year 2008 $ 160,000,000 Fiscal Year 2009 and each Fiscal Year thereafter $ 175,000,000 Notwithstanding the foregoing, (a) the amounts referred to above shall be increased from time to time by not exceed 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 available for Capital Expenditures (other than the Additional Entertainment Facility and/or the Retail Facility) during the relevant in such first Fiscal Year (without taking into account any amount carried over from the previous Fiscal Year); and (b) if Capital Expenditures of Borrower and its Restricted Subsidiaries to the extent of any amount referred Net Cash Proceeds received by Borrower as a capital contribution or from issuances or sales to above Holdings of Capital Stock of Borrower, in each case after the Closing Date, to the extent that (as increased x) such Net Cash Proceeds are not required to be applied to repay Loans pursuant to clause Sections 2.14(b) and 2.15, and (ay) aboveBorrower could make a Restricted Payment of the same amount pursuant to Section 6.6(e) is not expended in the Fiscal Year for which (it is permitted, 100% of being understood that any such nonCapital Expenditures shall, without duplication, reduce dollar-expended amounts (for-dollar the “Carryover Amount”amount available for Restricted Payments under Section 6.6(e)). Permitted Acquisitions made in accordance with Section 6.8(f) may shall not be carried over deemed to be Capital Expenditures for expenditure in the next succeeding Fiscal Year (with amounts expended in any Fiscal Year applied first against the Carryover Amount (if any) and second against amounts set forth above in respect purposes of such Fiscal Year)this Section 6.7.

Limitation on Capital Expenditures. Make (a) The Borrower Parties will not make or incur commit to make any Capital Expenditure in an amount greater than $10,000,000 in any fiscal year, if any Lender Party or the FRBNY shall have notified the applicable Borrower Party of its objection thereto following receipt of written notice not less than 10 Business Days prior to any such Capital Expenditure. (b) Notwithstanding the exclusion from the definition of Capital Expenditures of expenditures (including Capital Lease Obligations) in any Fiscal Year indicated below respect of aircraft and aircraft related equipment, the Borrower Parties will not make or commit to make an acquisition of an aircraft (other than pursuant to an exercise of rights or remedies under a secured loan, conditional sale or finance lease or transfer in lieu thereof or an aggregate amount among all Loan Parties in excess exercise of rights under a residual value guaranty, loss guaranty or similar arrangement) that as of the corresponding amount set forth below opposite Amendment Effective Date is not the subject of an existing contractual commitment to acquire such Fiscal Yearaircraft (each a “Proposed Aircraft Purchase”), if any Required Person shall have notified the applicable Borrower Party of its objection to such Proposed Aircraft Purchase within thirty (30) days following written notice from the applicable Borrower Party of such Proposed Aircraft Purchase, which notice shall be given by such Borrower Party not less than forty five (45) days prior to the commitment to make such acquisition (such written notice to include a summary description of the aircraft, the reason for acquiring the aircraft, the purchase price of the aircraft, the proposed lessee of the aircraft together with the rent and lease term in respect of any proposed lease of the aircraft, and the means by which the Parent Borrower proposes to finance the acquisition of the aircraft); provided that, notwithstanding the foregoing, no Required Person shall have the right to object to a Proposed Aircraft Purchase to the extent that (x) the purchase price of such Proposed Aircraft Purchase, together with the purchase price of any other Proposed Aircraft Purchase of any Borrower Party not consented to by the Required Persons pursuant to this clause that became subject to a contractual commitment entered into in the applicable fiscal year, does not exceed $100,000,000 in the aggregate in such applicable fiscal year and (y) the applicable Borrower Party has provided a written notice of such Proposed Aircraft Purchase consistent with this clause (b) and has consulted with the FRBNY with respect to such Proposed Aircraft Purchase during the thirty (30) day period referred to above. This clause (b) shall not apply to (i) other exchanges of “delivery slots” in respect of an aircraft to be purchased from a manufacturer unless the aggregate purchase price for the aircraft contractually committed to be purchased is increased by more 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 $25,000,000 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 and (ii) other than the incurrence of a 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 2006 $ 100,000,000 Fiscal Year 2007 $ 125,000,000 Fiscal Year 2008 $ 160,000,000 Fiscal Year 2009 and each Fiscal Year thereafter $ 175,000,000 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 (as increased pursuant to clause (a) above) is not expended in the Fiscal Year for which it is permitted, 100% 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 any Fiscal Year applied first against the Carryover Amount (if any) and second against amounts set forth above Lease Obligation in respect of an aircraft that is either the subject of an existing contractual commitment to purchase as of the Amendment Effective Date or already Owned at the time of such Fiscal Year)incurrence.

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 commit to make (by way of the corresponding amount set forth below opposite such Fiscal Year; provided that acquisition of securities of a Person or otherwise) any expenditure in respect of the purchase or other acquisition of fixed or capital assets (excluding (i) other than Capital Expenditures (x) necessary any such asset acquired in connection with normal replacement and maintenance programs properly charged 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 current operations or (y) funded by which are payable from the proceeds of equity capital contributions from Wynn Resorts (insurance received by the Parent, the Borrower 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)any Subsidiary, 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 and (ii) other than Capital Expenditures (x) necessary or advisable to keep all associated Property and systems reasonably related to the operation of the Aircraft any such asset acquired 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 connection with respect to the Aircraft. Fiscal Year 2006 $ 100,000,000 Fiscal Year 2007 $ 125,000,000 Fiscal Year 2008 $ 160,000,000 Fiscal Year 2009 and each Fiscal Year thereafter $ 175,000,000 Notwithstanding the foregoinga Permitted Acquisition, (aiii) any such asset constituting a tractor, trailer or related item of transportation equipment acquired for the amounts referred purpose of reselling the same to above shall be increased from time to time by an independent contractor doing business with 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) Borrower and its Subsidiaries but only to the extent that the purchase price of such equity capital contribution proceeds are contributed tractor, trailer or related item of equipment, when added to the aggregate purchase price of all such other tractors, trailers and so applied related items of equipment then owned by the Borrower and its Subsidiaries, does not exceed $5,000,000 and (iv) expenditures of up to $30,000,000 each with respect to the assets referred to in clauses (i) and (ii) to the proviso in Section 7.13, except for Capital Expenditures expenditures not exceeding, when added to the value of all assets (determined in accordance with GAAP) rented under leases (other than Financing Leases and Short Term Leases) for tractors, trailers and related equipment entered into during any fiscal year of the Additional Entertainment Facility and/or Parent, in the Retail Facility) aggregate for the Parent and its Subsidiaries during any such fiscal year, the relevant Fiscal Year and (b) if any amount referred to above (as increased of $60,000,000, provided, that, in the event that the amount permitted pursuant to clause this subsection for any fiscal year exceeds the actual amount of all capital expenditures for such fiscal year (a) above) is whether permitted by virtue of a carry-over pursuant to this proviso or otherwise), the amount of such excess up to an amount not expended in the Fiscal Year for which it is permitted, 100% of any such non-expended amounts (the “Carryover Amount”) to exceed $5,000,000 may be carried over for expenditure in that portion of the next succeeding Fiscal Year (fiscal year immediately following such fiscal year that follows delivery of the financial statements delivered pursuant to subsection 6.1(a) with amounts expended in any Fiscal Year applied first against the Carryover Amount (if any) and second against amounts set forth above in respect of to such Fiscal Year)fiscal year.

Limitation on Capital Expenditures. Make or incur commit to make any Capital Expenditure in any Fiscal Year, except: (a) Capital Expenditures of Borrower or Restricted Subsidiaries of Borrower in the ordinary course of business not exceeding an amount equal to Consolidated EBITDA of Borrower and its Restricted Subsidiaries for the prior Fiscal Year multiplied by 0.35; provided that, (w) such amount shall be increased with respect to any Restricted Subsidiary acquired, or any assets acquired in a Permitted Acquisition, in each case in the then current Fiscal Year, by an amount equal to (i) Consolidated EBITDA of such acquired Restricted Subsidiary (calculated by reference to such acquired Restricted Subsidiary and its Restricted Subsidiaries only) during the last fiscal year of such Restricted Subsidiary for which audited financial statements are available, or (ii) the Consolidated EBITDA that would have been attributable to such acquired assets during the prior fiscal year (as reasonably determined by Borrower and approved by Administrative Agent), in each case, multiplied by 0.35, multiplied by a fraction, the numerator of which is 365 minus the number of days that elapsed in the then current Fiscal Year of Borrower prior to such acquisition, and the denominator of which is 365, (x) the amount available for Capital Expenditures in any Fiscal Year indicated below pursuant to this clause (a) and unused in an aggregate amount among all Loan Parties in excess of the corresponding amount set forth below opposite such Fiscal Year; provided that (i) other than Capital Expenditures (x) necessary to keep all associated Property and systems reasonably related Year may be carried forward to the operation of immediately following Fiscal Year and may be used in such following Fiscal Year only (it being understood that unused amounts under the Golf Course Land and improvements thereon in good and working order and condition or Sixth Restated Credit Agreement with respect to Fiscal Year 2014 may be carried forward to Fiscal Year 2015 under this Agreement), (y) funded by such carried forward amount will be used first in such following Fiscal Year, prior to using the proceeds amount otherwise available in such Fiscal Year pursuant to this clause (a), and (z) the maximum amount available of equity capital contributions from Wynn Resorts (or another Loan Party Capital Expenditures in any Fiscal Year that may be carried forward 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 and (ii) 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. immediately following Fiscal Year 2006 $ 100,000,000 Fiscal Year 2007 $ 125,000,000 Fiscal Year 2008 $ 160,000,000 Fiscal Year 2009 and each Fiscal Year thereafter $ 175,000,000 Notwithstanding the foregoing, (a) the amounts referred to above shall be increased from time to time by not exceed 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 available for Capital Expenditures (other than the Additional Entertainment Facility and/or the Retail Facility) during the relevant in such first Fiscal Year (without taking into account any amount carried over from the previous Fiscal Year); and (b) if Capital Expenditures of Borrower and its Restricted Subsidiaries to the extent of any amount referred Net Cash Proceeds received by Borrower as a capital contribution or from issuances or sales to above Holdings of Capital Stock of Borrower, in each case after the Fourth Restated Credit Agreement Closing Date, to the extent that (as increased x) such Net Cash Proceeds are not required to be applied to repay Loans pursuant to clause Sections 2.13(b) and 2.14 (aof this Agreement or any Prior Credit Agreement), and (y) aboveBorrower could make a Restricted Payment of the same amount pursuant to Section 6.6(e) is not expended in the Fiscal Year for which (it is permitted, 100% of being understood that any such nonCapital Expenditures shall, without duplication, reduce dollar-expended amounts (for-dollar the “Carryover Amount”amount available for Restricted Payments under Section 6.6(e)). Permitted Acquisitions made in accordance with Section 6.8(f) may shall not be carried over deemed to be Capital Expenditures for expenditure in the next succeeding Fiscal Year (with amounts expended in any Fiscal Year applied first against the Carryover Amount (if any) and second against amounts set forth above in respect purposes of such Fiscal Year)this Section 6.7.

Limitation on Capital Expenditures. Make (a) The Borrower Parties will not make or incur commit to make any Capital Expenditure in an amount greater than $10,000,000 in any fiscal year, if any Lender Party or the FRBNY shall have notified the applicable Borrower Party of its objection thereto following receipt of written notice not less than 10 Business Days prior to any such Capital Expenditure. (b) Notwithstanding the exclusion from the definition of Capital Expenditures of expenditures (including Capital Lease Obligations) in any Fiscal Year indicated below respect of aircraft and aircraft related equipment, the Borrower Parties will not make or commit to make an acquisition of an aircraft (other than pursuant to an exercise of rights or remedies under a secured loan, conditional sale or finance lease or transfer in lieu thereof or an aggregate amount among all Loan Parties in excess exercise of rights under a residual value guaranty, loss guaranty or similar arrangement) that as of the corresponding amount set forth below opposite Effective Date is not the subject of an existing contractual commitment to acquire such Fiscal Yearaircraft (each a “Proposed Aircraft Purchase”), if any Required Person shall have notified the applicable Borrower Party of its objection to such Proposed Aircraft Purchase within thirty (30) days following written notice from the applicable Borrower Party of such Proposed Aircraft Purchase, which notice shall be given by such Borrower Party not less than forty five (45) days prior to the commitment to make such acquisition (such written notice to include a summary description of the aircraft, the reason for acquiring the aircraft, the purchase price of the aircraft, the proposed lessee of the aircraft together with the rent and lease term in respect of any proposed lease of the aircraft, and the means by which the Parent Borrower proposes to finance the acquisition of the aircraft); provided that, notwithstanding the foregoing, no Required Person shall have the right to object to a Proposed Aircraft Purchase to the extent that (x) the purchase price of such Proposed Aircraft Purchase, together with the purchase price of any other Proposed Aircraft Purchase of any Borrower Party not consented to by the Required Persons pursuant to this clause that became subject to a contractual commitment entered into in the applicable fiscal year, does not exceed $100,000,000 in the aggregate in such applicable fiscal year and (y) the applicable Borrower Party has provided a written notice of such Proposed Aircraft Purchase consistent with this clause (b) and has consulted with the FRBNY with respect to such Proposed Aircraft Purchase during the thirty (30) day period referred to above. This clause (b) shall not apply to (i) other exchanges of “delivery slots” in respect of an aircraft to be purchased from a manufacturer unless the aggregate purchase price for the aircraft contractually committed to be purchased is increased by more 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 $25,000,000 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 and (ii) other than the incurrence of a 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 2006 $ 100,000,000 Fiscal Year 2007 $ 125,000,000 Fiscal Year 2008 $ 160,000,000 Fiscal Year 2009 and each Fiscal Year thereafter $ 175,000,000 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 (as increased pursuant to clause (a) above) is not expended in the Fiscal Year for which it is permitted, 100% 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 any Fiscal Year applied first against the Carryover Amount (if any) and second against amounts set forth above Lease Obligation in respect of an aircraft that is either the subject of an existing contractual commitment to purchase as of the Effective Date or already Owned at the time of such Fiscal Year)incurrence.

Limitation on Capital Expenditures. Make Make, commit to make or incur Capital Expenditures Expenditures, in any Fiscal Year indicated below below, in an aggregate amount among all Loan Parties in excess of the corresponding amount amounts set forth below opposite such Fiscal Year; provided provided, that (i) 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 and the Phase II 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 or the Golf Course Land or improvements thereon in excess of (A) $3,000,000 during the period from the Phase I Opening Completion Date through the 18 month anniversary thereof and (B) $5,000,000 in any 12 month period thereafter thereafter, and (ii) in no event shall any Loan Party commit to make or incur Capital Expenses with respect to the Phase II Land or improvements thereon in excess of $5,000,000 in any Fiscal Year; provided, further, that 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, in each case 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 2005 $ 25,000,000 Fiscal Year 2006 $ 100,000,000 50,000,000 Fiscal Year 2007 $ 125,000,000 60,000,000 Fiscal Year 2008 $ 160,000,000 65,000,000 Fiscal Year 2009 and each Fiscal Year thereafter $ 175,000,000 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 (as increased pursuant to clause (a) above) is not expended in the Fiscal Year for which it is permitted, 100% 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 any Fiscal Year applied first against the Carryover Amount (if any) and second against amounts set forth above in respect of such Fiscal Year).52,500,000

Limitation on Capital Expenditures. Make or incur Capital Expenditures Expenditures, in any Fiscal Year indicated below below, in an aggregate amount among all Loan Parties in excess of the corresponding amount set forth below opposite such Fiscal Year; provided provided, that (i) 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 and (ii) 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 interxxxxary 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 $ 100,000,000 Fiscal |$80,000,000 | |---------------------------|---------------------------------------------| |Fiscal Year 2007 $ 125,000,000 Fiscal |$100,000,000 | |---------------------------|---------------------------------------------| |Fiscal Year 2008 $ 160,000,000 Fiscal Year 2009 and each Fiscal |$120,000,000; provided, that if the Phase II | |Fiscal Year thereafter $ 175,000,000 |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 (as increased pursuant to clause (a) above) is not expended in the Fiscal Year for which it is permitted, 10050% 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 any the next succeeding Fiscal Year applied first against the Carryover Amount (if any) and second against amounts set forth above in respect of such succeeding Fiscal Year).

Limitation on Capital Expenditures. Make The Borrower shall not, and shall not permit any Subsidiary to, directly or incur indirectly make or commit to make any Capital Expenditure prior to the date on which the Borrower exercises the Target Leverage Option except: (a) Maintenance Capital Expenditures; and (b) Growth Capital Expenditures; provided, that, after giving effect to any such Growth Capital Expenditure the aggregate amount of Growth Capital Expenditures in any Fiscal Year indicated below in an aggregate amount among all Loan Parties in excess made or committed to be made (measured as of the corresponding amount set forth below opposite date that each such Fiscal Year; provided that Growth Capital Expenditure is made or committed to be made) during (i) other than the period commencing on April 1, 2013 and ending on December 31, 2013, and (ii) the period commencing on January 1, 2014 and ending on June 30, 2015, for each such period calculated separately does not exceed $25,000,000; provided, however, that the Borrower may make or commit to make (or permit any Subsidiary to make or commit to make) additional Growth Capital Expenditures of up to $3,000,000 for each such period calculated separately so long as (A) the Borrower causes the General Partner and/or Southcross Holdings to deposit funds in a dollar amount equal to the excess of (x) necessary to keep all associated Property and systems reasonably related to the operation aggregate amount of the Golf Course Land and improvements thereon in good and working order and condition or Growth Capital Expenditures for such period over (y) funded by $25,000,000 (the proceeds aggregate dollar amount of equity capital contributions from Wynn Resorts (or another Loan Party all funds so deposited being referred to herein as the “Equity Funded Capital Expenditure Amount”) into the GP Cash Collateral Account prior to the extent acting as an intermediary for purposes time that such Growth Capital Expenditure is made or committed to be made and, in any case, on or prior to the last Subsequent Equity Contribution Date (which Capital Expenditure Collateral Amount shall be above and in addition to the amount on deposit in the GP Cash Collateral Account on such date and shall not be netted or credited against any other amounts required or permitted to be deposited or maintained in the GP Cash Collateral Account pursuant to Section 9.01(e)(ii) or any other terms or conditions of contributing equity capital contributions from Wynn Resorts for such Capital Expendituresthis Agreement or any other Loan Document), 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 and (ii) other than the aggregate amount of Growth Capital Expenditures (x) necessary made or advisable committed to keep all associated Property and systems reasonably related to the operation of the Aircraft be made 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 each such Capital Expenditures), in no event shall period calculated separately does not exceed $28,000,000 at any Loan Party commit to make or incur Capital Expenditures with respect to the Aircraft. Fiscal Year 2006 $ 100,000,000 Fiscal Year 2007 $ 125,000,000 Fiscal Year 2008 $ 160,000,000 Fiscal Year 2009 and each Fiscal Year thereafter $ 175,000,000 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 (as increased pursuant to clause (a) above) is not expended in the Fiscal Year for which it is permitted, 100% 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 any Fiscal Year applied first against the Carryover Amount (if any) and second against amounts set forth above in respect of such Fiscal Year)time.

Limitation on Capital Expenditures. Make or incur any Capital Expenditure, except 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 (i) other than Capital Expenditures Borrower and its Subsidiaries in the ordinary course of business not exceeding for any fiscal year the sum of (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 Permitted CapEx Amount, plus (y) funded the Available Amount, plus (z) the aggregate amount of Net Cash Proceeds reinvested by the proceeds Borrower and its Subsidiaries during such fiscal year in connection with reinvestment of equity capital contributions from Wynn Resorts (or another Loan Party to the extent acting as an intermediary for purposes Net Cash Proceeds 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 (AAsset Sales and Recovery Events permitted by Section 2.5(b) $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 and (ii) 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 2006 $ 100,000,000 Fiscal Year 2007 $ 125,000,000 Fiscal Year 2008 $ 160,000,000 Fiscal Year 2009 and each Fiscal Year thereafter $ 175,000,000 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 reinvestment constitutes Capital Expenditures. Notwithstanding anything to the contrary set out above, (i) to the extent that the aggregate amount of Capital Expenditures (other made by the Borrower and the Restricted Subsidiaries in any fiscal year is less than the Additional Entertainment Facility and/or the Retail Facility) during the relevant Fiscal Year and (b) if any amount referred to above (as increased pursuant to clause (a) above) is not expended in the Fiscal Year for which it is permittedPermitted CapEx Amount, 10050% of any the amount of such non-expended amounts difference (the “Carryover Rollover Amount”) may be carried over for expenditure forward and used to make Capital Expenditures in the next two immediately succeeding Fiscal Year fiscal years (with amounts expended provided that before any Rollover Amount may be used to make Capital Expenditures in any Fiscal Year applied first against fiscal year, the Carryover Permitted CapEx Amount (if anyfor such fiscal year shall have been used in full to make Capital Expenditures for such fiscal year) and second against amounts set forth above (ii) for any fiscal year, the amount of Capital Expenditures that would otherwise be permitted in such fiscal year pursuant to this Section 7.7 (including as a result of the application of clause (i) of Section 7.7) may be increased by an amount not to exceed 50% of the Permitted CapEx Amount for the immediately succeeding fiscal year (the “CapEx Pull-Forward Amount”) (provided that before any Capital Expenditures are made in a fiscal year pursuant to the CapEx Pull-Forward Amount, Capital Expenditures shall have been made in such fiscal year in an amount equal to the Capital Expenditures otherwise permitted in such fiscal year pursuant to this Section 7.7 (including as a result of the application of clause (i) of this sentence)). The actual CapEx Pull-Forward Amount in respect of any such Fiscal Year).fiscal year shall reduce, on a dollar-for-dollar basis, the Permitted CapEx Amount for the immediately succeeding fiscal year. As used in this Section 7.7, “Permitted CapEx Amount” means for each fiscal year set forth below, the amount set forth opposite such fiscal year: