Exhibit 10.4
EXECUTION COPY
GUARANTY
To: The CIT Group/Equipment Financing, Inc. ("CIT")
Bank of America, N.A. ("BofA")
Xxxxx Fargo Bank, National Association, as Collateral Agent
The undersigned (hereinafter the "undersigned" or the "Guarantor")
requests each of you to extend credit to or to purchase security agreements,
leases, notes, accounts and/or other obligations (herein generally termed
"paper") of or from or otherwise to do business with XXXXX FARGO BANK
NORTHWEST, NATIONAL ASSOCIATION, not in its individual capacity, but solely as
Owner Trustee under the Trust Agreement dated as of May 10, 2002 with World
Travel, LLC, as Trustor (the "Owner"), and WORLD TRAVEL, LLC (the "Company"),
and to induce you so to do and in consideration thereof and of benefits to
accrue to the undersigned therefrom, the undersigned, as a primary obligor,
unconditionally guarantees to you that the Company will fully and promptly pay
and perform all of its present and future obligations to you under the
Operative Documents, including, without limitation, the principal amount of and
interest on the Notes and all other amounts due and owing to you under the
Operative Documents, whether direct or indirect, joint or several, absolute or
contingent, secured or unsecured, matured or unmatured and whether originally
contracted with you or otherwise acquired by you, irrespective of any
invalidity or unenforceability of any such obligation or the insufficiency,
invalidity or unenforceability of any security therefor; and agrees, without
your first having to proceed against the Company or to liquidate paper or any
security therefor, to pay on demand all sums due and to become due to you under
the Operative Documents, including, without limitation, the principal amount of
and interest on the Notes and all other amounts due and owing to you under the
Operative Documents, from the Company and all costs, attorneys' fees or
expenses which may be suffered by you by reason of the Company's default or
default of the undersigned hereunder. This guaranty is an unconditional
guarantee of payment and performance. The guarantor shall not be released or
discharged, either in whole or in part, by your failure or delay to perfect or
continue the perfection of any security interest in any property which secures
the obligations of the Company or the undersigned to you, or to protect the
property covered by such security interest. Capitalized terms used herein and
not otherwise defined shall have the meaning set forth in Appendix 1 hereto.
The undersigned hereby further agrees and covenants to the agreements
set forth on Schedule A hereto.
No termination hereof shall be effected by the bankruptcy, insolvency
or cessation of business as a going concern of the undersigned or the Company.
It is the purpose and intent of the undersigned that its obligations under this
guaranty shall be absolute and unconditional and that this guaranty shall
remain in full force and effect until the irrevocable payment in full of all
obligations guaranteed hereby.
The undersigned waives: notice of acceptance hereof; presentment,
demand, protest and notice of nonpayment or protest as to any note or
obligation signed, accepted, endorsed or assigned to you by the Company, any
and all rights of subrogation, reimbursement, indemnity, exoneration,
contribution or any other claim which the undersigned may now or hereafter have
against the Company or any other person directly or contingently liable for the
obligations guaranteed hereunder, or against or with respect to the Company's
property (including, without limitation, property collateralizing its
obligations to you), arising from the existence or performance of this guaranty
until payment in full of all obligations guaranteed hereby; any and all
defenses based on suretyship or any other applicable law, including without
limitation all rights and defenses arising out of (i) an election of remedies
by you even though that election of remedies may have destroyed rights of
subrogation and reimbursement against the Company by operation of law or
otherwise, (ii) protections afforded to the Company pursuant to antideficiency
or similar laws limiting or discharging the Company's obligations to you, (iii)
the invalidity or unenforceability of this guaranty or any of the Operative
Documents or the impossibility or illegality of performance of any obligations
thereunder, (iv) the failure to notify the undersigned of the disposition of
any property securing the obligations of the Company, (v) the commercial
reasonableness of such disposition or the impairment, however caused, of the
value of such property, (vi) any change in circumstances affecting performance
by the undersigned or the Company, and (vii) any duty on your part (should such
duty exist) to disclose to the undersigned any matter, fact or thing related to
the business operations or condition (financial or otherwise) of the Company or
its affiliates or property, whether now or hereafter known by you.
You may at any time and from time to time, without the undersigned's
consent, without notice to the undersigned and without affecting or impairing
the obligation of the undersigned hereunder, do any of the following:
(a) renew, extend (including extensions beyond the original
term of the respective item of paper), modify (including changes in
interest rates), release or discharge any obligations of the Company,
of its customers, of co-guarantors (whether hereunder or under a
separate instrument) or of any other party at any time directly or
contingently liable for the payment of any of said obligations;
(b) accept partial payments of said obligations;
(c) accept new or additional documents, instruments or
agreements relating to or in substitution of said obligations;
(d) settle, release (by operation of law or otherwise),
compound, compromise, collect or liquidate any of said obligations and
the security therefor in any manner;
(e) consent to the transfer or return of the security, take
and hold additional security or guaranties for said obligations;
(f) amend, exchange, release or waive any security or
guaranty: or
(g) bid and purchase at any sale of paper or security and
apply any proceeds or security, and direct the order and manner of
sale.
If a claim is made upon you at any time for repayment or recovery of
any amount(s) or other value received by you, from any source, in payment of or
on account of any of the obligations of the Company guaranteed hereunder and
you repay or otherwise become liable for all or any part of such claim by
reason of:
(a) any judgment, decree or order of any court or
administrative body having competent jurisdiction; or
(b) any settlement or compromise of any such claim,
the undersigned shall remain liable to you hereunder for the amount so repaid
or for which you are otherwise liable to the same extent as such amount(s) had
never been received by you, notwithstanding any termination hereof or the
cancellation of any note or other agreement evidencing any of the obligations
of the Company. This guaranty shall bind our respective heirs, administrators,
representatives, successors, and assigns, and shall inure to your successors
and assigns, including, but not limited to, any party to whom you may assign
any item or items of paper, the undersigned hereby waiving notice of any such
assignment. All of your rights are cumulative and not alternative.
This Agreement may only be amended, and the observance of any term
hereof may be waived (either retroactively or prospectively), with (and only
with) the written consent of the Guarantor and the Required Lenders.
THIS GUARANTY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES (EXCEPT TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
Any suit by Collateral Agent, BofA or CIT to enforce any claim arising
out of this guaranty or any other Operative Document may be brought in any
state or Federal court located in New York having subject matter jurisdiction,
and with respect to any such claim, each party to the Operative Documents
hereby irrevocably: (a) submits to the non-exclusive jurisdiction of such
courts; and (b) consents to the service of process out of said courts in the
manner provided for notices set forth below. The Guarantor irrevocably waives,
to the fullest extent permitted by law: (A) any claim, or any objection, that
it now or hereafter may have, that venue is not proper with respect to any such
suit, action or proceeding brought in such a court located in New York
including, without limitation, any claim that any such suit, action or
proceeding brought in such court has been brought in an inconvenient forum; and
(B) any claim that the Guarantor is not subject to personal jurisdiction or
service of process in such forum. The Guarantor agrees that any suit to enforce
any claim arising out of the Operative Documents or any course of conduct or
dealing of Collateral Agent, BofA or CIT shall be brought and maintained
exclusively in any state or Federal court located in New York. Nothing in this
paragraph shall affect the right of Collateral Agent or any Lender to bring any
action or proceeding against the Company, the Guarantor or the Collateral in
the courts of any other jurisdiction. The Guarantor agrees that a final
judgment in any action or proceeding in a state or Federal court within the
United States may be enforced in any other jurisdiction by suit on the judgment
or in any other manner provided by law.
BY EXECUTION OF THIS GUARANTY THE UNDERSIGNED, AND BY THEIR ACCEPTANCE
OF THIS GUARANTY THE COLLATERAL AGENT, BOFA AND CIT, AGREE TO WAIVE ALL RIGHTS
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ON ANY MATTER
WHATSOEVER ARISING OUT OF, IN CONNECTION WITH, OR RELATED TO THIS GUARANTY.
All demands, notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when personally delivered
or one business day after being sent by overnight delivery service or three
days after being deposited in the mail, certified mail postage prepaid, or when
sent by facsimile transmission, if confirmed by mechanical confirmation and if
a copy thereof is promptly thereafter personally delivered, sent by overnight
delivery service or so deposited in the mail, addressed to: (A) the Company,
the Guarantor or Collateral Agent at the address set forth below, or at such
other address as may hereafter be furnished by either party to the other and
(B) each Lender at its address set forth below its signature to its Note:
(i) if to the Company:
WORLD TRAVEL, LLC
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
World Travel, LLC
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(ii) if to Guarantor:
XXXX LAS VEGAS, LLC,
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Xxxx Las Vegas, LLC
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(iii) if to the Collateral Agent:
Xxxxx Fargo Bank,
National Association
000 Xxxxx Xxxx Xxxxxx, 00xx Floor
MAC X0000-000
Xxxx Xxxx Xxxx, Xxxx 00000
Dated: May 24, 2005
XXXX LAS VEGAS, LLC,
a Nevada limited liability company,
as the Guarantor
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
By: Xxxx Resorts Holdings, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited,
a Nevada corporation,
its sole member
By: /s/ Xxxx X. Xxxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Sr. VP & Secretary
SCHEDULE A
FINANCIAL CONDITION COVENANTS
Section 1.1. The Guarantor hereby agrees that it shall comply with the
covenants of the Guarantor as set forth in Section 7.1 of the Wynn Credit
Agreement, as calculated in accordance with the terms of the Wynn Credit
Agreement.
Section 1.2. The Guarantor hereby agrees that it shall, directly or
indirectly:
(a) Furnish to the Lenders so long as there are not more
than two Lenders, and to the Collateral Agent, if there are more than
two Lenders, which the Collateral Agent shall deliver to the Lenders:
(i) as soon as available, but in any event not
later than the earlier of (1) 10 days after the filing with
the Securities Exchange Commission of the Guarantor's Annual
Report (or Wynn Resorts' Annual Report if no Annual Report
for the Guarantor has been filed) on Form 10-K (or successor
form thereto) with respect to each fiscal year and (2) 90
days after the end of each fiscal year, a copy of the audited
consolidated balance sheets of the Guarantor 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;
(ii) as soon as available, but in any event not
later than the earlier of (1) 10 days after the filing with
the Securities Exchange Commission of the Guarantor's
Quarterly Report (or Wynn Resorts' Quarterly Report if no
Quarterly Report for the Guarantor 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 (2) 45
days after the end of each of the first three quarterly
periods of each fiscal year, the unaudited consolidated
balance sheets of the Guarantor 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
All such financial statements shall be complete and correct in all
material respects (in the case of financial statements delivered
pursuant to subsection (ii) of this Section 1.2(a), 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 (i) and (ii) of this Section 1.2(a), 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).
(b) Furnish to the Lenders so long as there are not more
than two Lenders, and to the Collateral Agent, if there are more than
two Lenders, which the Collateral Agent shall deliver to the Lenders
concurrently with the delivery of any financial statements pursuant to
Section 1.2(a), (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 (as defined in the
Security Agreement) except as specified in such certificate and (ii)
in the case of quarterly or annual financial statements, a compliance
certificate containing all information and calculations necessary for
determining compliance by the Guarantor with the provisions of Section
1.1 of this Schedule as of the last day of the applicable fiscal
quarter or fiscal year, as the case may be.
Unless otherwise defined in Appendix 1 hereto, all capitalized terms
used herein shall have the meanings set forth in the Wynn Credit Agreement.
APPENDIX 1
TO
OPERATIVE DOCUMENTS
In the Operative Documents, unless the context otherwise requires:
(a) any term defined below by reference to another
instrument or document shall continue to have the meaning ascribed
thereto whether or not such other instrument or document remains in
effect;
(b) words importing the singular include the plural and vice
versa;
(c) a reference to a part, clause, section, article, exhibit
or schedule is a reference to a part, clause, section and article of,
and exhibit and schedule to, such Operative Document;
(d) a reference to any statute, regulation, proclamation,
ordinance or law includes all statutes, regulations, proclamations,
ordinances or laws amending, supplementing, supplanting, varying,
consolidating or replacing them, and a reference to a statute includes
all regulations, proclamations and ordinances issued or otherwise
applicable under that statute;
(e) a reference to a document includes any amendment or
supplement to, or replacement or novation of, that document;
(f) a reference to a party to a document includes that
party's successors and permitted assigns; and
(g) references to "including" means including without
limiting the generality of any description preceding such term and for
purposes hereof the rule of ejusdem generis shall not be applicable to
limit a general statement followed by or referable to an enumeration
of specific matters to matters similar to those specifically
mentioned.
Further, each of the parties to the Operative Documents and their
counsel have reviewed and revised the Operative Documents, or requested
revisions thereto, and the usual rule of construction that any ambiguities are
to be resolved against the drafting party shall be inapplicable in construing
and interpreting the Operative Documents.
"Act" is defined in Paragraph 6(f) of the Security Agreement.
"Adjusted Base Rate" shall mean the Base Rate plus the Applicable
Lender Margin.
"Adjusted LIBOR Rate" shall mean the LIBOR Rate plus the Applicable
Lender Margin.
"Administrative Charge" shall mean an amount equal to the amount, if
any, required to compensate each Lender for any loss (other than loss of
anticipated profits) or expense that such Lender may incur as a result of the
Makers' payment of principal on a Promissory Note and Agreement on any date
other than on a Payment Date. 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 to the last day of such Interest period
in each case at the applicable rate of interest for such Loans provided for
herein (excluding, however, the Applicable Lender 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 market. A
certificate as to any amounts payable pursuant to this definition submitted to
the Makers by any Lender shall be conclusive in the absence of manifest error.
"Affiliate" shall mean, 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.
"Aircraft" is defined in Paragraph 1 of the Security Agreement.
"Aircraft Lease" is defined in Paragraph 7(d) of the Security
Agreement.
"Aircraft Trust" is defined in Paragraph 1 of the Security Agreement.
"Airframe" is defined in Paragraph 1 of the Security Agreement.
"Applicable Administrative Charge" shall mean, as of any date of
determination in respect of any event, any Administrative Charge determined to
be due and owing in respect of such event.
"Applicable Lender Margin" shall mean (i) at any time of determination
of the LIBOR Rate, 2.375% per annum, and (ii) at any time of determination of
the Base Rate, 1.25% per annum.
"Approved Lease" means the Aircraft Lease Agreement dated as of May
24, 2005 by and between Owner and World Travel (the "Aircraft Head Lease") or
any other lease or operating agreement between Owner and World Travel, or any
Affiliate of World Travel, substantially in the form of the Aircraft Head
Lease.
"Approved Sublease" means the Aircraft Sublease made and entered into
as of the 24th day of May, 2005 by and between World Travel and Las Vegas Jet,
LLC (the "Aircraft Sublease"), or any other lease between World Travel, or any
Affiliate of World Travel, substantially in the form of the Aircraft Sublease.
"Assignee" is defined in Paragraph 13 of the Security Agreement.
"Base Rate" for any day shall mean 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.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"BofA" shall mean Bank of America, N.A., together with its successors
and assigns.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) 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 or Salt Lake
City, Utah are authorized or required by law to close and (ii) with respect to
all notices and determinations in connection with, and payments of principal
and interest on, amounts under this Promissory Note and Agreement bearing
interest at the Adjusted LIBOR Rate, any day which is a Business Day described
in clause (i) above and which is also a day for trading by and between banks in
Dollar deposits in the New York interbank market.
"Casualty" shall mean any of the following events in respect of the
Aircraft or Airframe: (a) the total loss of such Aircraft or Airframe, the
total loss of use thereof due to theft, disappearance, destruction, damage
beyond repair or the rendering of such Aircraft or Airframe permanently unfit
for normal use for any reason whatsoever (other than obsolescence); (b) any
damage to such Aircraft or Airframe which results in an insurance settlement
with respect to such Aircraft or Airframe on the basis of a total loss or a
constructive total loss; (c) the permanent condemnation, confiscation or
seizure of, or the requisition of title to or use of, such Aircraft or
Airframe; or (d) as a result of any Requirement of Law or other action by any
Governmental Agency, the use of such Aircraft or Airframe in the normal course
of the Makers' or any of their affiliate's business shall have been prohibited,
directly or indirectly, for a period equal to the lesser of 180 consecutive
days and the remaining period until the Maturity Date.
"Casualty Amount" is defined in Schedule 3 to the Promissory Notes and
Agreements.
"Casualty Notice" is defined in Schedule 3 to the Promissory Notes and
Agreements.
"Casualty Settlement Date" is defined in Schedule 3 to the Promissory
Notes and Agreements.
"CIT" shall mean The CIT Group/Equipment Financing, Inc., together
with its successors and assigns.
"Collateral" is defined in Paragraph 1 of the Security Agreement.
"Collateral Agent" shall mean Xxxxx Fargo Bank, National Association,
as collateral agent under the Intercreditor Agreement and its successors.
"Debtors" shall mean the Owner and World Travel.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"Engine" is defined in Paragraph 1 of the Security Agreement.
"Event of Default" shall have the meaning set forth in Paragraph 9 of
the Security Agreement.
"FAA" shall mean the Federal Aviation Administration, or any successor
agency thereto.
"Federal Funds Effective Rate" for any day shall mean 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
Collateral Agent from three federal funds brokers of recognized standing
selected by it.
"GAAP" shall mean generally accepted accounting principles in the
United States, from time to time.
"Governmental Agency" or "Governmental Authority" shall mean 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), and 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.
"Guarantor" shall mean Wynn Las Vegas, LLC, a Nevada limited liability
company.
"Guaranty" shall mean that certain Guaranty dated May 24, 2005 by the
Guarantor in favor of the Lenders and the Collateral Agent.
"Intercreditor Agreement" shall mean that certain Intercreditor and
Collateral Agency Agreement dated May 24, 2005 among the Lenders and the
Collateral Agent.
"Interest Period" shall mean, initially, the period commencing on the
borrowing, with respect to the Promissory Notes and Agreements and ending June
30, 2005, and thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to the Promissory Notes and Agreements and
ending 3 months thereafter; provided that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period that would otherwise extend beyond
the Maturity Date shall end on the Maturity 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.
"Interest Rate" shall mean, for each day during each Interest Period
with respect thereto, (i) a rate per annum equal to the Adjusted LIBOR Rate or
(ii) if the LIBOR Rate is illegal, unavailable or impracticable, as described
in Schedule 1 to the Promissory Notes and Agreements, the Adjusted Base Rate.
"Lender" shall mean BofA or CIT and "Lenders" shall mean BofA and CIT,
collectively.
"LIBOR Rate" shall mean, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for deposits in U.S. Dollars for a 3 month period which
appears on the Bloomberg Page BBAM published by the British Bankers Association
or any successor page or source thereto, effective as of 11:00 a.m. (London,
England time) two (2) Business Days prior to the beginning of such Interest
Period; provided that the LIBOR Rate for the first Interest Period commencing
on the borrowing shall be a rate per annum for a 30-day period.
"Loans" shall mean the principal amount outstanding on all of the
Promissory Notes and Agreements secured by the Security Agreement.
"Maintenance Program" is defined in Paragraph 6(f) of the Security
Agreement.
"Makers" shall mean the Owner and World Travel.
"Maturity Date" shall mean March 31, 2010, or such earlier date on
which:
(i) the Makers are required to pay the Casualty Amount, or
(ii) the Makers elect to pay the Payoff Amount, or
(iii) the holder of this Negotiable Promissory Note and
Agreement elects to accelerate it note's maturity pursuant to the
provisions hereof.
"Minimum Prepayment Amount" shall mean $10,000,000 of the aggregate
principal amount of the Loans then outstanding.
"Operative Documents" shall mean the Promissory Notes and Agreements,
the Security Agreement, the Guaranty and the Intercreditor Agreement.
"Overdue Rate" shall mean rate per annum which is 2% above the
applicable Interest Rate then in effect.
"Owner" is defined in Paragraph 1 of the Security Agreement.
"Parts" is defined in Paragraph 1 of the Security Agreement.
"Payment Date" shall mean (i) the last day of each Interest Period and
(ii) the Maturity Date.
"Pay Off Amount" is defined in the Prepayment Rider to the Negotiable
Promissory Notes and Agreements.
"Permitted Liens" is defined in Paragraph 2 of the Security Agreement.
"Person" shall mean 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.
"Prime Rate" shall mean the rate which Bank of America, N.A.
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 Bank of America, N.A. to any customer of Bank of America,
N.A. The Makers acknowledge that Bank of America, N.A. may, from time to time,
make commercial loans or other loans at rates of interest at, above or below
the Prime Rate.
"Promissory Notes and Agreements" shall mean the Promissory Notes and
Agreements dated May 24, 2005 by the Makers in favor of each of BofA and CIT.
"Property" shall mean 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.
"Required Lenders" shall mean at anytime, the Lenders holding 76% or
more in principal or face amount of the Promissory Notes and Agreements of the
Debtors then outstanding.
"Requirement of Law" shall mean, as to any Person, the governing
documents of such Person, and any law, treaty, order, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its Property or
to which such Person or any of its Property is subject.
"Security Agreement" shall mean that certain Security Agreement, dated
May 24, 2005 between each of the Debtors and the Collateral Agent.
"Secured Party" shall mean the Collateral Agent.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the State of Nevada.
"World Travel" shall mean World Travel, LLC, a Nevada limited
liability company.
"Xxxx Credit Agreement" shall mean the CREDIT AGREEMENT dated as of
December 14, 2004 and entered into among the Guarantor, 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, XXXXXXX & CO. INC., as arranger and
joint book running manager, BEAR XXXXXXX CORPORATE LENDING INC., as joint
documentation agent, X.X. XXXXXX 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, as the same may be, in whole or
in part, amended, restated, refinanced, renewed, extended, supplemented or
otherwise modified from time to time; provided that if at any time the Xxxx
Credit Agreement is no longer in effect, "Xxxx Credit Agreement" shall refer to
the terms, covenants and definitions set forth in the Xxxx Credit Agreement as
in effect on the last day such agreement was in effect.
