FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
10.1
FOURTH
AMENDMENT TO
AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT (this “Fourth
Amendment”), dated as of April 17, 2009 and effective as of the Fourth
Amendment Effective Date (as hereinafter defined), is made and entered into by
and among XXXX LAS VEGAS, LLC, a Nevada limited liability company (the “Borrower”),
the WYNN AMENDMENT PARTIES (as hereinafter defined), and EACH OF THE LENDERS
LISTED ON THE SIGNATURE PAGES HEREOF (the “Consenting
Lenders”).
RECITALS
A. The
Borrower and the Consenting Lenders are parties to that certain Amended and
Restated Credit Agreement, dated as of August 15, 2006, as amended by that
certain First Amendment to Amended and Restated Credit Agreement, dated as of
April 9, 2007, that certain Second Amendment to Amended and Restated Credit
Agreement, dated as of October 31, 2007, and that certain Third Amendment to
Amended and Restated Credit Agreement, dated as of September 17, 2008 (the
“Credit
Agreement”), among the Borrower, Deutsche Bank Trust Company Americas, as
administrative agent (in such capacity, the “Administrative
Agent”), issuing lender and swing line lender, Deutsche Bank Securities
Inc., as lead arranger and joint book running manager, Banc of America
Securities LLC, as lead arranger and joint book running manager, Bank of
America, N.A., as syndication 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, Societe Generale, as joint documentation agent, Bank of
Scotland, as managing agent, HSH Nordbank AG, as managing agent, The Royal Bank
of Scotland plc, as managing agent, Wachovia Bank, as managing agent, and the
several banks and other financial institutions or entities from time to time
parties thereto as lenders (the “Lenders”;
each Lender that is not a Consenting Lender shall be referred to herein as a
“Non-Consenting
Lender”).
B. In
connection with the Credit Agreement, each of Wynn Las Vegas Capital Corp., a
Nevada corporation (“Capital
Corp.”), Wynn Show Performers, LLC, a Nevada limited liability company
(“Show
Performers”), Xxxx Golf, LLC, a Nevada limited liability company (“Xxxx
Golf”), Xxxx Sunrise, LLC, a Nevada limited liability company (“Wynn
Sunrise”), World Travel, LLC, a Nevada limited liability company (“World
Travel”), Kevyn, LLC, a Nevada limited liability company (“Kevyn”),
Las Vegas Jet, LLC, a Nevada limited liability company (“Las
Vegas Jet”), Wynn Resorts Holdings, LLC, a Nevada limited liability
company (“Wynn
Resorts Holdings”), and Wynn Completion Guarantor, LLC, a Nevada limited
liability company (“Completion
Guarantor” and together with Capital Corp., Show Performers, Wynn Golf,
Xxxx Sunrise, World Travel, Kevyn, Las Vegas Jet and Wynn Resorts Holdings, the
“Xxxx
Amendment Parties”), have executed certain Loan Documents (as defined in
the Credit Agreement).
C. The
Borrower has requested that the Lenders agree, subject to the conditions and on
the terms set forth in this Fourth Amendment, to make certain amendments to the
Credit Agreement such that, from and after the Fourth Amendment Effective Date,
the terms and provisions of the Credit Agreement shall be as set
forth in the Amended Credit Agreement (as defined
below).
D. The
Consenting Lenders are willing to agree to such amendments, subject to the
conditions and on the terms set forth below.
NOW, THEREFORE, for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. Except
as otherwise expressly provided herein, capitalized terms used in this Fourth
Amendment shall have the meanings given in the Credit Agreement (prior to giving
effect to this Fourth Amendment) and the rules of interpretation set forth in
the Credit Agreement shall apply to this Fourth Amendment. The
following terms used in this Fourth Amendment shall have the meanings given in
the Amended Credit Agreement: Revolving 1 Extensions of Credit,
Revolving 2 Extensions of Credit, Revolving Credit 1 Commitment, Revolving
Credit 1 Loans, Revolving Credit 2 Commitment, Revolving Credit 2 Lender,
Revolving Credit 2 Loans and Revolving Credit 2
Percentage.
2. Amendments
to Credit Agreement. The terms and provisions of the Credit
Agreement are hereby amended by replacing such terms and provisions in their
entirety with the terms and provisions set forth in the Amended and Restated
Credit Agreement attached hereto as Exhibit A (the “Amended
Credit Agreement”). Exhibits X, X, X-0, X-0, M and O to the
Credit Agreement are hereby deleted in their entirety and replaced with the
documents attached hereto as Exhibits C, D, E, F, G and H,
respectively.
3. Reduction,
Prepayment and Conversion of Commitments and
Loans. Concurrently with the occurrence of the Fourth
Amendment Effective Date:
(a) (i)
the portion of each Consenting Lender’s Revolving Credit Commitment then in
effect, with respect to which such Lender has agreed to extend the Scheduled
Revolving Credit Termination Date to July 15, 2013 (as indicated on such
Lender’s signature page hereto), shall become and be referred to as a Revolving
Credit 2 Commitment, (ii) the portion of each Consenting Lender’s Revolving
Extensions of Credit then outstanding (other than any Revolving Extensions of
Credit constituting such Lender’s Revolving Credit Percentage of the L/C
Obligations then outstanding) equal to the ratio of such Lender’s Revolving
Credit 2 Commitment to the total Revolving Credit Commitments of such Lender
shall become and be referred to as Revolving 2 Extensions of Credit, (iii) the
portion of the Revolving Credit Loans of each Consenting Lender then outstanding
equal to the ratio of such Lender’s Revolving Credit 2 Commitment to the total
Revolving Credit Commitments of such Lender shall become and be referred to as
Revolving Credit 2 Loans, (iv) the Revolving Credit Commitment of each
Non-Consenting Lender and each Consenting Lender then in effect (other than the
Revolving Credit 2 Commitment of such Consenting Lender) shall be referred to as
a Revolving Credit 1 Commitment, (v) the Revolving Extensions of Credit of each
Non-Consenting Lender and each Consenting Lender then outstanding (other than
the Revolving 2 Extensions of Credit of such Consenting Lender) shall be
referred to as Revolving 1 Extensions of Credit, and (vi) the Revolving Credit
Loans of each Non-Consenting Lender and each Consenting Lender then outstanding
(other than the Revolving Credit 2 Loans of such Consenting Lender) shall be
referred to as Revolving Credit 1 Loans;
(b) immediately
after giving effect to Section 3(a) above, the Borrower shall prepay Revolving
Credit 2 Loans of each Consenting Lender in an amount equal to thirty percent
(30%) of the principal amount of such Revolving Credit 2
Loans;
(c) immediately
after giving effect to Section 3(b) above, the Revolving Credit 2 Commitment of
each Consenting Lender shall be permanently reduced by twenty-five percent (25%)
of the principal and/or face amount of such
commitment;
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(d) to
the extent that the Revolving Credit Lenders hold any interests granted to them
or purchased by them pursuant to Section 3.4(a) of the Credit Agreement as of
the Fourth Amendment Effective Date (any such interests, “Unconverted
L/C Interests”), each Revolving Credit 2 Lender shall purchase from the
Issuing Lender, on the terms and conditions set forth in the Amended Credit
Agreement, for such Revolving Credit 2 Lender’s own account and risk, an
undivided interest in the Issuing Lender’s obligations and rights under the
Letters of Credit to which the Unconverted L/C Interests relate and the amount
of each draft paid by the Issuing Lender thereunder, in an amount equal to such
Revolving Credit 2 Lender’s Revolving Credit 2 Percentage of the Unconverted L/C
Interests. Upon the consummation of all such purchases, the Issuing
Lender shall distribute to each Revolving Credit Lender the amount of its
Unconverted L/C Interests, if any. The interests purchased by the
Revolving Credit 2 Lenders pursuant to this Section 3(d) shall be deemed
interests purchased pursuant to Section 3.4 of the Credit Agreement, as amended
by this Fourth Amendment, and shall constitute Revolving 2 Extensions of
Credit;
(e) after
giving effect to Sections 3(a) through 3(d) above, the principal and/or face
amount of the Revolving Credit 1 Commitment and the Revolving Credit 2
Commitment of each Lender shall be the amount set forth on Annex C to the
Amended Credit Agreement; and
(f) the
Borrower shall pay to the Administrative Agent at its Principal Office, for the
account of each Lender that delivered its executed signature page to this Fourth
Amendment on or prior to 5:00 p.m., New York City time, on April 14, 2009 (the
“Consent
Deadline”), with an indication thereon of its consent to this Fourth
Amendment, a cash fee equal to the sum of (i) 0.15% of the Aggregate Exposure of
such Lender as of the Consent Deadline and (ii) 0.85% of the Revolving Credit 2
Commitment of such Lender after giving effect to the reduction of such
commitment in Section 3(c) hereof.
4. Consenting
Lender Waiver. Each Consenting Lender hereby waives (a)
any amount owing to it pursuant to Section 2.21 of the Credit Agreement (“Breakage
Amount”) to the extent such Breakage Amount is incurred in connection
with the prepayment of Revolving Credit 2 Loans required under Section 3(b)
hereof and (b) the application of Section 2.18 of the Credit Agreement in
respect of the transactions, commitment reductions and prepayments effected
pursuant to Section 3 hereof.
5. Representations
and Warranties. To induce the Consenting Lenders to agree to
this Fourth Amendment, the Borrower represents to the Administrative Agent and
the Lenders that as of the date hereof:
(a) each
of the Borrower and each of the Wynn Amendment Parties has all power and
authority to enter into this Fourth Amendment and to carry out the transactions
contemplated hereby, and to perform its obligations hereunder or in respect
hereof;
(b) the
execution and delivery of this Fourth Amendment and the performance of the
obligations of the Borrower and each of the Wynn Amendment Parties hereunder or
in respect hereof have been duly authorized by all necessary action on the part
of the Borrower and such Wynn Amendment Party;
(c) the
execution and delivery of this Fourth Amendment and the performance of the
obligations of the Borrower and each of the Wynn Amendment Parties hereunder or
in respect hereof do not and will not conflict with or violate (i) any provision
of the articles of incorporation or bylaws (or similar constituent documents) of
the Borrower or such Wynn Amendment Party, (ii) any Requirement of
3
Law, (iii) any order,
judgment or decree of any court or other governmental agency binding on the
Borrower or any Wynn Amendment Party, or (iv) any indenture, agreement or
instrument to which the Borrower or any Wynn Amendment Party is a party or by
which the Borrower or any Wynn Amendment Party, or any property of any of them,
is bound, and do not and will not require any consent or approval of any Person
that has not been obtained;
(d) this
Fourth Amendment has been duly executed and delivered by the Borrower and each
of the Wynn Amendment Parties and each of the Credit Agreement and the other
Loan Documents, as amended by this Fourth Amendment, are the legal, valid and
binding obligations of the Borrower and each of the Wynn Amendment Parties party
thereto, enforceable in accordance with their terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors’ rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law);
(e) after
giving effect to this Fourth Amendment, no event has occurred and is continuing
or will result from the execution and delivery of this Fourth Amendment, that
would constitute a Default or an Event of Default;
(f) since
the Amended and Restated Effective Date (as defined in the Credit Agreement), no
event has occurred that has resulted, or could reasonably be expected to result,
in a Material Adverse Effect; and
(g) each
of the representations and warranties made by the Borrower or any of the Wynn
Amendment Parties in or pursuant to the Loan Documents to which such entity is a
party, as amended hereby, shall be true and correct in all material respects on
and as of the Fourth Amendment Effective Date, as if made on and as of such
date, except for representations and warranties expressly stated to relate to a
specific earlier date, in which case such representations and warranties shall
be true and correct in all material respects as of such earlier
date.
6. Effectiveness
of this Fourth Amendment. This Fourth Amendment shall be
effective only if and when:
(a) Lender
Approval. This Fourth Amendment shall have been executed by
the Borrower, the Wynn Amendment Parties, the Required Lenders, the Required
Facility Lenders under the Revolving Credit Facility, the Required Facility
Lenders under the Term B Loan Facility, the Swing Line Lender and the Issuing
Lender;
(b) Fees,
Interest and Repayment of Loans. All fees and other amounts
required to be paid to the Administrative Agent and its affiliates (whether
pursuant to any of the Loan Documents, any fee letter or otherwise) and all
taxes, fees and other costs payable in connection with the execution, delivery,
recordation and filing of the documents and instruments referred to in this
Section 6 (or otherwise in connection with the Fourth Amendment Effective
Date), shall have been paid in full. All accrued interest and fees
under or with respect to the Revolving Credit Facility as of the Fourth
Amendment Effective Date, before giving effect to this Fourth Amendment
(including, without limitation, Revolving Commitment Fees) shall have been paid
in full. In addition, the Borrower shall have (i) prepaid in full all
outstanding Swing Line Loans and all other amounts owed under the Credit
Agreement with respect to Swing Line Loans as of the Fourth Amendment Effective
Date and (ii) satisfied all Reimbursement Obligations outstanding as of the
Fourth Amendment Effective Date;
4
(c) Loan
Documents. The Borrower shall have delivered to the
Administrative Agent executed copies of any amendments to, or reaffirmation
agreements with respect to, any of the Loan Documents as the Administrative
Agent may reasonably request to protect, maintain or perfect the security
interests or other rights of the Collateral Agent and the other Secured Parties
contemplated thereby or to make conforming changes in such documents to reflect
the amendments and other transactions contemplated hereby, all of which shall be
in form and substance satisfactory to the Administrative Agent and shall have
been duly authorized, executed and delivered by the parties
thereto. By executing this Fourth Amendment, each Consenting Lender
authorizes the Administrative Agent and/or the Collateral Agent to enter into
any such amendments and reaffirmation agreements;
(d) Legal
Opinions. The Administrative Agent shall have received legal
opinions reasonably satisfactory to it from the Borrower’s counsel with respect
to New York and Nevada law matters;
(e) Projections. The
Administrative Agent shall have received financial projections of the Borrower
and the Loan Parties for the five year period following the Fourth Amendment
Effective Date in form and substance satisfactory to the Administrative
Agent;
(f) Governmental
Approvals. All material governmental and third party approvals
necessary in connection with the transactions contemplated on the Fourth
Amendment Effective Date (including all necessary regulatory and gaming
approvals) shall have been obtained on terms satisfactory to the Administrative
Agent and shall be in full force and effect, and all applicable waiting periods
shall have expired without any action being taken or threatened by any competent
authority that would restrain, prevent or otherwise impose adverse conditions on
the foregoing;
(g) Fourth
Amendment Effective Date Certificate. The Borrower shall have
delivered to the Administrative Agent an executed copy of the Fourth Amendment
Effective Date Certificate in the form attached hereto as Exhibit B (with such
amendments or changes as may be reasonably requested by the Administrative
Agent);
(h) Events
of Default. No Default or Event of Default shall have occurred
and be continuing;
(i) Title
Insurance. The Administrative Agent shall have received such
endorsements, supplements and/or confirmations to the Title Policy, or a
commitment to issue such endorsements, supplements and/or confirmations, as may
be reasonably requested by the Administrative Agent, in each case in form and
substance satisfactory to the Administrative Agent;
and
(j) Other
Documents. The Administrative Agent shall have
received such other documents and evidence as are customary for
transactions of the type contemplated by this Fourth Amendment, as the
Administrative Agent may reasonably request.
This
Fourth Amendment shall be deemed to be effective on the date (the “Fourth
Amendment Effective Date”) on which each of the foregoing conditions is
satisfied and the parties hereto hereby authorize the Administrative Agent to
provide any missing information in the Amended Credit Agreement on the date that
it has determined, in its sole discretion and to its actual knowledge, that each
of such conditions has been satisfied; provided that any such action on the part
of the Administrative Agent shall not be deemed to be a representation to any of
the parties hereto or to any other Person regarding the satisfaction of such
conditions or any other matter. The Borrower and the Wynn Amendment
Parties acknowledge and agree
5
that once
paid, no fee described in Section 3(f) above, nor any part thereof, (i) shall be
refundable under any circumstances or (ii) shall be applied to, or shall be
deemed to reduce, the amount of any other fee or obligation of the Borrower or
the Wynn Amendment Parties under the Credit Agreement or the other Loan
Documents (either prior to, or after, giving effect to this Fourth
Amendment).
7. Amendments
to Other Loan Documents: The parties hereto hereby agree that,
as of the Fourth Amendment Effective Date:
(a) the
definition of “Obligations” set forth in Exhibit A to the Disbursement Agreement
shall be amended by replacing the word “Lender”, where such word appears
therein, with the following: “Secured Party (as defined herein) or any other
Secured Party (as defined in the Bank Credit Agreement)”;
and
(b) the
references to “the Revolving Credit Facility” and “the Revolving Credit
Commitments” in the second paragraph of the Subordinated Intercompany Note shall
be deemed to be references to the Revolving Credit 2 Facility and the Revolving
Credit 2 Commitments, respectively.
8. Acknowledgments. By
executing this Fourth Amendment, each of the Xxxx Amendment Parties (other than
Xxxx Resorts Holdings and Completion Guarantor) (a) consents to this Fourth
Amendment, (b) acknowledges that notwithstanding the execution and delivery
of this Fourth Amendment or any prior amendment, the obligations of each of the
Wynn Amendment Parties under the Guarantee are not impaired or affected (except
as provided for in this Fourth Amendment) and the Guarantee continues in full
force and effect and shall apply to the Obligations as amended hereby and
(c) affirms and ratifies the Guarantee. By executing this Fourth
Amendment, the Borrower and each of the Wynn Amendment Parties (other than
Completion Guarantor) (a) consents to this Fourth Amendment,
(b) acknowledges that notwithstanding the execution and delivery of this
Fourth Amendment or any prior amendment, the obligations of the Borrower and
each of the Wynn Amendment Parties under the Security Documents to which it is a
party (other than the Guarantee) are not impaired or affected (except as
provided for in this Fourth Amendment) and such Security Documents continue in
full force and effect and shall secure the Obligations as amended
hereby and (c) affirms and ratifies such Security Documents. By
executing this Fourth Amendment, Completion Guarantor (a) consents to this
Fourth Amendment, (b) acknowledges that notwithstanding the execution and
delivery of this Fourth Amendment or any prior amendment, the obligations of
Completion Guarantor under the Completion Guaranty are not impaired or affected
(except as provided for in this Fourth Amendment) and the Completion Guaranty
continues in full force and effect and shall apply to the Obligations as amended
hereby and (c) affirms and ratifies the Completion
Guaranty.
9. No
Novation. This Fourth Amendment shall not extinguish the
obligations for the payment of money outstanding under the Credit Agreement or
discharge or release the priority of any Loan Document or any other security
therefor. Nothing herein contained shall be construed as a
substitution or novation of the obligations outstanding under the Credit
Agreement or the instruments, documents and agreements securing the same, which
shall remain in full force and effect. Nothing in this Fourth
Amendment shall be construed as a release or other discharge of the Borrower or
any Wynn Amendment Party from any of its obligations and liabilities under the
Credit Agreement or the other Loan Documents.
10. Miscellaneous.
THIS
FOURTH AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF (OTHER
6
THAN
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW). This Fourth Amendment may be executed in one or more
counterparts and when signed by all of the parties listed below shall constitute
a single binding agreement. Delivery of an executed counterpart
hereof by facsimile transmission shall be effective as delivery of a manually
executed counterpart. Except as amended hereby, all of the provisions
of the Credit Agreement and the other Loan Documents shall remain in full force
and effect except that each reference to a Loan Document amended hereby shall
mean and be a reference to such Loan Document as amended hereby. This
Fourth Amendment shall be deemed a “Loan Document” as defined in the Credit
Agreement. Section 10.12 of the Credit Agreement shall apply to this
Fourth Amendment and all past and future amendments to the Credit Agreement and
other Loan Documents as if expressly set forth
therein.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
7
IN WITNESS WHEREOF, the
parties have caused this Fourth Amendment to be duly executed by their officers
or officers of their sole ultimate members thereunto duly authorized as of the
day and year first above written, to be effective as of the Fourth Amendment
Effective Date.
WYNN
LAS VEGAS, LLC,
a
Nevada limited liability company
|
XXXX
GOLF, LLC,
a
Nevada limited liability company
|
||||||
By:
|
Wynn
Resorts Holdings, LLC,
a
Nevada limited liability company,
its
sole member
|
By:
|
Wynn
Las Vegas, LLC,
a
Nevada limited liability company,
its
sole member
|
||||
By:
|
Wynn
Resorts, Limited,
a
Nevada corporation,
its
sole member
|
By:
|
Xxxx
Resorts Holdings, LLC,
a
Nevada limited liability company, its sole member
|
||||
By: /s/
Xxxx X. Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Chief
Operating Officer
|
By:
|
Wynn
Resorts, Limited,
a
Nevada corporation,
its
sole member
|
|||||
By: /s/
Xxxx X. Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Chief
Operating Officer
|
XXXX
SUNRISE, LLC,
a
Nevada limited liability company
|
WORLD
TRAVEL, LLC,
a
Nevada limited liability company
|
|||||||
By:
|
Xxxx
Las Vegas, LLC,
a
Nevada limited liability company,
its
sole member
|
By:
|
Xxxx
Las Vegas, LLC,
a
Nevada limited liability company,
its
sole member
|
|||||
By:
|
Wynn
Resorts Holdings, LLC,
a
Nevada limited liability company, its sole
member |
By:
|
Xxxx
Resorts Holdings, LLC,
a
Nevada limited liability company, its sole
member |
|||||
|
By:
|
Wynn
Resorts, Limited, a
Nevada corporation, its sole member |
By:
|
Wynn
Resorts, Limited, a Nevada
corporation, its sole member |
||||
By:
/s/
Xxxx X. Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Chief
Operating Officer
|
By:
/s/
Xxxx X. Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Chief
Operating
Officer
|
[Signature
Page to Fourth Amendment
to Xxxx
Las Vegas Amended and Restated Credit Agreement]
LAS
VEGAS JET, LLC,
a
Nevada limited liability company
|
XXXX
SHOW PERFORMERS, LLC,
a
Nevada limited liability company
|
|||||||
By:
|
Xxxx
Las Vegas, LLC,
a
Nevada limited liability company,
its
sole member
|
By:
|
Xxxx
Las Vegas, LLC,
a
Nevada limited liability company,
its
sole member
|
|||||
By:
|
Wynn
Resorts Holdings, LLC,
a
Nevada limited liability company, its sole
member |
By:
|
Xxxx
Resorts Holdings, LLC,
a
Nevada limited liability company, its sole
member |
|||||
By:
|
Wynn
Resorts, Limited, a
Nevada corporation, its sole member |
By:
|
Wynn
Resorts, Limited, a Nevada
corporation, its sole member |
|||||
By:
/s/
Xxxx X. Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Chief
Operating Officer
|
By:
/s/
Xxxx X. Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Chief
Operating Officer
|
KEVYN,
LLC,
a
Nevada limited liability company
|
XXXX
LAS VEGAS CAPITAL CORP.,
a
Nevada corporation
|
|||||||
By:
|
Xxxx
Las Vegas, LLC,
a
Nevada limited liability company,
its
sole member
|
By: /s/
Xxxx X. Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Chief
Operating Officer
|
||||||
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. Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Chief
Operating Officer
|
[Signature
Page to Fourth Amendment
to Xxxx
Las Vegas Amended and Restated Credit Agreement]
XXXX
RESORTS HOLDINGS, LLC,
a
Nevada limited liability company,
|
|||||
By: |
Wynn
Resorts, Limited, a Nevada
corporation, its sole member |
||||
By: /s/
Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx Title: Chief Operating Officer |
XXXX
COMPLETION GUARANTOR, LLC,
a
Nevada limited liability company
|
||||||||
By: |
Xxxx
Las Vegas, LLC,
a
Nevada limited liability company,
its
control manager
|
|||||||
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. Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Chief
Operating Officer
|
||||||||
[Signature
Page to Fourth Amendment
to Xxxx
Las Vegas Amended and Restated Credit Agreement]
DEUTSCHE
BANK TRUST COMPANY
AMERICAS,
as Lender, Issuing Lender and
Swing
Line Lender
By: /s/
Xxxx Xxx Xxxxx
Name: Xxxx
Xxx Xxxxx
Title: Managing
Director
By: /s/
Xxxxxxx Xxxxx
Name: Xxxxxxx
Xxxxx
Title: Managing
Director
[Signature
Page to Fourth Amendment
to Xxxx
Las Vegas Amended and Restated Credit Agreement]
Acknowledged:
DEUTSCHE
BANK TRUST COMPANY
AMERICAS,
as Administrative Agent on
behalf of
the Lenders
By: /s/
Xxxx Xxx Xxxxx
Name: Xxxx
Xxx Xxxxx
Title: Managing
Director
By: /s/
Xxxxxxx Xxxxx
Name: Xxxxxxx
Xxxxx
Title: Managing
Director
DEUTSCHE
BANK TRUST COMPANY
AMERICAS,
as Disbursement Agent
By: /s/
Xxxx Xxx Xxxxx
Name: Xxxx
Xxx Xxxxx
Title: Managing
Director
By: /s/
Xxxxxxx Xxxxx
Name: Xxxxxxx
Xxxxx
Title: Managing
Director
[Signature
Page to Fourth Amendment
to Xxxx
Las Vegas Amended and Restated Credit Agreement]
Exhibit
A
AMENDED
AND RESTATED
CREDIT
AGREEMENT
among
XXXX
LAS VEGAS, LLC,
as
the Borrower,
The
Several Lenders
from
Time to Time Party Hereto,
DEUTSCHE
BANK SECURITIES INC.,
as
Lead Arranger and Joint Book Running Manager,
DEUTSCHE
BANK TRUST COMPANY AMERICAS,
as
Administrative Agent, Issuing Lender and Swing Line Lender,
BANC
OF AMERICA SECURITIES LLC,
as
Lead Arranger and Joint Book Running Manager,
BANK
OF AMERICA, N.A.,
as
Syndication Agent,
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,
SOCIETE
GENERALE,
as
Joint Documentation Agent
and
in
each case as Managing Agents,
BANK
OF SCOTLAND,
HSH
NORDBANK AG,
THE
ROYAL BANK OF SCOTLAND PLC
and
WACHOVIA
BANK
Dated
as of August 15, 2006
TABLE OF
CONTENTS
Page
SECTION
1. DEFINITIONS
|
2
|
||
1.1
|
Defined
Terms
|
2
|
|
1.2
|
Other
Definitional Provisions
|
55
|
|
1.3
|
Certain
Financial Calculations
|
56
|
|
SECTION
2. AMOUNT AND TERMS OF COMMITMENTS
|
57
|
||
2.1
|
Term
B Loan Commitments
|
57
|
|
2.2
|
Scheduled
Amortization of Term B Loans
|
57
|
|
2.3
|
Revolving
Credit Commitments
|
58
|
|
2.4
|
INTENTIONALLY
OMITTED
|
58
|
|
2.5
|
Procedure
for Borrowing
|
58
|
|
2.6
|
Swing
Line Commitment
|
60
|
|
2.7
|
Procedure
for Swing Line Borrowing; Refunding of Swing Line Loans
|
61
|
|
2.8
|
Repayment
of Loans; Evidence of Indebtedness
|
62
|
|
2.9
|
Commitment
Fees, etc.
|
63
|
|
2.10
|
Termination
or Reduction of Revolving Credit Commitments
|
64
|
|
2.11
|
Optional
Prepayments
|
65
|
|
2.12
|
Mandatory
Prepayments and Commitment Reductions
|
65
|
|
2.13
|
Conversion
and Continuation Options
|
68
|
|
2.14
|
Minimum
Amounts and Maximum Number of Eurodollar Tranches
|
69
|
|
2.15
|
Interest
Rates and Payment Dates
|
69
|
|
2.16
|
Computation
of Interest and Fees
|
70
|
|
2.17
|
Inability
to Determine Interest Rate
|
70
|
|
2.18
|
Pro
Rata Treatment and Payments
|
71
|
|
2.19
|
Requirements
of Law
|
73
|
|
2.20
|
Taxes
|
75
|
|
2.21
|
Indemnity
|
77
|
|
2.22
|
Illegality
|
78
|
|
2.23
|
Change
of Lending Office
|
78
|
|
2.24
|
Insurance
Proceeds and Eminent Domain Proceeds
|
78
|
|
2.25
|
Replacement
of Lenders under Certain Circumstances
|
82
|
|
2.26
|
Incremental
Facilities
|
83
|
|
SECTION
3. LETTERS OF CREDIT
|
85
|
||
3.1
|
L/C
Commitment
|
85
|
|
3.2
|
Procedure
for Issuance of Letters of Credit
|
86
|
|
3.3
|
Fees
and Other Charges
|
87
|
|
3.4
|
L/C
Participations
|
87
|
|
3.5
|
Reimbursement
Obligation of the Borrower.
|
88
|
|
3.6
|
Responsibility
of Issuing Lender With Respect to Requests for Drawings and Payments;
Obligations Absolute
|
89
|
|
SECTION
4. REPRESENTATIONS AND WARRANTIES
|
90
|
||
4.1
|
Financial
Condition
|
90
|
i
4.2
|
No
Change
|
91
|
|
4.3
|
Corporate/LLC
Existence; Compliance with Law
|
91
|
|
4.4
|
Power;
Authorization; Enforceable Obligations
|
91
|
|
4.5
|
No
Legal Bar
|
92
|
|
4.6
|
No
Material Litigation
|
92
|
|
4.7
|
No
Default
|
92
|
|
4.8
|
Ownership
of Property; Liens
|
93
|
|
4.9
|
Intellectual
Property
|
93
|
|
4.10
|
Taxes
|
94
|
|
4.11
|
Federal
Regulations.
|
94
|
|
4.12
|
Labor
Matters and Acts of God
|
95
|
|
4.13
|
ERISA
|
95
|
|
4.14
|
Investment
Company Act; Other Regulations
|
95
|
|
4.15
|
Subsidiaries
|
96
|
|
4.16
|
Use
of Proceeds; Letters of Credit
|
96
|
|
4.17
|
Environmental
Matters
|
96
|
|
4.18
|
Accuracy
of Information, etc.
|
97
|
|
4.19
|
Security
Documents
|
98
|
|
4.20
|
Solvency
|
99
|
|
4.21
|
Senior
Indebtedness
|
99
|
|
4.22
|
Regulation
H
|
99
|
|
4.23
|
Insurance
|
99
|
|
4.24
|
Performance
of Agreements; Material Contracts
|
99
|
|
4.25
|
Real
Estate
|
100
|
|
4.26
|
Permits
|
101
|
|
4.27
|
Sufficiency
of Interests
|
101
|
|
4.28
|
Utilities
|
102
|
|
4.29
|
Fiscal
Year
|
102
|
|
4.30
|
Patriot
Act
|
102
|
|
SECTION
5. CONDITIONS PRECEDENT
|
102
|
||
5.1
|
INTENTIONALLY
OMITTED
|
102
|
|
5.2
|
Conditions
to Extensions of Credit Pursuant to Section 2.5(a) or
3.2(a)
|
102
|
|
5.3
|
Conditions
to Extensions of Credit Requested Pursuant to Section 2.5(b) or
3.2(b)
|
102
|
|
5.4
|
Conditions
to Amended and Restated Effective Date
|
103
|
|
SECTION
6. AFFIRMATIVE COVENANTS
|
106
|
||
6.1
|
Financial
Statements
|
106
|
|
6.2
|
Certificates;
Other Information
|
106
|
|
6.3
|
Payment
of Obligations
|
109
|
|
6.4
|
Conduct
of Business and Maintenance of Existence, etc.
|
109
|
|
6.5
|
Maintenance
of Property; Leases; Insurance
|
109
|
|
6.6
|
Inspection
of Property; Books and Records; Discussions
|
111
|
|
6.7
|
INTENTIONALLY
OMITTED
|
111
|
|
6.8
|
Environmental
Laws; Permits
|
111
|
|
6.9
|
Dissolution
of the Completion Guarantor
|
112
|
|
6.10
|
Additional
Collateral, Discharge of Liens, etc.
|
113
|
ii
6.11
|
Use
of Proceeds and Revenues
|
115
|
|
6.12
|
Compliance
with Laws, Project Documents, etc.; Permits
|
116
|
|
6.13
|
Further
Assurances
|
116
|
|
SECTION
7. NEGATIVE COVENANTS
|
117
|
||
7.1
|
Financial
Condition Covenants
|
117
|
|
7.2
|
Limitation
on Indebtedness
|
118
|
|
7.3
|
Limitation
on Liens
|
121
|
|
7.4
|
Limitation
on Fundamental Changes
|
124
|
|
7.5
|
Limitation
on Disposition of Property
|
124
|
|
7.6
|
Limitation
on Restricted Payments
|
129
|
|
7.7
|
Limitation
on Capital Expenditures
|
130
|
|
7.8
|
Limitation
on Investments
|
131
|
|
7.9
|
Limitation
on Optional Payments and Modifications of Governing
Documents
|
133
|
|
7.10
|
Limitation
on Transactions with Affiliates
|
133
|
|
7.11
|
Limitation
on Sales and Leasebacks
|
135
|
|
7.12
|
Limitation
on Changes in Fiscal Periods
|
135
|
|
7.13
|
Limitation
on Negative Pledge Clauses
|
135
|
|
7.14
|
Limitation
on Restrictions on Subsidiary Distributions, etc.
|
136
|
|
7.15
|
Limitation
on Lines of Business
|
136
|
|
7.16
|
Restrictions
on Changes
|
136
|
|
7.17
|
Limitation
on Formation and Acquisition of Subsidiaries and Purchase of Capital
Stock
|
137
|
|
7.18
|
Limitation
on Hedge Agreements
|
137
|
|
7.19
|
Limitation
on Sale or Discount of Receivables
|
137
|
|
7.20
|
Limitation
on Zoning and Contract Changes and Compliance
|
137
|
|
7.21
|
No
Joint Assessment; Separate Lots
|
137
|
|
7.22
|
Restrictions
on Payments of Management Fees
|
138
|
|
7.23
|
INTENTIONALLY
OMITTED
|
138
|
|
7.24
|
Permitted
Activities of Wynn Resorts Holdings
|
138
|
|
7.25
|
Limitation
on Golf Course Land and Golf Course Development
|
138
|
|
7.26
|
Acquisition
of Real Property
|
139
|
|
7.27
|
INTENTIONALLY
OMITTED
|
140
|
|
7.28
|
Golf
Course Lease Termination
|
140
|
|
SECTION
8. EVENTS OF DEFAULT
|
140
|
||
SECTION
9. THE AGENTS; THE ARRANGERs; THE MANAGERS
|
145
|
||
9.1
|
Appointment
|
145
|
|
9.2
|
Delegation
of Duties
|
146
|
|
9.3
|
Exculpatory
Provisions
|
146
|
|
9.4
|
Reliance
|
146
|
|
9.5
|
Notice
of Default
|
147
|
|
9.6
|
Non
Reliance on Agents, Managers, Arrangers, Managing Agents and Other
Lenders
|
147
|
|
9.7
|
Indemnification
|
148
|
|
9.8
|
Arrangers,
Agents, Managing Agents and Managers in Their Individual
Capacities
|
149
|
|
iii
9.9
|
Successor
Agents
|
149
|
|
9.10
|
Authorization
|
150
|
|
9.11
|
The
Arrangers, Managers, Managing Agents, Syndication Agent and Documentation
Agents
|
150
|
|
9.12
|
Withholdings
|
150
|
|
SECTION
10. MISCELLANEOUS
|
151
|
||
10.1
|
Amendments
and Waivers
|
151
|
|
10.2
|
Notices
|
153
|
|
10.3
|
No
Waiver; Cumulative Remedies
|
155
|
|
10.4
|
Survival
of Representations and Warranties
|
155
|
|
10.5
|
Payment
of Expenses; Indemnification
|
156
|
|
10.6
|
Successors
and Assigns; Participations and Assignments
|
157
|
|
10.7
|
Adjustments;
Set off
|
160
|
|
10.8
|
Counterparts
|
161
|
|
10.9
|
Severability
|
161
|
|
10.10
|
Integration
|
161
|
|
10.11
|
GOVERNING
LAW
|
161
|
|
10.12
|
Submission
To Jurisdiction; Waivers
|
162
|
|
10.13
|
Certain
Matters Affecting Lenders
|
162
|
|
10.14
|
Acknowledgments
|
163
|
|
10.15
|
Confidentiality
|
163
|
|
10.16
|
Release
of Collateral and Guarantee Obligations
|
164
|
|
10.17
|
Accounting
Terms and Changes
|
165
|
|
10.18
|
INTENTIONALLY
OMITTED
|
165
|
|
10.19
|
Construction.
|
165
|
|
10.20
|
WAIVERS
OF JURY TRIAL
|
165
|
|
10.21
|
Gaming
Authorities
|
165
|
|
10.22
|
Release
of Golf Course Collateral
|
166
|
|
10.23
|
Binding
Effect; Amendment and Restatement
|
166
|
|
10.24
|
Transfer
of Golf Course Land to the Borrower
|
167
|
|
10.25
|
Third
Party Beneficiaries
|
168
|
|
10.26
|
Patriot
Act
|
168
|
iv
ANNEXES:
|
|
A
|
Pricing
Grid
|
B
|
Lender
Commitments on the Amended and Restated Effective Date
|
C
|
Revolving
Credit Commitments on the Fourth Amendment Effective
Date
|
SCHEDULES:
|
|
1.1
|
Mortgaged
Property
|
4.4
|
Consents,
Authorizations, Filings and Notices
|
4.9(b)
|
Trademarks,
Service Marks and Trade Names
|
4.9(c)
|
Patents
|
4.9(d)
|
Copyrights
|
4.9(e)
|
Intellectual
Property Licenses
|
4.15
|
Subsidiaries
|
4.19(a)-1
|
UCC
Filing Jurisdictions – Collateral
|
4.19(a)-2
|
UCC
Financing Statements to Remain on File
|
4.19(b)
|
Mortgage
Filings Jurisdictions
|
4.19(c)
|
UCC
Filing Jurisdictions - Intellectual Property Collateral
|
4.24
|
Material
Contracts
|
4.25(a)
|
Real
Estate
|
4.25(d)
|
Assessments
|
6.5(d)
|
Insurance
Requirements
|
7.2(d)
|
Existing
Indebtedness
|
7.3(f)
|
Existing
Liens
|
EXHIBITS:
|
|
A
|
Form
of Compliance Certificate
|
B
|
Form
of Reaffirmation Agreement
|
C
|
Form
of Joinder Agreement
|
D
|
Form
of Mortgage
|
E
|
Form
of Assignment and Acceptance
|
F
|
Form
of Indemnity Agreement
|
G-1
|
Form
of Term B Note
|
G-2
|
Form
of Revolving Credit 1 Note
|
G-3
|
Form
of Swing Line Note
|
H
|
Form
of Insurance Consultant Certificate
|
I
|
Form
of Exemption Certificate
|
J
|
INTENTIONALLY
OMITTED
|
K
|
Form
of Amended and Restated Disbursement Agreement
|
L
|
Form
of Fourth Amendment to Disbursement Agreement
|
M
|
Form
of Notice of Borrowing
|
N
|
Form
of Subordination, Non-Disturbance and Attornment
Agreement
|
O
|
Form
of Letter of Credit Request
|
P
|
Form
of First Amendment to
Mortgage
|
v
EXHIBITS:
|
Q
|
Form
of Amended and Restated Effective Date
Certificate
|
vi
This
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August 15, 2006, is entered
into among WYNN LAS VEGAS, LLC, a Nevada limited liability company (the “Borrower”), the
several banks and other financial institutions or entities from time to time
party to this Agreement as lenders, DEUTSCHE BANK SECURITIES INC., as lead
arranger and joint book running manager, DEUTSCHE BANK TRUST COMPANY AMERICAS,
as administrative agent (in such capacity and together with its successors and
assigns, the “Administrative
Agent”), issuing lender and swing line lender, BANC OF AMERICA SECURITIES
LLC, as lead arranger and joint book running manager, BANK OF AMERICA, N.A., as
syndication agent, 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, SOCIETE
GENERALE, as joint documentation agent, and, in each case as managing agent,
BANK OF SCOTLAND, HSH NORDBANK AG, THE ROYAL BANK OF SCOTLAND PLC and WACHOVIA
BANK.
RECITALS
WHEREAS,
the Borrower is developing and owns the Phase I Project and the Phase II Project
(such defined terms and other defined terms used in these Recitals shall have
the meanings given in Section 1.1 of this Agreement);
WHEREAS,
the Lenders have extended the senior secured credit facilities contemplated by
the Original Credit Agreement to the Borrower to provide a portion of the funds
necessary to develop and construct the Project and provide working capital for
the operation of the Project;
WHEREAS,
the Borrower has secured all of its Obligations by granting to the Collateral
Agent on behalf of the Administrative Agent and the other Secured Parties a Lien
on substantially all of its assets as more fully described in this Agreement and
the other Loan Documents;
WHEREAS,
each of the Loan Parties (other than the Borrower) has guarantied the
Obligations of the Borrower and secured all of its Obligations by granting to
the Collateral Agent on behalf of the Administrative Agent and the other Secured
Parties a Lien on substantially all of its assets, in each case as more fully
described in this Agreement and the other Loan Documents;
WHEREAS,
the Borrower and the Lenders amended and restated the Original Credit Agreement
on August 15, 2006, and thereafter amended such Amended and Restated Credit
Agreement pursuant to that certain First Amendment to Amended and Restated
Credit Agreement, dated as of April 9, 2007, that certain Second Amendment to
Amended and Restated Credit Agreement, dated as of October 31, 2007, that
certain Third Amendment to Amended and Restated Credit Agreement, dated as of
September 17, 2008, and that certain Fourth Amendment to Amended and Restated
Credit Agreement, dated as of April 17, 2009 (the “Fourth Amendment”,
and together with each of the other foregoing amendments, the “A&R
Amendments”);
WHEREAS,
pursuant to the terms of the Fourth Amendment, to which this Agreement has been
attached, the Borrower and the Lenders party thereto have set forth herein the
terms and provisions of the Amended and Restated Credit Agreement, as the same
has been amended by the A&R Amendments;
NOW,
THEREFORE, in consideration of the premises and the agreements hereinafter set
forth, the parties hereto hereby agree as follows:
SECTION
1. DEFINITIONS
1.1 Defined
Terms
. As
used in this Agreement, the terms listed in this Section 1.1 shall have the
respective meanings set forth in this Section 1.1.
“Access
Agreement”: the Access Easement Agreement, dated as of the
Closing Date, between Xxxx Golf and the Borrower.
“Account”: any
“Commodity Account,” “Deposit Account” or “Securities Account” (as such terms
are defined in the UCC).
“Additional 2014
Notes”: the Additional Notes (as such term is defined in the
2014 Notes Indenture).
“Additional Entertainment
Facility”: a showroom or entertainment facility adjoining the
Project on the Site (other than any showroom or entertainment facility
contemplated in the Plans and Specifications on the Amended and Restated
Effective Date).
“Additional Material
Contracts”: any Material Contract entered into after the
Amended and Restated Effective Date relating to the development, construction,
maintenance or operation of the Project.
“Adjustment
Date”: as defined in the Pricing Grid.
“Administrative
Agent”: as defined in the preamble hereto.
“Administrative Agent Fee
Letter”: the Administrative Agent Fee Letter, dated as of July
7, 2006, between the Borrower and the Administrative Agent.
“Advances”: as
defined in the Disbursement Agreement.
“Affiliate”: as
applied to any Person, any other Person which, directly or indirectly, is in
control of, is controlled by, or is under common control with, such
Person. For purposes of this definition, “control” (including, with
correlative meanings, the terms “controlling,” “controlled by” and “under common
control with”) as applied to any Person means the power, directly or indirectly,
either to (a) vote 10% or more of the securities having ordinary voting
power for the election of directors (or persons performing similar functions) of
such Person or (b) direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise.
2
“Affiliate
Agreements”: collectively, the Golf Course Lease, the
Management Agreement, the Project Services Agreement, the Access Agreement, the
Aircraft Operating Agreement, the Dealership Lease Agreement and the Wynn IP
Agreement.
“Affiliated
Fund”: means, with respect to any Lender that is a fund that
invests (in whole or in part) in commercial loans, any other fund that invests
(in whole or in part) in commercial loans and is managed by the same investment
advisor as such Lender or by an Affiliate of such investment
advisor.
“Affiliated Overhead
Expenses”: for any period, the reasonable costs and
expenses of, and
actually incurred by, Wynn Resorts and its Wholly Owned Subsidiaries (other than
the Loan Parties) for salary and benefits, office operations, development,
advertising, insurance and other corporate or other overhead, for such period,
calculated on a consolidated basis, after the elimination of intercompany
transactions, and in accordance with GAAP; provided, that
Affiliated Overhead Expenses (a) shall not include any fee, profit or
similar component payable to Wynn Resorts or any other Affiliate of Wynn Resorts
or any Project Costs and (b) shall represent only the payment or reimbursement
of actual costs and expenses incurred by Wynn Resorts and its Wholly Owned
Subsidiaries.
“Agents”: the
collective reference to the Syndication Agent, the Documentation Agents, the
Administrative Agent and, for purposes of Section 9 and 10.5 only, the
Collateral Agent and the Disbursement Agent.
“Aggregate
Exposure”: with respect to any Lender at any time, an amount
equal to the sum of (a) the amount of such Lender’s Term B Loan Commitment
then in effect or, if the Term B Loan Commitments have been terminated, the
amount of such Lender’s Term B Loan Extensions of Credit then outstanding, (b)
the amount of such Lender’s New Term Loan Commitments then in effect or, if the
New Term Loan Commitments have been terminated, the amount of such Lender’s New
Term Loan Extensions of Credit then outstanding, and (c) the amount of such
Lender’s Revolving Credit Commitment then in effect or, if the Revolving Credit
Commitments have been terminated, the amount of such Lender’s Revolving
Extensions of Credit then outstanding.
“Aggregate Exposure
Percentage”: with respect to any Lender at any time, the ratio
(expressed as a percentage) of such Lender’s Aggregate Exposure at such time to
the Aggregate Exposure of all Lenders at such time.
“Agreement”: this
Amended and Restated Credit Agreement.
“Aircraft”: that
certain 1999 Boeing 737-79U Business Jet aircraft bearing manufacturer’s serial
number 29441 and United States Federal Aviation Administration Registration
Number N88WZ, which shall include (i) the airframe (the Aircraft except for the
Engines (hereinafter defined) from time to time installed thereon) together with
any and all Parts (hereinafter defined) incorporated or installed or attached to
such aircraft and all Parts removed from such aircraft until such Parts are
replaced (such airframe, together with any replacement or substitute airframe
and all such Parts, the
3
“Airframe”), (ii) each
of the engines installed on the Aircraft and any replacement engine that may be
substituted for such engine, together, in each case, with any and all Parts
incorporated or installed or attached thereto and any and all Parts removed
therefrom, until such Parts are replaced (each such engine, and replacement or
substitute engine, together with any and all such Parts, the “Engine” and
collectively the “Engines”), (iii) all
appliances, parts, instruments, appurtenances, accessories, furnishings and
other equipment of whatever nature (other than the Engines), that may from time
to time be incorporated or installed in or attached to the Airframe or any
Engine (collectively referred to herein as “Parts”) and (iv) the
proceeds of any of the foregoing.
“Aircraft Operating
Agreement”: that certain Amended and Restated Aircraft
Operating Agreement, dated October 30, 2002, between the Aircraft Trustee and
World Travel.
“Aircraft
Trustee”: Xxxxx Fargo Bank Northwest, National Association, as
trustee under a trust agreement in favor of World Travel with respect to the
Aircraft, and any successor or replacement trustee.
“Allocable
Overhead”: for any period, an amount equal to (a) the amount
of Affiliated Overhead Expenses for such period divided by (b) the number of
gaming and/or hotel projects of Wynn Resorts and its Subsidiaries which were
operating during such period or for which debt and/or equity financing has been
obtained to finance the design, development, construction and/or opening
thereof; provided, that (i)
the Project shall be deemed a single gaming and/or hotel project that is
operating and (ii) amounts allocated to any such project shall be prorated based
on the period within such period that such project was in operation or financing
therefor was obtained.
“Amended and Restated
Disbursement Agreement Effective Date”: October 25, 2007.
“Amended and Restated
Effective Date”: August 15, 2006.
“Amended and Restated
Effective Date Documents”: as defined in Section
5.4(c).
“Applicable Facility
Lenders”: with respect to any Facility, (a) after the
termination of the Term B Loan Commitments, the New Term Loan Commitments with
respect to any Series of New Term Loans or the Revolving Credit Commitments, as
the case may be, Non-Defaulting Lenders holding more than 33⅓% of the Total Term
B Loan Extensions of Credit of Non-Defaulting Lenders, the Total New Term Loan
Extensions of Credit with respect to any Series of New Term Loans of
Non-Defaulting Lenders or the Total Revolving Extensions of Credit of
Non-Defaulting Lenders, as the case may be, or (b) prior to any termination of
the Term B Loan Commitments, the New Term Loan Commitments with respect to any
Series of New Term Loans or the Revolving Credit Commitments, as the case may
be, Non-Defaulting Lenders holding more than 33⅓% of the Total Term B Loan
Commitments (less the aggregate Term B Loan Commitments of Defaulting Lenders),
Total New Term Loan Commitments with
4
respect
to any Series of New Term Loans (less the aggregate of such New Term Loan
Commitments of Defaulting Lenders) or Total Revolving Credit Commitments (less the aggregate
Revolving Credit Commitments of Defaulting Lenders), as the case may
be.
“Applicable
Margin”: for each Type of Loan, the rate per annum set forth
under the relevant column heading below:
Base
Rate
Loans
|
Eurodollar
Loans
|
||||
Revolving
Credit 1 Loans
|
0.625%
|
1.625%
|
|||
Revolving
Credit 2 Loans and Swing Line Loans
|
2.000%
|
3.000%
|
|||
Term
B Loans
|
0.875%
|
1.875%
|
provided, that on and
after the first Adjustment Date occurring after the Initial Phase II Calculation
Date, the Applicable Margin with respect to Revolving Credit 1 Loans will be
determined pursuant to the Pricing Grid.
“Arrangers”: collectively,
Deutsche Bank Securities Inc., in its capacity as a lead arranger, Banc of
America Securities LLC, in its capacity as a lead arranger, SG Americas
Securities, LLC, in its capacity as an arranger, and X.X. Xxxxxx Securities
Inc., in its capacity as an arranger.
“Aruze Corp.”: Aruze Corp., a
Japanese public corporation.
“Aruze
USA”: Aruze USA, Inc., a Nevada corporation.
“Asset
Sale”: any Disposition of Property or series of related
Dispositions of Property by a Loan Party other than (a) the granting of any Lien
permitted by Section 7.3, (b) any Disposition permitted by Section 7.4, (c) any
Disposition permitted by subsections (a), (b), (c), (d), (f), (h), (i), (j),
(k), (l), (m), (n) or (o) of Section 7.5 or (d)
Dispositions for aggregate consideration of less than $250,000 with respect to
any transaction or series of related transactions and less than $5,000,000 in
the aggregate during the term of the Facility (such consideration to be valued
at the initial principal amount thereof in the case of non-cash proceeds
consisting of notes or other debt securities and valued at the fair market value
in the case of other non-cash proceeds).
“Assignee”: as
defined in Section 10.6(c).
“Assignment and
Acceptance”: as defined in Section 10.6(c).
“Assignor”: as
defined in Section 10.6(c).
“Available Revolving Credit 1
Commitment”: as to any Revolving Credit 1 Lender at any time,
an amount equal to the excess, if any, of (a) such Revolving Credit 1
Lender’s Revolving Credit 1 Commitment then in effect over (b) such
Revolving Credit 1 Lender’s Revolving 1 Extensions of Credit then
outstanding.
5
“Available Revolving Credit 2
Commitment”: as to any Revolving Credit 2 Lender at any time,
an amount equal to the excess, if any, of (a) such Revolving Credit 2
Lender’s Revolving Credit 2 Commitment then in effect over (b) such
Revolving Credit 2 Lender’s Revolving 2 Extensions of Credit then outstanding;
provided, that
in calculating any Lender’s Revolving 2 Extensions of Credit for the purpose of
determining such Lender’s (other than the Swing Line Lender) Available Revolving
Credit 2 Commitment pursuant to Section 2.9(b), the aggregate principal amount
of Swing Line Loans then outstanding shall be deemed to be zero.
“Available Revolving Credit
Commitment”: as to any Revolving Credit Lender at any time, an
amount equal to the sum of such Lender’s Available Revolving Credit 1 Commitment
and Available Revolving Credit 2 Commitment.
“Bank Debt
Service”: for any period, (a) all fees payable during such
period to the Administrative Agent, the Issuing Lender, the Swing Line Lender
and the Lenders, (b) interest on Term Loans, Swing Line Loans, Revolving Credit
Loans and, without duplication, interest on any outstanding Reimbursement
Obligations, in each case payable during such period, (c) scheduled Term Loan
principal payments (as reduced to reflect actual payments and prepayments
through the date of such calculation) and payments with respect to the principal
amount of any outstanding Reimbursement Obligations, in each case payable during
such period and (d) net payments, if any, payable during such period pursuant to
Specified Hedge Agreements.
“Bank Proceeds
Account”: as defined in the Disbursement
Agreement.
“Base
Rate”: for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to the greatest of (a) the Prime
Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on
such day plus ½ of 1%, and (c) in the case of Revolving Credit 2 Loans only, the
Eurodollar Rate for a one month Interest Period on such day (or if such day is
not a Business Day, the immediately preceding Business Day) plus 1.00%; provided that, for
the avoidance of doubt, the Eurodollar Rate for any day shall be based on the
Eurodollar Rate for a one month Interest Period determined by the Administrative
Agent at approximately 11:00 a.m., London time, on such day pursuant to the
method described in the definition of “Eurodollar Rate”. Any change
in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective
Rate or the Eurodollar Rate shall be effective as of the opening of business on
the effective day of such change.
“Base Rate
Loans”: Loans for which the applicable rate of interest is
based upon the Base Rate.
“Beneficial
Owner”: as defined in Rule 13d-3 and Rule 13d-5 under the
Exchange Act, except that in calculating the beneficial ownership of any
particular “person” (as that term is used in Section 13(d)(3) of the Exchange
Act), such “person” will be deemed to have beneficial ownership of all
securities that such “person” has the right to acquire by conversion or exercise
of other securities, whether such right is
6
currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition. The term “Beneficially Owned” has a corresponding
meaning.
“Benefited
Lender”: as defined in Section 10.7.
“Board”: the
Board of Governors of the Federal Reserve System of the United States (or any
successor).
“Board of
Directors”: (a) with respect to a corporation, the board of
directors of the corporation; (b) with respect to a partnership, the board of
directors of the general partner of the partnership; (c) with respect to a
limited liability company, the manager or sole member of such limited liability
company; and (d) with respect to any other Person, the board or committee of
such Person serving a similar function.
“Borrower”: as
defined in the preamble hereto.
“Borrower Indemnity
Agreement”: the Indemnity Agreement, dated as of the Closing
Date, by the Borrower in favor of the Administrative Agent.
“Borrower
Mortgage”: the Deed of Trust, Leasehold Deed of Trust,
Assignment of Rents and Leases, Security Agreement and Fixture Filing, dated as
of the Closing Date, made by the Borrower to Nevada Title Company, a Nevada
corporation, as trustee, for the benefit of the Collateral Agent, as amended by
that certain First Amendment to Multiple Deeds of Trust, Leasehold Deed of
Trust, Assignments of Rents and Leases, Security Agreement and Fixture Filings,
dated as of the Amended and Restated Effective Date.
“Borrowing
Date”: any Business Day specified by the Borrower as a date on
which the Borrower requests the relevant Lender(s) to make Loans
hereunder.
“Business
Day”: (a) for all purposes other than as covered by clauses
(b) and (c) below, a day other than a Saturday, Sunday or other day on which
commercial banks in New York City, New York or Las Vegas, Nevada are authorized
or required by law to close, (b) with respect to all notices and determinations
in connection with, and payments of principal and interest on, Eurodollar Loans,
any day which is a Business Day described in clause (a) above and which is also
a day for trading by and between banks in Dollar deposits in the New York interbank eurodollar
market and (c) with respect to all notices and determinations in connection with
Letters of Credit and payments of principal and interest on Reimbursement
Obligations, a day other than a Saturday, Sunday or other day on which
commercial banks in New York City, New York are authorized or required by law to
close.
“Capital
Corp.”: Wynn Las Vegas Capital Corp., a Nevada
corporation.
“Capital
Expenditures”: for any period, with respect to any Person, the
aggregate of all expenditures by such Person and its Subsidiaries for the
acquisition or leasing (pursuant to a capital lease) of fixed or capital assets
(including, without limitation, real property) or additions to equipment
(including replacements, capitalized repairs and
7
improvements
during such period) which should be capitalized under GAAP on a consolidated
balance sheet of such Person and its Subsidiaries; provided, that the
amount of Capital Expenditures in respect of fixed or capital assets or
additions to equipment in any Fiscal Year shall not include (a) the Net Cash
Proceeds received by any such Person from Dispositions of Property pursuant to
Section 7.5(a) and applied to the acquisition of fixed or capital assets and (b)
the Insurance Proceeds and/or Eminent Domain Proceeds received by any such
Person for any casualties to, or Taking of, fixed or capital assets and applied
during such Fiscal Year to the repair or replacement of fixed or capital assets
in accordance with Section 2.24. Notwithstanding the foregoing, (i)
to the extent funded with proceeds of Indebtedness described in
Section 7.2(l) or equity capital contributions from Wynn Resorts (or
another Affiliate to the extent acting as an intermediary for purposes of
contributing equity capital contributions from Wynn Resorts to a Loan Party for
application to Capital Expenditures), any expenditures in furtherance of the
construction of the Additional Entertainment Facility and the Retail Facility
that otherwise would have constituted Capital Expenditures by virtue of the
foregoing and (ii) any Project Costs shall in each case be excluded from this
definition for purposes of Section 7.7 only.
“Capital Lease
Obligations”: as to any Person, the obligations of such Person
to pay rent or other amounts under any lease of (or other arrangement conveying
the right to use) real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as capital leases on
a balance sheet of such Person under GAAP, and, for the purposes of this
Agreement, the amount of such obligations at any time shall be the capitalized
amount thereof at such time determined in accordance with GAAP.
“Capital
Stock”: any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
classes of membership or member’s interests in a limited liability company, any
and all classes of partnership interests in a partnership, any and all
equivalent ownership interests in a Person and any and all warrants, rights or
options to purchase any of the foregoing.
“Carryover
Amount”: as defined in Section 7.7.
“Cash
Equivalents”: (a) United States dollars; (b) securities issued
or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality of the United States government (as long as the
full faith and credit of the United States is pledged in support of those
securities) having maturities of not more than six months from the date of
acquisition; (c) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition, bankers’
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case, with any Lender or with any domestic commercial bank
having capital and surplus in excess of $500,000,000 and a Thomson Bank Watch
Rating of “B” or better; (d) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses
(b) and (c) above entered into with any financial institution meeting
the qualifications specified in clause (c) above; (e) commercial paper
having one of the two highest ratings obtainable from Moody’s or S&P
8
and
in each case maturing within six months after the date of acquisition; (f) money
market funds at least 95% of the assets of which constitute Cash Equivalents of
the kinds described in clauses (a) through (e) of this definition; (g)
to the extent not permitted in clauses (a) through (f) of this definition,
Permitted Securities; and (h) to the extent not included in clauses (a) through
(g) of this definition and for so long as any 2014 Notes remain outstanding,
funds managed or offered by the 2014 Notes Indenture Trustee that invest
exclusively in the securities and instruments described in clauses (a) through
(g) above.
“Change of
Control”: the occurrence of any of the following: (a) the
direct or indirect sale, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions,
of all or substantially all of the properties or assets of the Loan Parties,
taken as a whole, to any “person” (as that term is used in Section 13(d)(3)
of the Exchange Act), other than to Xx. Xxxx or a Related Party of Xx. Xxxx, (b)
the adoption of a plan relating to the liquidation or dissolution of the
Borrower or any successor thereto, (c) the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of which
is that (i) any “person” (as defined in clause (a) above), other than Xx.
Xxxx and any of his Related Parties becomes the Beneficial Owner, directly or
indirectly, of more than 50% of the outstanding Voting Stock of Wynn Resorts,
measured by voting power rather than number of equity interests, (ii) any
“person” (as defined in clause (a) above)(other than Xxxxx Xxxxx, Aruze USA
and Aruze Corp., so long as (A) the Stockholders Agreement, as in effect on
the Closing Date, remains in full force and effect, (B) a majority of the
Board of Directors of Wynn Resorts is constituted of Persons named on any slate
of directors chosen by Xx. Xxxx and Aruze USA pursuant to the Stockholders
Agreement, as in effect on the Closing Date and (C) Xxxxx Xxxxx and his
Related Parties either (1) “control” (as that term is used in Rule 405
under the Securities Act) Aruze Corp. and Aruze USA or (2) otherwise remain
the direct or indirect Beneficial Owners of the Voting Stock of Wynn Resorts
held by Aruze Corp.) becomes the Beneficial Owner, directly or indirectly, of a
greater percentage of the outstanding Voting Stock of Wynn Resorts, measured by
voting power rather than number of equity interests, than is at that time
Beneficially Owned by Xx. Xxxx and his Related Parties as a group, (iii) prior
to December 31, 2007, Xx. Xxxx and his Related Parties as a group own less than
80% of the outstanding Voting Stock of Wynn Resorts owned by such group as of
the Closing Date, or (iv) prior to December 31, 2007 Xx. Xxxx and his Related
Parties as a group own less than 10% of the outstanding Voting Stock of Wynn
Resorts, measured by voting power rather than number of equity interests, (d)
the first day prior to December 31, 2007 on which Xx. Xxxx does not act as
either the Chairman of the Board of Directors of Wynn Resorts or the Chief
Executive Officer of Wynn Resorts, other than (A) as a result of death or
disability or (B) if the Board of Directors of Wynn Resorts, exercising
their fiduciary duties in good faith, removes or fails to re-appoint Xx. Xxxx as
Chairman of the Board of Directors of Wynn Resorts or Chief Executive Officer of
Wynn Resorts, (e) the first day on which a majority of the members of the Board
of Directors of Wynn Resorts are not Continuing Directors, (f) the first day on
which Wynn Resorts ceases to own, directly or indirectly, 100% of the
outstanding Capital Stock of the Borrower or (g) Wynn Resorts consolidates with,
or merges with or into, any Person or sells, assigns, conveys, transfers, leases
or otherwise disposes of all or substantially all of its assets to any Person,
or any Person consolidates
9
with,
or merges with or into, Wynn Resorts, in any such event pursuant to a
transaction in which any of the outstanding voting stock of Wynn Resorts is
converted into or exchanged for cash, securities or other property, other than
any such transaction where the voting stock of Wynn Resorts outstanding
immediately prior to such transaction is converted into or exchanged for voting
stock (other than Disqualified Stock) of the surviving or transferee Person
constituting a majority of the outstanding shares of such voting stock of such
surviving or transferee Person (immediately after giving effect to such
issuance).
“Closing
Date”: December 14, 2004.
“Code”: the
Internal Revenue Code of 1986, as amended from time to time.
“Collateral”: all
Property of the Loan Parties, Xxxx Resorts Holdings or any other Person, now
owned or hereafter acquired, upon which a Lien is purported to be created by any
Security Document.
“Collateral Agency
Agreement”: the Collateral Agency Agreement, dated as of the
Closing Date, among the Collateral Agent, the Nevada Collateral Agent and other
parties from time to time party thereto.
“Collateral
Agent”: Deutsche Bank Trust Company Americas in its capacity
as Collateral Agent under and as defined in the Intercreditor Agreement, any
successor Collateral Agent and any assignee of the foregoing appointed pursuant
to the terms of the Intercreditor Agreement.
“Commitment”: as
to any Lender, the sum of the Term B Loan Commitment, the New Term Loan
Commitment and the Revolving Credit Commitment of such Lender.
“Commonly Controlled
Entity”: an entity, whether or not incorporated, which is
under common control with the Borrower or any other Loan Party within the
meaning of Section 4001 of ERISA or is part of a group that includes such Person
and that is treated as a single employer under Section 414 of the
Code.
“Company Disbursement
Collateral Account Agreement”: as defined in the Disbursement
Agreement.
“Company’s Concentration
Account”: as defined in the Disbursement
Agreement.
“Company’s Funds
Account”: as defined in the Disbursement
Agreement.
“Completion
Guarantor”: Xxxx Completion Guarantor, LLC, a Nevada limited
liability company.
“Completion
Guaranty”: that certain Completion Guaranty, dated as of the
Closing Date, by the Completion Guarantor in favor of the Administrative Agent
and the 2014 Notes Indenture Trustee.
10
“Completion Guaranty
Collateral Account Agreement”: as defined in the Disbursement
Agreement.
“Completion Guaranty Deposit
Account”: as defined in the Disbursement
Agreement.
“Compliance
Certificate”: a certificate duly executed by a Responsible
Officer substantially in the form of Exhibit A hereto.
“Confidential Information
Memorandum”: the Confidential Executive Summary dated July
2006 and furnished to the Lenders.
“Consents”: as
defined in the Disbursement Agreement.
“Consolidated Current
Assets”: at any date, all amounts (other than cash and Cash
Equivalents) which would, in conformity with GAAP, be set forth opposite the
caption “total current assets” (or any like caption) on a consolidated balance
sheet of the Borrower and its Subsidiaries at such date.
“Consolidated Current
Liabilities”: at any date, all amounts that would, in
conformity with GAAP, be set forth opposite the caption “total current
liabilities” (or any like caption) on a consolidated balance sheet of the
Borrower and its Subsidiaries at such date, but excluding (a) the current
portion of any Funded Debt of the Borrower and its Subsidiaries and (b) without
duplication of clause (a) above, all Indebtedness consisting of Revolving Credit
Loans or Swing Line Loans to the extent otherwise included therein.
“Consolidated
EBITDA”: of any Person for any period, Consolidated Net Income
of such Person and its Subsidiaries for such period plus, without duplication
and to the extent included in the calculation of such Consolidated Net Income
for such period, the sum of (a) income tax expense or the Tax Amount
(whether or not paid during such period), (b) Consolidated Interest Expense of
such Person and its Subsidiaries, amortization or write-off of debt discount and
debt issuance costs and commissions, discounts and other fees and charges
(including prepayment penalties and premiums) associated with Indebtedness
(including, in the case of the Borrower and its subsidiaries, the Loans, Letters
of Credit and Hedge Agreements), (c) depreciation and amortization expense, (d)
amortization of intangibles (including, but not limited to, goodwill),
(e) any extraordinary expenses or losses (and, whether or not otherwise
includable as separate items in the statement of such Consolidated Net Income
for such period, losses on sales of assets outside of the ordinary course of
business and pre-opening expenses related to the initial opening of the Phase II
Project) and (f) other non-cash items reducing such Consolidated Net Income
(excluding any such non-cash item (other than accruals or reserves for
Management Fees) to the extent that it represents an accrual or reserve for
potential cash items in any future period or amortization of a prepaid cash item
that was paid in a prior period) and minus, (A) to the extent included in the
calculation of such Consolidated Net Income for such period, the sum of
(i) interest income other than, in the case of any Loan Party, interest
income received in cash or cash equivalents during such period from the Macau
Loan (except to the extent deducted in determining Consolidated
11
Interest
Expense), (ii) any extraordinary income or gains (whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income
for such period, gains on the sales of assets outside of the ordinary course of
business) and (iii) other non-cash items increasing such Consolidated Net Income
for such period (excluding any such non-cash item to the extent it represents
the reversal of an accrual or reserve for potential cash item in any prior
period), and (B) any cash payment of Management Fees to the extent such payments
were not included in the calculation of Consolidated Net Income for such period,
all as determined on a consolidated basis. Any cash equity
contributions made to the Borrower or Net Cash Proceeds of purchases of Capital
Stock (other than Disqualified Stock) of the Borrower, in each case, by Xx.
Xxxx, Wynn Resorts or any of their Affiliates (other than the Borrower or any
other Loan Party) during any fiscal quarter and during a period of fifteen days
following such fiscal quarter and not otherwise applied or allocated for
application toward Project Costs for either the Phase I Project or the Phase II
Project, may at the written election of the Borrower to the Administrative Agent
(such election to be made during the fiscal quarter in which such cash equity
contributions were made or during the fifteen day period following such fiscal
quarter) be included in Consolidated EBITDA for such quarter for purposes of any
calculations made pursuant to Section 7.1 only; provided that the Borrower may
not include such cash equity contributions or proceeds of sales of such Capital
Stock in Consolidated EBITDA, and such cash equity contributions and proceeds of
sales of such Capital Stock shall not be included in Consolidated EBITDA, (i) if
any Default or Event of Default has occurred and is continuing at the time such
cash contribution or sale of such Capital Stock is made (other than in respect
of Section 7.1 for the most recent fiscal quarter of the Borrower absent
application of this provision), (ii) if, at any time, the aggregate amount of
such cash equity contributions and proceeds of sales of such Capital Stock to be
included in Consolidated EBITDA for such quarter exceeds $30,000,000 and the
Borrower has not prepaid Loans and, if applicable, reduced the Revolving Credit
Commitments as and when required by Section 2.12(f), or (iii) in any
event, after the Borrower has elected to include any such cash equity
contributions and/or proceeds of sales of such Capital Stock in Consolidated
EBITDA in accordance with this sentence for three consecutive fiscal quarters
unless, following any such three consecutive fiscal quarters, the Borrower has
thereafter been in compliance with Section 7.1 (without giving affect to any
previous cash contributions included in Consolidated EBITDA in accordance with
this sentence) on at least one Quarterly Date.
“Consolidated Interest
Coverage Ratio”: for any period, the ratio of (a) Consolidated
EBITDA of the Borrower and its Subsidiaries for such period to (b) Consolidated
Interest Expense of the Borrower and its Subsidiaries for such
period.
“Consolidated Interest
Expense”: of any Person for any period, total interest expense
(including that attributable to Capital Lease Obligations in accordance with
GAAP) of such Person and its Subsidiaries for such period and any interest
capitalized during such period, with respect to all outstanding Indebtedness of
such Person and its Subsidiaries (including, without limitation, all
commissions, discounts and other fees and charges owed by such Persons with
respect to letters of credit and bankers’ acceptance financing and net costs of
such Persons under Hedge Agreements in respect of interest rates to the extent
such net costs are allocable to such period in accordance with
GAAP).
12
“Consolidated Leverage
Ratio”: for any period, the ratio of (a) Consolidated
Total Debt on the last day of such period to (b) Consolidated EBITDA of the
Borrower for such period.
“Consolidated
Member”: a corporation, other than the common parent, that is
a member of an affiliated group (as defined in Section 1504 of the Code) of
which Wynn Resorts or any of the Loan Parties is the common parent.
“Consolidated Net
Income”: of any Person for any period, the consolidated net
income (or loss) of such Person and its Subsidiaries for such period, determined
on a consolidated basis in accordance with GAAP and before any reduction in
respect of preferred equity dividends, but giving effect to, without
duplication, any amounts paid or distributed by such Person or its Subsidiaries
as a Tax Amount or Allocable Overhead if and to the same extent that such
amounts would have been included in the calculation of net income if incurred by
such Person or its Subsidiaries directly; provided, that in
calculating Consolidated Net Income of a Person (for purposes of this definition
only, the “Parent”) and its
consolidated Subsidiaries for any period, there shall be excluded in each case
to the extent included in such Consolidated Net Income (a) the income (or
deficit) of any Person accrued prior to the date it becomes a Subsidiary of the
Parent or is merged into or consolidated with the Parent or any of its
Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary
of the Parent) in which the Parent or any of its Subsidiaries has an ownership
interest, except to the extent that any such income is actually received by the
Parent or such Subsidiary in the form of dividends or similar distributions, (c)
the undistributed earnings of any Subsidiary of the Parent to the extent that
the declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of any Contractual
Obligation (other than under any Financing Agreement) or Requirement of Law
applicable to such Subsidiary, (d) to the extent not reflected as a charge in
the statement of such Consolidated Net Income, any Management Fees paid during
such period and (e) the cumulative effect of a change in accounting
principles.
“Consolidated Total
Debt”: at any date, an aggregate amount equal to (a) the
aggregate principal amount of all Indebtedness of the Borrower and its
Subsidiaries at such date less (b) an amount
equal to A plus
B less C (in
each case as defined below), in each case determined on a consolidated basis in
accordance with GAAP.
For purposes of the definition of
Consolidated Total Debt at any date:
A =
|
the
aggregate amount of cash and Cash Equivalents of the Borrower and the
other Loan Parties on such date on deposit in an Account with respect to
which the Secured Parties have a perfected first priority Lien securing
the Obligations pursuant to a Control Agreement (for purposes of
clarification, not to include any amounts on deposit in either of the
Completion Guaranty Deposit Account or the Project Liquidity Reserve
Account);
|
13
B =
|
the
aggregate amount of cash and Cash Equivalents of the Borrower and the
other Loan Parties on such date on deposit in the 2014 Notes Proceeds
Account; and
|
C =
|
to
the extent included in A above, cage cash related to casino operations in
an amount up to $16,000,000 (or from and after the Phase II Opening
Date, $20,000,000).
|
“Consolidated Working
Capital”: at any date, the excess of Consolidated Current
Assets on such date over Consolidated Current Liabilities on such
date.
“Construction
Agreement”: as defined in the Disbursement
Agreement.
“Construction
Consultant”: Inspection & Valuation International, Inc. or
such other construction consultant of recognized national standing appointed by
the Administrative Agent with, unless at the time of such appointment there
exists an Event of Default, the consent of the Borrower (such consent not to be
unreasonably withheld or delayed).
“Continuing
Directors”: as of any date of determination, with respect to
any Person, any member of the Board of Directors of such Person who (a) was a
member of such board of directors on the Closing Date or (b) was nominated for
election or elected to such Board of Directors with the approval of a majority
of the Continuing Directors who were members of such board at the time of such
nomination or election.
“Contractual
Obligation”: as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its Property is
bound.
“Control
Agreements”: collectively, (a) the Completion Guaranty
Collateral Account Agreement, (b) the Company Disbursement Collateral Account
Agreement, (c) the Local Company Collateral Account Agreement(s) and (d)
each control agreement executed and delivered by any Loan Party from time to
time pursuant to the Security Agreement, substantially in the form of
Exhibit C, Exhibit D or Exhibit E, as the case may be,
thereto.
“Dealership Lease
Agreement”: that certain Lease Agreement, dated as of
January 13, 2005, between the Borrower, as lessor, and PW Automotive,
LLC, an Affiliate of the Borrower, as lessee.
“Default”: the
occurrence of any of the events specified in Section 8, whether or not any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
“Defaulting
Lender”: at any time, (a) any Lender with respect to which a
Lender Default is in effect, (b) any Lender that is the subject (as a debtor) of
any action or proceeding (i) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an
14
order
for relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (ii) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial part
of its assets, (c) any Lender that shall make a general assignment for the
benefit of its creditors or (d) any Lender that shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they
become due.
“Derivatives
Counterparty”: as defined in Section 7.6.
“Disbursement
Account”: as defined in the Disbursement
Agreement.
“Disbursement
Agent”: Deutsche Bank Trust Company Americas, in its capacity
as Disbursement Agent under the Disbursement Agreement, and any successor
Disbursement Agent appointed pursuant to the terms of the Disbursement
Agreement.
“Disbursement
Agreement”: the Master Disbursement Agreement dated
as of the Closing Date, among the Borrower, the Administrative Agent, the 2014
Notes Indenture Trustee and the Disbursement Agent, as amended and restated by
that certain Amended and Restated Master Disbursement Agreement, dated as of
October 25, 2007, and as further amended by that certain First Amendment to
Amended and Restated Master Disbursement Agreement, dated as of October 31,
2007, and that certain Second Amendment to Amended and Restated Master
Disbursement Agreement, dated as of November 6, 2007.
“Disbursement Agreement Event
of Default”: an “Event of Default” as defined in the
Disbursement Agreement.
“Disposition”: with
respect to any Property, any sale, lease, assignment, conveyance, transfer or
other disposition thereof and, in the case of Dispositions of the Golf Course
Land and the Home Site Land permitted under Sections 7.5(k) and 7.5(l),
respectively, the transfer of the Golf Course Land and the Home Site Land to
Wynn Resorts (or any other parent entity of the Loan Parties) pursuant to a
dividend or other Restricted Payment; and the terms “Dispose” and “Disposed of” shall
have correlative meanings. Notwithstanding the foregoing, the
transfer by a Loan Party of water rights from one permit to another permit held
by such Loan Party or held by another Loan Party shall in no event be considered
a “Disposition” for the purposes of the Loan Documents.
“Disqualified
Stock”: any Capital Stock of any Loan Party that any Loan
Party is or, upon the passage of time or the occurrence of any event, may become
obligated to redeem, purchase, retire, defease or otherwise make any payment in
respect of (whether by its terms or by the terms of any security into which it
is convertible, or for which it is exchangeable, in each case at the option of
the holder of the Capital Stock), whether pursuant to a sinking fund obligation
or otherwise, on or prior to the date that is 91 days after the Scheduled
Term B Loan Termination Date. Notwithstanding the preceding
15
sentence,
any Capital Stock will not constitute Disqualified Stock solely because it is
required to be redeemed under applicable Nevada Gaming Laws.
“Documentation
Agents”: collectively, JPMorgan Chase Bank, N.A., in its
capacity as a joint documentation agent, and Societe Generale, in its capacity
as a joint documentation agent.
“Dollars” and “$”: dollars
in lawful currency of the United States of America.
“Domestic
Subsidiary”: any Subsidiary of the Borrower organized under
the laws of any jurisdiction within the United States of America.
“ECF
Percentage”: with respect to any Fiscal Year, a percentage
determined by the Consolidated Leverage Ratio for the four consecutive fiscal
quarter period ending on the last day of such Fiscal Year as set forth
below:
Consolidated Leverage
Ratio
|
ECF
Percentage
|
||
x
> 3.5:1
|
50%
|
||
x
<
3.5:1
|
0%
|
“Eligible
Assignee”: (a) (i) a commercial bank organized under
the laws of the United States or any state thereof; (ii) a savings and loan
association or savings bank organized under the laws of the United States or any
state thereof; (iii) a commercial bank organized under the laws of any other
country or a political subdivision thereof; provided, that (x)
such bank is acting through a branch or agency located in the United States or
(y) such bank is organized under the laws of a country that is a member of the
Organization for Economic Cooperation and Development or a political subdivision
of such country; and (iv) any other entity which is an “accredited investor” (as
defined in Regulation D under the Securities Act) which extends credit or buys
loans as one of its businesses, including insurance companies, mutual funds and
lease financing companies; (b) for purposes of Sections 10.13(a), 2.25 and 2.26,
any Lender or Affiliate or Affiliated Fund of any Lender (provided, that if any
funding obligations are assigned to an Affiliate of a Lender or Affiliated Fund,
such Affiliate or Affiliated Fund, as applicable, shall have demonstrable
resources to comply with such obligations); provided, that
neither an Affiliate of the Borrower nor any Person which has been denied an
approval or a license, or otherwise found unsuitable, under the Nevada Gaming
Laws applicable to the Lenders shall be an Eligible Assignee; and provided, further that so long
as no Event of Default shall have occurred and be continuing, no (i) Person that
owns or operates a casino located in the State of Nevada (or is an Affiliate of
such a Person) (provided, that a
passive investment constituting less than 20% of the common stock of any such
casino shall not constitute ownership thereof for the purposes of this
definition) or (ii) Person that owns or operates a convention, trade show or
exhibition facility in Las Vegas, Nevada or Xxxxx County, Nevada (or an
Affiliate of such a Person) (provided, that a
16
passive
investment constituting less than 20% of the common stock of any such convention
or trade show facility shall not constitute ownership for the purpose of this
definition), shall be an Eligible Assignee; and (c) for purposes of any
Permitted Loan Repurchase, the Borrower.
“Eminent Domain
Proceeds”: all cash and cash equivalents received in respect
of any Event of Eminent Domain relating to the Project net of (a) all
direct costs of recovery of such Eminent Domain Proceeds (including legal,
accounting, appraisal and insurance adjuster fees and expenses),
(b) amounts required to be applied to the repayment of Indebtedness secured
by a Lien (including any penalty, premium or make-whole amounts related thereto)
expressly permitted hereunder on any asset which is the subject of the Event of
Eminent Domain to which such Eminent Domain Proceeds relate (other than any Lien
pursuant to a Security Document or any other First Lien Security Document or any
Second Lien Security Document) and (c) all taxes paid or reasonably
estimated to be payable as a result thereof (after taking into account any tax
credits or deductions and any tax sharing arrangements, in each case reducing
the amount of taxes so paid or estimated to be payable).
“Environmental
Claim”: any investigation, notice, notice of violation, claim,
action, suit, proceeding, demand, abatement order or other order or directive
(conditional or otherwise), by any governmental authority or any other Person,
arising (a) pursuant to or in connection with any actual or alleged violation of
any Environmental Law, (b) in connection with any Hazardous Substances or any
actual or alleged Hazardous Materials Activity, or (c) in connection with any
actual or alleged damage, injury, threat or harm to health, natural resources or
the environment.
“Environmental
Laws”: any and all laws, rules, orders, regulations, statutes,
ordinances, guidelines, codes, decrees, or other legally enforceable
requirements (including, without limitation, common law) of any international
authority, foreign government, the United States, or any state, local, municipal
or other Governmental Authority, regulating, relating to or imposing liability
or standards of conduct concerning protection of the environment or
of human health, or employee health, as has been, is now, or may at any time
hereafter be, in effect, including, without limitation,
(a) the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended (42 U.S.C. Section 9601 et seq.) (“CERCLA”);
(b) the
Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.) (“Clean Water Act” or
“CWA”);
(c) the
Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) (“RCRA”);
(d) the
Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et seq.) (“AEA”);
(e) the
Clean Air Act (42 U.S.C. Section 7401 et seq.);
17
(f) the
Emergency Planning and Community Right-to-Know Act (42 U.S.C. Section 11001
et seq.);
(g) the
Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 136
et seq.) (“FIFRA”);
(h) the
Oil Pollution Act of 1990 (P.L. 101-380, 32 U.S.C. 2702 et seq.);
(i) the
Safe Drinking Water Act (42 U.S.C. Sections 300f et seq.) (“SDWA”);
(j) the
Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. Sections 1201
et seq.);
(k) the
Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.) (“TSCA”);
(l) the
Hazardous Materials Transportation Authorization Act (49 U.S.C.
Section 5101 et
seq.);
(m) the
Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C. Section 7901
et seq.) (“UMTRCA”);
(n) the
Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.) (“OSHA”) as it relates
solely to exposure to Hazardous Substances;
(o) the
Nevada Hazardous Materials law (NRS Chapter 459);
(p) the
Nevada Collection and Disposal of Solid Waste/Sewage law (NRS Section 444.440
et seq.);
(q) the
Nevada Water Controls/Pollution law (NRS Chapter 445A);
(r) the
Nevada Air Pollution law (NRS Chapter 445B);
(s) the
Nevada Cleanup of Discharged Petroleum law (NRS 590.700 to 590.920,
inclusive);
(t) the
Nevada Control of Asbestos law (NRS 618.750 to 618.850);
(u) the
Nevada Appropriation of Public Waters law (NRS 533.324 to 533.435,
inclusive);
(v) the
Nevada Artificial Water Body Development Permit law (NRS 502.390);
18
(w) the
Nevada Environmental Requirements Law (NRS 445C.010 to NRS 445C.120,
inclusive);
(x) the
Nevada Occupational Safety and Health Act (NRS 618.005 et seq, inclusive)(as it
relates solely to exposure to Hazardous Substances);
(y) the
Laws Regarding the Authority of Nevada State Fire Xxxxxxxx Division (NRS 477.010
to 477.250, inclusive);
(z) the
Uniform Fire Code, as now or hereafter adopted in the State of
Nevada;
(aa) the
Nevada Protection of Endangered Species, Endangered Wildlife Permit (NRS
503.585) and Endangered Flora Permit law (NRS 527.270); and
(bb) all
other Federal, state and local Requirements of Law which govern Hazardous
Substances, and the regulations adopted and publications promulgated pursuant to
all such foregoing laws.
“Environmental
Matter”: any:
(a) release,
emission, entry or introduction into the air including, without limitation, the
air within buildings and other natural or man-made structures above
ground;
(b) discharge,
release or entry into water including, without limitation, into any river,
watercourse, lake, or pond (whether natural or artificial or above ground or
which joins or flows into any such water outlet above ground) or reservoir, or
the surface of the riverbed or of other land supporting such waters, ground
waters, sewer or the sea;
(c) deposit,
disposal, keeping, treatment, importation, exportation, production,
transportation, handling, processing, carrying, manufacture, collection, sorting
or presence of any Hazardous Substance;
(d) nuisance,
noise, defective premises, health and safety at work, industrial illness,
industrial injury due to environmental factors, environmental health problems
(including, without limitation, asbestosis or any other illness or injury caused
by exposure to asbestos) or genetically modified organisms;
(e) conservation,
preservation or protection of the natural or man made environment or any living
organisms supported by the natural or man made environment; or
19
(f) other
matter howsoever directly affecting the environment or any aspect of
it.
“Environmental
Permits”: any and all permits, licenses, approvals,
registrations, notifications, exemptions and any other authorization required
under any Environmental Law.
“ERISA”: the
Employee Retirement Income Security Act of 1974, as amended from time to
time.
“Eurocurrency Reserve
Requirements”: for any day as applied to a Eurodollar Loan,
the then stated maximum rate of all reserve requirements (including, without
limitation, any marginal, emergency, supplemental, special or other reserves
under any regulations of the Board or other Governmental Authority having
jurisdiction with respect thereto or otherwise required by applicable law)
applicable to any member bank of the Federal Reserve System in respect of
eurocurrency funding or liabilities as defined in Regulation D (or any successor
category of liabilities under Regulation D).
“Eurodollar
Loans”: Loans the rate of interest applicable to which is
based upon the Eurodollar Rate.
“Eurodollar
Rate”: with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) equal to (a) the rate per annum
determined by the Administrative Agent at approximately 11:00 A.M. (London time)
on the date that is two Business Days prior to the commencement of such Interest
Period by reference to the rate for eurodollar deposits which appears on the
page of the Telerate screen that displays an average British Bankers Association
Interest Settlement Rate (such page currently being page number 3740 or page
3750 of the Telerate screen) for a period equal to such Interest Period (provided that, to the
extent that an interest rate is not ascertainable pursuant to the foregoing
provisions of this clause (a), the rate determined pursuant to this clause (a)
shall be the offered quotation to first-class banks in the New York interbank
Eurodollar market by the Administrative Agent for Dollar deposits of amounts in
immediately available funds comparable to the outstanding principal amount of
such Eurodollar Loan of the Administrative Agent (in its capacity as a Lender)
with maturities comparable to the Interest Period applicable to such Eurodollar
Loan as of 10:00 A.M. (New York time) on the date that is two Business Days
prior to the commencement of such Interest Period), divided by (b) a percentage
equal to 100% minus the Eurocurrency Reserve Requirements.
“Eurodollar
Tranche”: the collective reference to Eurodollar Loans for
which the then current Interest Periods begin on the same date and end on the
same later date (whether or not such Loans shall originally have been made on
the same day).
“Event of
Default”: the occurrence of any of the events specified in
Section 8, provided that all
requirements for the giving of notice and the lapse of time have been
satisfied.
20
“Event of Eminent
Domain”: with respect to any Property, (a) any compulsory
transfer or taking by condemnation, seizure, eminent domain or exercise of a
similar power, or transfer under threat of such compulsory transfer or taking or
confiscation of such Property or the requisition of the use of such Property, by
any agency, department, authority, commission, board, instrumentality or
political subdivision of any state, the United States or another Governmental
Authority having jurisdiction or (b) any settlement in lieu of clause (a)
above.
“Event of
Loss”: as defined in the Disbursement Agreement.
“Excess Cash
Flow”: for any Fiscal Year, the excess, if any, of
(a) the sum, without duplication, of (i) Consolidated Net Income of
the Loan Parties for such Fiscal Year, (ii) an amount equal to the amount
of all non-cash charges (including depreciation and amortization charges)
deducted in arriving at such Consolidated Net Income, (iii) decreases in
Consolidated Working Capital of the Loan Parties for such Fiscal Year, (iv) an
amount equal to the aggregate net non-cash loss on the Disposition of Property
by the Loan Parties during such Fiscal Year (other than sales of inventory in
the ordinary course of business), to the extent deducted in arriving at such
Consolidated Net Income and (v) the net increase during such Fiscal Year (if
any) in deferred tax accounts of the Loan Parties over (b) the
sum, without duplication, of (i) an amount equal to the amount of all non-cash
credits included in arriving at such Consolidated Net Income, (ii) the aggregate
amount actually paid by the Loan Parties in cash during such Fiscal Year on
account of Capital Expenditures excluding the principal amount of Indebtedness
incurred in connection with such expenditures and any such expenditures financed
with the proceeds of any Reinvestment Deferred Amount or capital equity
contributions received directly or indirectly from Wynn Resorts, (iii) with
respect to the first Fiscal Year for which Excess Cash Flow is determined in
accordance with Section 2.12(d), the aggregate amount of Project Costs
anticipated to be paid by the Loan Parties in the following Fiscal Year
excluding the principal amount of Indebtedness incurred or anticipated to be
incurred in connection with such expenditures and any such expenditures financed
or anticipated to be financed with capital equity contributions received or
anticipated to be received directly or indirectly from Wynn Resorts; provided that any
Project Costs subtracted in the calculation of Excess Cash Flow pursuant to this
clause (iii) shall not be deemed “Capital Expenditures” for purposes of the
definition of Excess Cash Flow in the Fiscal Year actually paid, (iv) the
aggregate amount of all prepayments of Revolving Credit Loans and Swing Line
Loans during such Fiscal Year to the extent accompanying permanent optional
reductions of the Revolving Credit Commitments (which, for the avoidance of
doubt, shall not include reductions of the Revolving Credit Commitments made
pursuant to Section 3(c) of the Fourth Amendment or Section 2.12(f) of this
Agreement) and all optional prepayments of the Term Loans and other Funded Debt
of the Loan Parties (in the event consisting of revolving credit facilities, to
the extent accompanied by permanent optional reductions of the related revolving
commitments in the amount of any such prepayments) during such Fiscal Year, (v)
the aggregate amount of the purchase prices paid pursuant to Permitted Loan
Repurchases and Permitted Notes Repurchases by the Loan Parties during such
Fiscal Year, (vi) the aggregate amount of all regularly scheduled principal
payments of Funded Debt (including, without limitation, regularly scheduled
principal payments of the Term Loans and, to the extent required
21
under
Section 2.12(e), principal payments of Revolving Credit Loans and Swing Line
Loans) of the Loan Parties made during such Fiscal Year (other than (A) in
respect of any revolving credit facility to the extent there is not an
equivalent permanent reduction in commitments thereunder such that after giving
effect to such commitment reduction the applicable Loan Party, as the case may
be, would not be able to reborrow all or any of the amount so prepaid and (B)
prepayments of Loans made pursuant to Section 3(b) or 6(b) of the Fourth
Amendment), (vii) increases in Consolidated Working Capital of the Loan Parties
for such Fiscal Year, (viii) an amount equal to the aggregate net non-cash gain
on the Disposition of Property by the Loan Parties during such Fiscal Year
(other than sales of inventory in the ordinary course of business), to the
extent included in arriving at such Consolidated Net Income, (ix) the net
decrease during such Fiscal Year (if any) in deferred tax accounts of the Loan
Parties and (x) the aggregate amount of (A) any mandatory prepayments of Funded
Debt during such Fiscal Year (including the Term Loans or the Revolving Credit
Loans pursuant to Section 2.12(b) but, in any case, other than in respect of any
revolving credit facility to the extent there is not an equivalent permanent
reduction in commitments thereunder such that after giving effect to such
commitment reduction the applicable Loan Party, as the case may be, would not be
able to reborrow all or any of the amount so prepaid) with Net Cash Proceeds of
Asset Sales and (B) any Reinvestment Deferred Amounts paid on the account of
Capital Expenditures during such Fiscal Year, in each case to the extent such
Net Cash Proceeds or Reinvestment Deferred Amounts are included in arriving at
such Consolidated Net Income.
“Excess Cash Flow Application
Date”: as defined in Section 2.12(d).
“Exchange
Act”: the Securities Exchange Act of 1934, as
amended.
“Excluded
Assets”: as defined in the Security Agreement.
“Excluded
Taxes”: taxes imposed on, or measured by, the net profits, net
income or gross receipts (including franchise taxes imposed in lieu of any such
taxes) of any Arranger, any Agent, any Manager or any Lender as a result of a
present or former connection between such Arranger, such Agent, such Manager or
such Lender and the jurisdiction of the Governmental Authority imposing such tax
or any political subdivision or taxing authority thereof or therein (other than
any such connection arising solely from such Arranger’s, such Agent’s, such
Manager’s or such Lender’s having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document).
“Existing
Stockholders”: collectively, Xx. Xxxx, Aruze USA, Inc., a
Nevada corporation, Baron Asset Fund, a Massachusetts business trust, and the
Xxxxxxx X. Xxxx Family Trust and, in each case, any Affiliates
thereof.
“Facility”: collectively,
each of (a) the Term B Loan Facility, (b) each New Term Loan Facility related to
a Series of New Term Loans and (c) the Revolving Credit Facility.
22
“Facility Fee
Letter”: the Credit Facilities Fee Letter, dated July 7, 2006,
among the Borrower, Deutsche Bank Securities Inc. and Banc of America Securities
LLC.
“Facility Proportionate
Share”: as of any date the proportion that (a) the Total
Extensions of Credit on such date bears to (b) the aggregate principal amount of
all First Lien Secured Obligations on such date; provided that, except
in the case where the Facility Proportionate Share of any Insurance Proceeds
and/or Eminent Domain Proceeds exceeds $100,000,000, in the event the Facility
Proportionate Share of any amount is in excess of the Total Term Loan Extensions
of Credit at such time, the Facility Proportionate Share of such amount shall
equal the Total Term Loan Extensions of Credit at such time.
“Federal Funds Effective
Rate”: for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it.
“Final Completion
Date”: as defined in the Disbursement Agreement.
“Financing
Agreements”: collectively, this Agreement and the other Loan
Documents, any other agreements relating to the First Lien Secured Obligations
and any agreements relating to the Second Lien Secured Obligations and any
agreements relating to the Senior Unsecured Debt and including, in each case,
any agreements with respect to Permitted Refinancing Indebtedness.
“First Lien Secured
Obligations”: as defined in the Intercreditor
Agreement.
“First Lien Security
Document”: as defined in the Intercreditor
Agreement.
“Fiscal
Year”: the fiscal year of the Borrower and the other Loan
Parties ending on December 31 of each calendar year.
“Former
Lender”: as defined in Section 10.13(a).
“Fourth
Amendment”: as defined in the recitals hereto.
“Fourth Amendment Effective
Date”: April 17, 2009, the date on which the Fourth Amendment
became effective in accordance with its terms.
“Funded
Debt”: as to any Person, all Indebtedness of such Person of
the types described in clauses (a) through (e) of the definition of
“Indebtedness” in this Section.
“Funding
Account”: any Account with respect to which the Secured
Parties have a perfected first priority Lien (subject only to Permitted Liens)
securing the Obligations pursuant to a Control Agreement; provided, that in the
case of the use of this definition in
23
Section
2.24, such Funding Account shall be a segregated account established to hold and
disburse the relevant Insurance Proceeds and/or Eminent Domain Proceeds
only.
“Funding
Office”: the office specified from time to time by the
Administrative Agent as its funding office by notice to the
Lenders.
“GAAP”: subject
to the limitations on the application thereof set forth in Section 10.17,
generally accepted accounting principles in the United States of America as in
effect from time to time as set forth in the opinions and pronouncements of the
Accounting Principals Board and the American Institute of Certified Public
Accountants and the statements and pronouncements of the Financial Accounting
Standards Board, or in such other statements by such other entity as may be in
general use by significant segments of the accounting profession.
“Gaming
Facility”: any building or other structure used or expected to
be used to enclose space in which a gaming operation is conducted and
(a) is wholly owned by a Loan Party or (b) any portion or aspect of
which is managed or used, or expected to be managed or used, by a Loan
Party.
“Gaming
Reserves”: any mandatory gaming security reserves or other
reserves required under applicable Nevada Gaming Laws or by directive of the
Nevada Gaming Authorities.
“Golf
Course”: as defined in the Disbursement
Agreement.
“Golf Course
Collateral”: collectively, (a) the Golf Course Land, (b) any
other Property owned by Xxxx Golf included as Collateral and (c) all Capital
Stock of Xxxx Golf pledged as Collateral.
“Golf Course
Land”: as defined in the Disbursement
Agreement. The Golf Course Land includes (a) the Xxxx Home Site Land
until such time (if ever) as the Xxxx Home Site Land has been Disposed of in
accordance with Section 7.5(j) and (b) the Home Site Land until such time (if
ever) as the Home Site Land has been Disposed of in accordance with Section
7.5(l).
“Golf Course
Lease”: that certain Golf Course Lease, dated as of the
Closing Date, by and between Xxxx Golf, on the one hand, as lessor, and the
Borrower, on the other hand, as lessee.
“Governing
Documents”: collectively, as to any Person, the articles or
certificate of incorporation and bylaws, any shareholders agreement, articles of
organization or certificate of formation, limited liability company agreement,
operating agreement, partnership agreement or other formation or constituent
documents of such Person.
“Governmental
Authority”: any national, state or local government (whether
domestic or foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, public or statutory instrumentality,
authority, body, agency, bureau or entity, (including the Nevada Gaming
Authorities, any zoning authority, the
24
FDIC,
the Comptroller of the Currency or the Federal Reserve Board, any central bank
or any comparable authority), any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
or any arbitrator with authority to bind a party at law.
“Guarantee”: the
Guarantee dated as of the Closing Date, executed by each Loan Party (other than
the Borrower) in favor of the Administrative Agent.
“Guarantee
Obligation”: as to any Person (the “guaranteeing
person”), any obligation of (a) the guaranteeing person or
(b) another Person (including, without limitation, any bank under any
letter of credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness or other obligations
(the “primary
obligations”) of any other third Person (the “primary obligor”) in
any manner, whether directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any Property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase Property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation, or (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount
of any Guarantee Obligation of any guaranteeing person shall be deemed to be the
lower of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the
maximum amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person’s maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.
“Guarantors”: the
collective reference to each of the Loan Parties, other than the
Borrower.
“Hazardous Materials
Activity”: any past, current, proposed or threatened activity,
event or occurrence involving any Hazardous Substances, including the use,
manufacture, possession, storage, holding, presence, existence, location,
Release, threatened Release, discharge, placement, generation, transportation,
processing, construction, treatment, abatement, removal, remediation, disposal,
disposition or handling of any Hazardous Substances, and any corrective action
or response action with respect to any of the foregoing.
25
“Hazardous
Substances”: (statutory acronyms and abbreviations having the
meaning given them in the definition of “Environmental Laws”) substances defined
as “hazardous substances,” “pollutants” or “contaminants” in Section 101 of
the CERCLA; those substances defined as “hazardous waste” by the RCRA; those
substances designated as a “hazardous substance” pursuant to Section 311 of
the CWA; those substances regulated as a hazardous chemical substance or mixture
or as an imminently hazardous chemical substance or mixture pursuant to Sections 6 or
7 of the TSCA;
those substances defined as “contaminants” by Section 1401 of
the SDWA, if present in excess of permissible levels; those substances regulated
by the Oil Pollution Act; those substances defined as a pesticide pursuant to
Section 2(u) of
the FIFRA; those substances defined as a source, special nuclear or by-product
material by Section 11 of
the AEA; those substances defined as “residual radioactive material” by Section 101 of
the UMTRCA; those substances defined as “toxic materials” or “harmful physical
agents” pursuant to Section 6 of the
OSHA); those substances defined as hazardous wastes in 40 C.F.R. Part 261.3;
those substances defined as hazardous waste constituents in 40
C.F.R. Part 260.10, specifically including Appendix VII and VIII of
Subpart D of 40 C.F.R. Part 261; those substances designated as hazardous
substances in 40 C.F.R. Parts 116.4 and 302.4; those substances defined as
hazardous substances or hazardous materials in 49 C.F.R. Part 171.8; those
substances regulated as hazardous materials, hazardous substances, or toxic
substances in any other Environmental Laws, and in the regulations adopted and
publications promulgated pursuant to said laws, whether or not such regulations
or publications are specifically referenced herein.
“Hedge
Agreements”: all interest rate swaps, caps or collar
agreements or similar arrangements entered into by a Loan Party providing for
protection against fluctuations in interest rates or currency exchange rates or
the exchange of nominal interest obligations, either generally or under specific
contingencies.
“Home Site
Land”: a tract or tracts of land not greater than 20 acres
located on the Golf Course Land where residential and other non-gaming related
developments may, after Disposition of the Home Site Land in accordance with
Section 7.5(l), be built.
“In
Balance”: as defined in the Disbursement
Agreement.
“Increased Amount
Date”: as defined in Section 2.26(a).
“Indebtedness”: of
any Person at any date, without duplication, (a) all indebtedness of such
Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of Property or services (other than trade payables
incurred in the ordinary course of such Person’s business (which shall include
trade or other payables incurred in connection with the construction of the
Phase II Project that are payable within 120 days of incurrence)), (c) all
obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to Property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such Property), (e) all Capital Lease Obligations or Synthetic Lease
Obligations of such
26
Person,
(f) all obligations of such Person, contingent or otherwise, as an account party
under acceptance, letter of credit, performance bonds or similar facilities, (g)
all obligations of such Person, contingent or otherwise, to purchase, redeem,
retire or otherwise acquire for value any Capital Stock of such Person where
such obligation is required within 180 days of the Scheduled Term B Loan
Termination Date, valued in the case of preferred Capital Stock at liquidation
value, (h) all Guarantee Obligations of such Person in respect of obligations of
the kind referred to in clauses (a) through (g) above; (i) all obligations of
the kind referred to in clauses (a) through (h) above secured by (or for which
the holder of such obligation has an existing right, contingent or otherwise, to
be secured by) any Lien on Property (including, without limitation, accounts and
contract rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligation and (j) for the purposes of
Section 8(e) only, all obligations of such Person in respect of Hedge
Agreements.
“Indemnified
Liabilities”: as defined in Section 10.5.
“Indemnitee”: as
defined in Section 10.5.
“Indemnity
Agreements”: collectively, the Borrower Indemnity Agreement,
the Xxxx Golf Indemnity Agreement, the Wynn Sunrise Indemnity Agreement and each
of the other Indemnity Agreements executed by a Loan Party with respect to its
Mortgaged Properties in favor of the Administrative Agent substantially in the
form of Exhibit F hereto.
“Initial Lending Institution
Provisions”: Section 2.24 and the definition of “Subordinated
Debt”.
“Initial Lending
Institutions”: collectively, Deutsche Bank Trust Company
Americas, Bank of America, N.A., Societe Generale and JPMorgan Chase Bank,
N.A..
“Initial Phase II Calculation
Date”: the last day of the second full fiscal quarter of the
Borrower beginning after the Phase II Opening Date.
“Insolvency”: with
respect to any Multiemployer Plan, the condition that such Plan is insolvent
within the meaning of Section 4245 of ERISA.
“Insolvent”: pertaining
to a condition of Insolvency.
“Insurance
Advisor”: Xxxxx-XxXxxx, LLC, or its successor, appointed by
the Administrative Agent with, unless at the time of such appointment there
exists an Event of Default, the consent of the Borrower (such consent not to be
unreasonably withheld or delayed).
“Insurance
Proceeds”: all cash and cash equivalents paid under any
casualty insurance policy maintained by a Loan Party other than, at such times
as any Loan Party has incurred Indebtedness pursuant to Section 7.2(c), any such
amounts received in respect of the Aircraft, net of (a) all direct costs of
recovery of such Insurance Proceeds (including legal, accounting, appraisal and
insurance adjuster fees and expenses), (b) all
27
amounts
required to be applied to the repayment of Indebtedness secured by a Lien
(including any penalty, premium or make-whole amounts related thereto) expressly
permitted hereunder on any asset which is the subject of the event to which such
Insurance Proceeds relate (other than any Lien pursuant to a Security Document
or any other First Lien Security Document or any Second Lien Security Document)
and (c) all taxes paid or reasonably estimated to be payable as a result thereof
(after taking into account any tax credits or deductions and any tax sharing
arrangements, in each case reducing the amount of taxes so paid or estimated to
be payable).
“Insurance
Requirements”: all material terms of any insurance policy
required pursuant to this Agreement or any Security Document and all material
regulations and then current standards applicable to or affecting any Mortgaged
Property or any part thereof or any use or condition thereof, which may, at any
time, be recommended by the Board of Fire Underwriters, if any, having
jurisdiction over any Mortgaged Property, or any other body exercising similar
functions.
“Intellectual
Property”: the collective reference to all rights, priorities
and privileges relating to intellectual property, whether arising under United
States, state, multinational or foreign laws or otherwise, including, without
limitation, copyrights, patents, trademarks, service-marks, technology, know-how
and processes, recipes, formulas, trade secrets, or licenses (under which the
applicable Person is licensor or licensee) relating to any of the foregoing and
all rights to xxx at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages
therefrom.
“Intellectual Property
Collateral”: all Intellectual Property of the Loan Parties,
now owned or hereafter acquired, upon which a Lien is purported to be created by
the Intellectual Property Security Agreements or the Security
Agreement.
“Intellectual Property
Security Agreement”: any Intellectual Property Security
Agreement executed and delivered by a Loan Party from time to time,
substantially in the form of Exhibit B to the Security Agreement.
“Intercreditor
Agreement”: the Intercreditor Agreement dated as of the
Closing Date, among the Administrative Agent, the 2014 Notes Indenture Trustee
and the Collateral Agent.
“Interest Payment
Date”: (a) as to any Base Rate Loan, the last day of each
March, June, September and December to occur while such Loan is outstanding and
the final maturity date of such Loan, (b) as to any Eurodollar Loan having
an Interest Period of three months or less, the last day of such Interest
Period, (c) as to any Eurodollar Loan having an Interest Period longer than
three months, each day which is three months, or an integral multiple thereof,
after the first day of such Interest Period and the last day of such Interest
Period, (d) as to any Loan (other than any Revolving Credit 1 Loan or Revolving
Credit 2 Loan that is a Base Rate Loan (unless all Revolving Credit 1 Loans or
Revolving Credit 2 Loans, as applicable, are being repaid in full in immediately
available funds and the Revolving Credit 1 Commitments or Revolving Credit 2
Commitments, as
28
applicable,
terminated) and any Swing Line Loan), the date of any repayment or prepayment
made in respect thereof, and (e) as to any Loan acquired by the
Borrower pursuant to a Permitted Loan Repurchase, the date of such
Permitted Loan Repurchase.
“Interest
Period”: as to any Eurodollar Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its Notice of Advance Request, Notice
of Borrowing or notice of conversion, as the case may be, given with respect
thereto; and (b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending one,
two, three or six months thereafter, as selected by the Borrower by irrevocable
notice to the Administrative Agent not less than three Business Days prior to
the last day of the then current Interest Period with respect thereto; provided, that all of
the foregoing provisions relating to Interest Periods are subject to the
following:
(i) if
any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on the
immediately preceding Business Day;
(ii) any
Interest Period that would otherwise extend, with respect to Revolving Credit 1
Loans, beyond the Scheduled Revolving Credit 1 Termination Date, with respect to
Revolving Credit 2 Loans, beyond the Scheduled Revolving Credit 2 Termination
Date, with respect to any Series of New Term Loans, beyond the Scheduled New
Term Loan Termination Date of such Series, and with respect to Term B Loans,
beyond the Scheduled Term B Loan Termination Date, shall end on the Revolving
Credit 1 Termination Date, the Revolving Credit 2 Termination Date, the New Term
Loan Termination Date of such Series or the Term B Loan Termination Date, as
applicable; and
(iii) any
Interest Period that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day of a
calendar month.
“Investments”: as
defined in Section 7.8.
“Issuing
Lender”: Deutsche Bank Trust Company Americas and any other
Revolving Credit Lender which at the request of the Borrower and with the
consent of the Administrative Agent agrees to issue Letters of Credit. As of the
Amended and Restated Effective Date, the sole Issuing Lender is Deutsche Bank
Trust Company Americas.
“Joinder
Agreement”: an agreement substantially in the form of Exhibit
C hereto or such other form as shall be approved by the Administrative
Agent.
“Kevyn”: Kevyn,
LLC, a Nevada limited liability company.
29
“Xxxxx
Land”: the approximately 18 acres of land located across from
the Project on Xxxxx Xxxx and Sands Avenue and owned as of the Amended and
Restated Effective Date by Wynn Sunrise.
“L/C
Commitment”: $25,000,000.
“L/C Fee Payment
Date”: the last day of each March, June, September and
December and the last day of the Revolving Credit 2 Commitment
Period.
“L/C
Obligations”: at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters of
Credit that have not then been reimbursed pursuant to Section 3.5.
“L/C
Participants”: the collective reference to all the Revolving
Credit 2 Lenders other than the Issuing Lender.
“Las Vegas
Jet”: Las Vegas Jet, LLC, a Nevada limited liability
company.
“Lender
Default”: the failure or refusal (which has not been retracted
in writing) of a Lender to make available (a) its portion of any Loan required
to be made by such Lender hereunder (including, without limitation, under
Section 2.7(b)), (b) its portion of any unreimbursed payment required to be made
by such Lender under Section 3.4, (c) its portion of any participating interest
required to be purchased by such Lender pursuant to Section 2.7(c) or (d) any
amount required to be paid and/or reimbursed by such Lender to any Agent or any
other Lender hereunder or under any other Loan Document (whether pursuant to
Section 2.18(e) or otherwise), in each case at or prior to such time that the
same is required to be so made, reimbursed or purchased by such
Lender.
“Lenders”: the
Swing Line Lender, each Revolving Credit Lender, each Term B Loan Lender, each
New Term Loan Lender and the Issuing Lender.
“Letter of Credit Commitment
Period”: the period from and including the Closing Date to the
date that is 30 days prior to the Scheduled Revolving Credit 2 Termination
Date.
“Letter of Credit
Request”: a certificate duly executed by a Responsible Officer
of the Borrower substantially in the form of Exhibit O hereto.
“Letters of
Credit”: as defined in Section 3.1(a).
“License
Revocation”: the revocation, failure to renew or suspension
of, or the appointment of a receiver or similar official with respect to, any
casino, gambling or gaming license, including, without limitation, any Nevada
Gaming Approvals, covering any portion of the Project.
“Lien”: with
respect to any Property, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such Property, whether or not filed,
30
recorded
or otherwise perfected under applicable law (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any option
or other agreement to sell or give a security interest in such Property but
excluding any license or similar agreement (such as an option to obtain a
license) of Intellectual Property).
“Liquidated
Damages”: any proceeds or liquidated damages paid pursuant to
any obligation, default or breach under the Project Documents (net of costs,
fees and expenses incurred by a Loan Party pursuant to arm’s length transactions
in connection with adjustment or settlement thereof and taxes paid with respect
thereto). For purposes of this definition, so-called “liquidated
damages” insurance policies shall be deemed to be Project
Documents.
“Loan”: any
Revolving Credit Loan, Term B Loan, New Term Loan or Swing Line Loan made by any
Lender pursuant to this Agreement.
“Loan
Documents”: this Agreement, the Security Documents, the
Disbursement Agreement, the Intercreditor Agreement, the Management Fee
Subordination Agreement, the Completion Guaranty, the Indemnity Agreements, the
Notes, the Administrative Agent Fee Letter, the Facility Fee Letter and any
other loan agreements entered into from time to time by any Loan Party with the
Administrative Agent in its capacity as such.
“Loan
Parties”: the Borrower, Capital Corp., Show Performers, Wynn
Golf, Xxxx Sunrise, World Travel, Las Vegas Jet, Kevyn and each other Subsidiary
of the Borrower (including any such Subsidiary that becomes a party to a Loan
Document pursuant to Section 6.10(b)) other than the Completion Guarantor or any
trust that owns the Aircraft.
“Local Company Collateral
Account Agreement(s)”: as defined in the Disbursement
Agreement.
“Loss
Proceeds”: as defined in the Disbursement
Agreement.
“Macau
Loan”: the intercompany loan in the principal amount of $80
million directly or indirectly provided by Xxxx Las Vegas to Xxxx Macau in
August 2005.
“Major Project
Participant”: each Person who is a party to a Material
Contract (other than a Loan Party).
“Majority Initial Lending
Institutions”: at any time, the Initial Lending Institutions
holding more than 50% of the sum of (i) the Total Initial Lending Institution
Term B Loan Commitments then in effect or, if the Term B Loan Commitments have
been terminated, the Total Initial Lending Institution Term B Loan Extensions of
Credit then outstanding and (ii) the Total Initial Lending Institution Revolving
Credit Commitments then in effect or, if the Revolving Credit Commitments have
been terminated, the Total Initial Lending Institution Revolving Extensions of
Credit then outstanding; provided, that, for
purposes of determining the Revolving Credit Commitments, Term B Loan
Commitments, Revolving Extensions of Credit or Term B Loan Extensions of Credit,
as applicable, held by an Initial Lending Institution at any
31
time
pursuant to this definition only, each Initial Lending Institution shall be
deemed to hold such Revolving Credit Commitments, Term B Loan Commitments,
Revolving Extensions of Credit or Term B Loan Extensions of Credit, as
applicable, held by its Affiliates in addition to that held by it
directly.
“Majority of the
Arrangers”: at any time, the majority of the Arrangers, as
determined by the number of Arrangers and not by Commitments or other extensions
of credit under this Agreement or the other Loan Documents.
“Management
Agreement”: the Management Agreement, dated as of the Closing
Date, between the Loan Parties, on the one hand, and Wynn Resorts, on the other
hand.
“Management Fee Subordination
Agreement”: the Management Fee Subordination Agreement, dated
as of the Closing Date, among the Loan Parties, Wynn Resorts, the 2014 Notes
Indenture Trustee and the Administrative Agent.
“Management
Fees”: as defined in the Management Agreement.
“Managers”: collectively,
Deutsche Bank Securities Inc., in its capacity as a joint book running manager,
Banc of America Securities LLC, in its capacity as a joint book running manager,
SG Americas Securities, LLC, in its capacity as a joint book running manager,
and X.X. Xxxxxx Securities Inc., in its capacity as a joint book running
manager.
“Managing
Agents”: collectively, Bank of Scotland, HSH Nordbank AG, The
Royal Bank of Scotland plc and Wachovia Bank, in each case in its capacity as a
managing agent.
“Material Adverse
Effect”: one or a combination of conditions or changes
affecting, in a material adverse way (a) the business, assets, liabilities,
property, condition (financial or otherwise), results of operations, prospects,
value or management of the Borrower and the other Loan Parties taken as a whole,
(b) the Project, (c) the validity or enforceability of this Agreement or
any of the other Loan Documents, (d) the validity, enforceability or
priority of the Liens purported to be created by the Security Documents, or
(e) the rights or remedies of any Secured Party hereunder or under any of
the other Loan Documents.
“Material Construction
Agreements”: as defined in the Disbursement
Agreement.
“Material
Contract”: (a) the Material Construction Agreements, the Golf
Course Lease, the Management Agreement and the Project Services Agreement and
(b) any other contract or arrangement to which any Loan Party is a party (other
than the Financing Documents or any other agreements relating to Indebtedness
permitted hereunder) for which breach, nonperformance, cancellation or failure
to renew could reasonably be expected to have a Material Adverse Effect (taking
into consideration any viable replacements or substitutions therefor at the time
such determination is made).
“Moody’s”: Xxxxx’x
Investors Service, Inc., a Delaware corporation, or any successor
thereof.
32
“Mortgaged
Properties”: the real properties and leasehold estates listed
on Schedule 1.1
or otherwise as to which the Collateral Agent for the benefit of, among others,
the Secured Parties has been granted or shall be granted a Lien pursuant to the
Mortgages. For purposes of clarification, subject to Section 6.7, the
leasehold estate described under number 2 of Schedule 4.25(a) is not a Mortgaged
Property and the Lien of the Secured Parties created under the Security
Documents does not attach thereto.
“Mortgages”: the
Borrower Mortgage, the Xxxx Golf Mortgage, the Wynn Sunrise Mortgage and each of
the other mortgages, deeds of trust and deeds to secure Obligations made by any
Loan Party in favor of, or for the benefit of, the Collateral Agent for the
benefit of the Secured Parties, substantially in the form of Exhibit D
hereto (with such changes thereto as shall be advisable under the law of the
jurisdiction in which such mortgage, deed of trust or deed is to be
recorded).
“Xx.
Xxxx”: Xxxxxxx X. Xxxx, an individual, and his
heirs.
“Multiemployer
Plan”: a Plan that is a multiemployer plan as defined in
Section 3(37) or 4001(a)(3) of ERISA.
“Net Cash
Proceeds”: (a) in connection with any Asset Sale or other
Disposition, the proceeds thereof in the form of cash and Cash Equivalents
(including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received), net of attorneys’ fees,
accountants’ fees, investment banking fees, amounts required to be applied to
the repayment of Indebtedness secured by a Lien (including any penalty, premium
or make-whole amounts related thereto) expressly permitted hereunder on any
asset which is the subject of such Asset Sale or other Disposition (other than
any Lien pursuant to a Security Document or any other First Lien Security
Document or any Second Lien Security Document), commissions, related surety
costs and title insurance premiums and other fees and expenses, in each case, to
the extent actually incurred or reimbursed by a Loan Party in connection with
such Asset Sale or other Disposition and net of taxes paid or reasonably
estimated to be payable (after taking into account any tax credits or deductions
and any tax sharing arrangements, in each case reducing the amount of taxes so
paid or estimated to be payable), purchase price adjustments reasonably expected
to be payable and reserves or other set asides against liabilities, in each case
as a result thereof; (b) in connection with any issuance or sale of debt
securities or instruments or the incurrence of loans, the cash proceeds received
from such issuance or incurrence, net of attorneys’ fees, investment banking
fees, accountants’ fees, underwriting discounts and commissions and other fees
and expenses, in each case, to the extent actually incurred or reimbursed by a
Loan Party in connection therewith; and (c) in connection with any issuance or
sale of Capital Stock by the Borrower, the cash proceeds thereof, net of
attorneys’ fees, investment banking fees, accountants’ fees, underwriting
discounts and commissions and other fees and expenses, in each case to the
extent actually incurred or reimbursed by a Loan Party in connection
therewith.
33
“Net
Revenues”: for any period, the net revenues of the Borrower
and its consolidated Subsidiaries, as set forth on the
Borrower’s income statement for the relevant period under the line item “net
revenues,” calculated in accordance with GAAP and with Regulation S-X under
the Securities Act and in a manner consistent with that customarily utilized in
the gaming industry.
“Nevada Collateral
Agent”: Bank of America, N.A., as collateral agent under the
Collateral Agency Agreement.
“Nevada Gaming
Approvals”: with respect to any action by a particular Person,
any consent, approval or other authorization required for such action by such
Person from a Nevada Gaming Authority or under Nevada Gaming Laws.
“Nevada Gaming
Authorities”: collectively, the Nevada Gaming Commission, the
Nevada State Gaming Control Board, the Xxxxx County Liquor and Gaming Licensing
Board and any other federal, state or local agency having jurisdiction over
gaming operations in the State of Nevada.
“Nevada Gaming
Laws”: the Nevada Gaming Control Act, as codified in Chapter
463 of the NRS, the regulations of the Nevada Gaming Commission promulgated
thereunder, as amended from time to time, and other laws or regulations
promulgated by the Nevada Gaming Authorities and applying to gaming operations
in the State of Nevada.
“New Revolving Credit
Commitments”: as defined in Section 2.26(a).
“New Revolving Credit
Lender”: as defined in Section 2.26(a).
“New Revolving Credit
Loan”: as defined in Section 2.26(b).
“New Term Loan
Commitments”: as defined in Section 2.26(a).
“New Term Loan Extensions of
Credit”: as to any New Term Loan Lender at any time, the
aggregate principal amount of all New Term Loans made by such Lender then
outstanding.
“New Term Loan
Facility”: with respect to each Series of New Term Loans, the
applicable New Term Loan Commitments and the New Term Loans made
thereunder.
“New Term Loan
Lender”: as defined in Section 2.26(a).
“New Term Loan Termination
Date”: with respect to each Series of New Term Loans, the
earlier of (a) the Scheduled New Term Loan Termination Date and (b) the
date on which the Loans become due and payable pursuant to Section 8, but in no
event later than the Scheduled Term B Loan Termination Date.
“New Term
Loans”: as defined in Section 2.26(c).
34
“New Term
Notes”: as defined in Section 2.8(e).
“Non-Defaulting
Lender”: any Lender other than a Defaulting
Lender.
“Non-Excluded
Taxes”: as defined in Section 2.20(a).
“Non-U.S.
Lender”: as defined in Section 2.20(f).
“Notes”: the
collective reference to the Revolving Credit 1 Notes, the Revolving Credit 2
Notes, the Term B Notes, the Swing Line Notes and the New Term Notes, if any,
evidencing Loans.
“Notice of Advance
Request”: as defined in the Disbursement
Agreement.
“Notice of
Borrowing”: a certificate duly executed by a Responsible
Officer of the Borrower substantially in the form of Exhibit M
hereto.
“NRS”: the
Nevada Revised Statutes, as amended from time to time.
“Obligations”: the
unpaid principal of and interest on (including, without limitation, interest
accruing after the maturity of the Loans and Reimbursement Obligations and
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
any Loan Party, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) the Loans and all other obligations and
liabilities of Wynn Resorts Holdings or the Loan Parties to any Arranger, to any
Agent, to any Manager, to any Managing Agent or to any Lender (or, in the case
of Specified Hedge Agreements, any affiliate of any Lender), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement, any other Loan Document, the Letters of Credit, any Specified Hedge
Agreement or any other document made, delivered or given in connection herewith
or therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including, without limitation,
all fees, charges and disbursements of counsel to any Arranger, to any Agent, to
any Manager, to any Managing Agent or to any Lender that are required to be paid
by any Loan Party pursuant hereto or to any other Loan Document) or
otherwise.
“On-Site
Cash”: amounts held in cash at the Site in connection with and
necessary for the ordinary course operations of the Project.
“Operative
Documents”: the Financing Agreements and the Project
Documents.
“Original Credit
Agreement”: that certain Credit Agreement, dated as of the
Closing Date, entered into among the Borrower, the several banks and other
financial institutions or entities from time to time party thereto as lenders,
Deutsche Bank Securities Inc., as lead arranger and joint book running manager,
Deutsche Bank Trust Company Americas, as administrative agent, issuing lender
and swing line lender, Banc of America Securities LLC, as lead arranger and
joint book running manager, Bank of
35
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 amended by that certain First
Amendment to Credit Agreement dated as of April 26, 2005, that certain Second
Amendment to Credit Agreement dated as of June 29, 2005, that certain Third
Amendment to Credit Agreement dated as of March 15, 2006 and that certain Fourth
Amendment to Credit Agreement dated as of June 30, 2006.
“Participant”: as
defined in Section 10.6(b).
“Pass Through
Entity”: any of (a) a grantor trust for federal or state
income tax purposes or (b) an entity treated as a partnership or a
disregarded entity for federal or state income tax purposes.
“Patriot Act” shall
have the meaning given in Section 4.30.
“Payment
Amount”: as defined in Section 3.5.
“Payment
Office”: the office of the Administrative Agent specified in
Section 10.2 or as otherwise specified from time to time by the Administrative
Agent as its payment office by notice to the Borrower and the
Lenders.
“PBGC”: the
Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title
IV of ERISA (or any successor).
“Permits”: the
collective reference to (a) Environmental Permits and (b) any and all other
franchises, licenses, leases, permits, approvals, notifications, certifications,
registrations, authorizations, exemptions, variances, qualifications, easements,
rights of way, Liens and other rights, privileges and approvals required under
any Requirement of Law (including Nevada Gaming Laws), but excluding any license
or similar agreement (such as an option to obtain a license) of Intellectual
Property .
“Permitted
Businesses”: (a) the gaming business, (b) the development,
construction, ownership and operation of a Gaming Facility, (c) all businesses,
whether or not licensed by the Nevada Gaming Authorities, which are necessary
for, incident to, useful to, arising out of, supportive of or connected to the
development, construction, ownership or operation of a Gaming Facility, (d) any
development, construction, ownership or operation of lodging, retail, restaurant
or convention facilities, sports or entertainment facilities, golf course
facilities, art gallery facilities, food and beverage distribution operations,
transportation services (including operation of the Aircraft and chartering
thereof), parking services, sales and marketing services, sales, leasing and
repair of automobiles or other activities related to the foregoing, (e) any
development, construction, ownership or operation of a full service destination
resort, including, without limitation, residential or vacation housing
facilities (including, without limitation, timeshares, interval ownership and
condominiums and similar developments), and
36
parking
services, sales and marketing services or other activities related to the
foregoing, (f) any business (including any related internet business) that is a
reasonable extension, development or expansion of any of the foregoing or
incidental thereto and/or (g) the ownership by a Person of Capital Stock in its
Subsidiaries; provided, however, that with
respect to the Borrower and its Subsidiaries other than, with respect to the
ownership and operation of the Aircraft only, World Travel and Las Vegas Jet,
the foregoing shall only be Permitted Businesses to the extent related to the
Project or furtherance of the Project’s development, construction, ownership or
operation; and provided, further, that,
notwithstanding the foregoing, the Borrower shall be permitted to (i) continue
to perform its obligations and receive benefits under the Macau Loan and (ii)
pay Allocable Overhead as otherwise permitted under this Agreement.
“Permitted C-Corp.
Conversion”: a transaction resulting in the Borrower, any
other Loan Party or the Completion Guarantor becoming a subchapter “C”
corporation under the Code, so long as, in connection with such transaction (a)
the subchapter “C” corporation resulting from such transaction is a corporation
organized and existing under the laws of any state of the United States or the
District of Columbia and the Beneficial Owners of the Capital Stock of the
subchapter “C” corporation shall be the same, and shall be in the same
percentages, as the Beneficial Owners of the Capital Stock of the applicable
entity immediately prior to such transaction, (b) the subchapter “C” corporation
resulting from such transaction assumes in writing all of the obligations, if
any, of the applicable entity under the Loan Documents and all other material
documents and instruments to which such Person is a party, (c) to the extent the
Liens securing the Obligations on the Property of the applicable entity
immediately prior to such transaction do not survive with respect to the
subchapter “C” corporation resulting from such transaction, such subchapter “C”
corporation complies with the requirements of Section 6.10 as if it and/or its
Property, as the case may be, was newly acquired on the date of the applicable
Permitted C-Corp. Conversion, (d) the Required Lenders are given not less than
45 days’ advance written notice of such transaction and evidence reasonably
satisfactory to the Required Lenders (including, without limitation, title
insurance and a reasonably satisfactory opinion of counsel) regarding the
maintenance of the perfection and priority of Liens granted, or intended to be
granted, in favor of the Secured Parties in the Collateral following such
transaction, (e) such transaction would not cause or result in a Default or an
Event of Default; (f) such transaction does not result in the loss or suspension
or material impairment of any material Permit unless a comparable Permit is
effective prior to or simultaneously with such loss, suspension or material
impairment, (g) such transaction does not require any Lender to obtain any
license, permit, franchise or other authorization from any Nevada Gaming
Authority necessary on the date of the Permitted C-Corp. Conversion or at any
time thereafter to own, lease, operate or otherwise conduct the gaming business
of the Borrower or any other Loan Party or be qualified or found suitable under
the laws of any applicable gaming jurisdiction and (h) the Borrower shall have
delivered to the Administrative Agent an opinion of counsel of national repute
in the United States reasonably acceptable to the Administrative Agent
confirming that neither the Borrower nor any other Loan Party nor any of the
Lenders will recognize income, gain or loss for United States federal or state
income tax purposes as a result of such Permitted C-Corp.
Conversion.
37
“Permitted Debt Repurchase
Amount”: at any time, the aggregate Net Cash Proceeds from the
issuance or sale of Capital Stock (other than Disqualified Stock) of the
Borrower or equity contributions to the Borrower received by the Borrower during
the preceding 6-month period and not expended for, committed, allocated or
applied to, or set aside for any purpose other than the Permitted Loan
Repurchase or Permitted Notes Repurchase in respect of which the Permitted Debt
Repurchase Amount is being measured; provided that nothing in this
definition of “Permitted Debt Repurchase Amount” shall prohibit the Net Cash
Proceeds or equity contributions constituting the Permitted Debt Repurchase
Amount from being included in “Consolidated EBITDA” subject to and in accordance
with the terms thereof.
“Permitted
Encumbrances”: as defined in the Disbursement
Agreement.
“Permitted
Liens”: the collective reference to (a) in the case of
Collateral other than Pledged Stock, Liens permitted by Section 7.3 (but only of
the priority and to the extent of coverage expressly set forth in Section 7.3
and the Security Agreement and subject to the provisions of the Intercreditor
Agreement) and (b) in the case of Collateral consisting of Pledged Stock,
non-consensual Liens permitted by Section 7.3 to the extent arising by operation
of law and Liens permitted by Section 7.3(k).
“Permitted Loan
Repurchase”: any purchase of Loans by the Borrower made in
accordance with Section 10.6(g); provided that (i) the
aggregate amount paid by the Borrower for such purchases (excluding payments of
accrued interest) at any time shall not exceed the Permitted Debt Repurchase
Amount at such time and (ii) each such purchase is consummated pursuant to a
written offer made to all Term B Lenders (if the Borrower proposes to purchase
Term B Loans), all New Term Loan Lenders of a Series (if the Borrower proposes
to purchase New Term Loans of such Series), all Revolving Credit 1
Lenders (if the Borrower proposes to purchase Revolving Credit 1 Loans) or all
Revolving Credit 2 Lenders (if the Borrower proposes to purchase Revolving
Credit 2 Loans), and delivered to the Administrative Agent concurrently with the
delivery of such offer to the applicable Lenders.
“Permitted Notes
Repurchase”: any purchase of 2014 Notes by the Borrower; provided that the
aggregate amount paid by the Borrower for such purchases (excluding payments of
accrued interest) at any time shall not exceed the Permitted Debt Repurchase
Amount at such time.
“Permitted Refinancing
Indebtedness”: any Indebtedness of any Loan Party issued in
exchange for, or the net proceeds of which are used to extend, refinance, renew,
replace, defease or refund any First Lien Secured Obligations, any Second Lien
Secured Obligations or any obligations under Senior Unsecured Debt; provided, that (a) the principal
amount (or accreted value, if applicable) of such Permitted Refinancing
Indebtedness does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded (plus all accrued interest on such Indebtedness and the
amount of all expenses and premiums incurred in connection therewith), (b) such
Permitted Refinancing Indebtedness has a final maturity date not earlier than
the final maturity date of, and has a
38
Weighted
Average Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded, (c) the restrictions on the Loan Parties contained in the
agreements governing such Permitted Refinancing Indebtedness are no more
restrictive, taken as a whole, than those contained in the agreements governing
the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded and, in any event, the differences between the restrictions on the
Loan Parties in the agreements governing such Permitted Refinancing Indebtedness
from those contained in the agreements governing the Indebtedness being
extended, refinancing, renewed, replaced, defeased or refunded, taken as a
whole, could not reasonably be expected to be materially adverse to the Loan
Parties (taken as a whole) or the Lenders and (d) to the extent related to any
First Lien Secured Obligations or any Second Lien Secured Obligations (including
any Permitted Refinancing Indebtedness related thereto) the relevant holders of
such Permitted Refinancing Indebtedness become party to the Intercreditor
Agreement. In the event Permitted Refinancing Indebtedness is used to
extend, refinance, renew, replace, amend and restate, restate, defease or refund
the 2014 Notes all relevant definitions and provisions of the Loan Documents
related to the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded shall be amended, as necessary, to reflect such Permitted
Refinancing Indebtedness and related documentation and/or arrangements by action
of the Administrative Agent without the consent of the Lenders.
“Permitted
Securities”: (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within 18 months from the date of acquisition, (b) shares of
money market, mutual or similar funds which invest exclusively in assets
satisfying the requirements of clause (a) of this definition or (c) shares of,
or an investment in, the JPMorgan Federal Money Market Fund.
“Person”: an
individual, partnership, corporation, limited liability company, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
“Phase I Final Completion
Date”: the Final Completion Date with respect to the Phase I
Project.
“Phase I Opening
Date”: April 28, 2005.
“Phase I
Project”: as defined in the Disbursement
Agreement.
“Phase I Project
Budget”: as defined in the Disbursement
Agreement.
“Phase II Completion
Date”: as defined in the Disbursement Agreement.
“Phase II Final Completion
Date”: (a) if the Amended and Restated Disbursement
Agreement Effective Date has not occurred, the Final Completion Date with
respect to the Phase II Project or (b) if the Amended and Restated Disbursement
Agreement Effective Date has occurred, as defined in the Disbursement
Agreement.
39
“Phase II Opening
Date”: as defined in the Disbursement Agreement.
“Phase II
Project”: as defined in the Disbursement
Agreement.
“Phase II Project
Budget”: as defined in the Disbursement
Agreement.
“Plan”: at
a particular time, any employee benefit plan that is subject to the requirements
of Section 412 of the Code or that is a Single Employer Plan and which the
Borrower or any other Loan Party or any Commonly Controlled Entity maintains,
administers, contributes to or is required to contribute to or under which the
Borrower or any other Loan Party or any Commonly Controlled Entity could incur
any liability.
“Plans and
Specifications”: as defined in the Disbursement
Agreement.
“Pledged
Stock”: as defined in the Security Agreement.
“Points of
Diversion”: with respect to any water permit held by any Loan
Party or otherwise utilized or expected to be utilized with respect to the
Project, the locations designated under such water permit where a well can be
located for the draw of water under such water permit.
“Presumed Tax
Liability”: for any Person that is not a Pass Through Entity
for any period, an amount equal to the product of (a) the Taxable Income
allocated or attributable to such Person (directly or through one or more tiers
of Pass Through Entities) (net of taxable losses allocated to such Person with
respect to any Loan Party that (i) are, or were previously, deductible by
such Person and (ii) have not previously reduced Taxable Income) and
(b) the Presumed Tax Rate.
“Presumed Tax
Rate”: with respect to any Person for any period, the highest
effective combined Federal, state and local income tax rate applicable during
such period to a corporation organized under the laws of the State of Nevada,
taxable at the highest marginal Federal income tax rate and the highest marginal
Nevada and Las Vegas income tax rates (after giving effect to the Federal income
tax deduction for such state and local income taxes, taking into account the
effects of the alternative minimum tax, such effects being calculated on the
assumption that such Person’s only taxable income is the income allocated or
attributable to such Person for such period (directly or through one or more
tiers of Pass Through Entities) with respect to its equity interest in any of
the Loan Parties that is a Pass Through Entity). In determining the
Presumed Tax Rate, the character of the items of income and gain comprising
Taxable Income (e.g.
ordinary income or long term capital gain) shall be taken into
account.
“Pricing
Grid”: the pricing grid attached hereto as Annex
A.
“Prime
Rate”: shall mean the rate which Deutsche Bank Trust Company
Americas announces,
from time to time, as its prime lending rate, the Prime Rate to change when and
as such prime lending rate changes. The Prime Rate is a reference
rate and does not necessarily represent the lowest or best rate actually charged
by Deutsche Bank Trust Company Americas to any customer of
Deutsche Bank Trust Company Americas. The Borrower acknowledges that
Deutsche Bank Trust Company
40
Americas may, from time to time,
make commercial loans or other loans at rates of interest at, above or below the
Prime Rate.
“Proceedings”: as
defined in Section 6.2(n).
“Project”: collectively,
the Phase I Project, the Phase II Project and all other Property of the Loan
Parties; provided that for
purposes of Section 2.24 only, the term “Project” shall mean (i) until the Phase
II Completion Date, the Phase I Project, and (ii) for the period from and after
the Phase II Completion Date, collectively the Phase I Project, the Phase II
Project and all other Property of the Loan Parties.
“Project
Costs”: as defined in the Disbursement Agreement.
“Project
Documents”: collectively, each document or agreement entered
into on, prior to or after the Closing Date (including Material Contracts and
Additional Material Contracts) relating to the design, engineering, development,
construction, installation, maintenance or operation of the Project (including
any Guarantee Obligations in furtherance thereof) but, in any case, excluding
Financing Agreements.
“Project Liquidity Reserve
Account”: as defined in the Disbursement
Agreement.
“Project Services
Agreement”: the Amended and Restated Project Administration
Services Agreement, dated as of the Closing Date, between the Borrower and Xxxx
Design.
“Projections”: as
defined in Section 6.2(c).
“Property”: any
right or interest in or to property of any kind whatsoever, whether real,
personal or mixed and whether tangible or intangible, including, without
limitation, Capital Stock.
“Quarterly
Date”: (a) with respect to the first Quarterly Date, December
31, 2005 and (b) with respect to each subsequent Quarterly Date, the last day of
the next succeeding fiscal quarter of the Borrower.
“Reaffirmation
Agreement”: that certain Reaffirmation Agreement substantially
in the form of Exhibit B hereto, dated as of the Amended and Restated Effective
Date, executed by Xxxx Resorts Holdings and each Loan Party in favor of the
Administrative Agent and the Collateral Agent.
“Real
Estate”: All real property held by the Loan Parties, which the
relevant Loan Party owns in fee or in which it holds a leasehold interest as a
tenant or in which it holds an easement right as an easement holder or otherwise
occupies, including, without limitation, the real property more particularly
identified in Schedule
4.25(a) and includes, without limitation, the Site and the Site
Easements.
41
“Refinancing
Transaction”: collectively and in each case as occurred on or
about the Closing Date, (a) the consummation of a tender offer for the 2010
Notes, (b) the discharge of the 2010 Notes Indenture pursuant to Article 12 of
the 2010 Notes Indenture, (c) the payment in full and termination of that
certain Credit Agreement, dated as of October 30, 2002, among the Borrower,
Deutsche Bank Trust Company Americas, as administrative agent, and the other
banks and financial institutions party thereto from time to time, (d) the
payment in full and termination of that certain Credit Agreement, dated as of
May 3, 2004, among Bora Bora, LLC, Deutsche Bank Trust Company Americas, as
administrative agent, and the other banks and financial institutions party
thereto from time to time and (e) the payment in full and termination of that
certain Loan Agreement, dated as of October 30, 2002, among the Borrower, Xxxxx
Fargo Bank Nevada, National Association, as collateral agent, and the other
banks and financial institutions party thereto from time to time.
“Refunded Swing Line
Loans”: as defined in Section 2.7(b).
“Refunding
Date”: as defined in Section 2.7(c).
“Register”: as
defined in Section 10.6(d).
“Regulation
D”: Regulation D of the Board as in effect from time to time
(and any successor to all or a portion thereof).
“Regulation
H”: Regulation H of the Board as in effect from time to time
(and any successor to all or a portion thereof).
“Regulation
T”: Regulation T of the Board as in effect from time to time
(and any successor to all or a portion thereof).
“Regulation
U”: Regulation U of the Board as in effect from time to time
(and any successor to all or a portion thereof).
“Regulation
X”: Regulation X of the Board as in effect from time to time
(and any successor to all or a portion thereof).
“Reimbursement
Obligation”: the obligation of the Borrower to reimburse the
Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of
Credit.
“Reinvested
Amounts”: as defined in Section 2.12(c).
“Reinvestment Deferred
Amount”: with respect to any Reinvestment Event, the aggregate
Net Cash Proceeds received by the Borrower or any other Loan Party in connection
therewith that are not applied to prepay the Term Loans or reduce the Revolving
Credit Commitments pursuant to Section 2.12(b) as a result of the delivery of a
Reinvestment Notice.
“Reinvestment
Event”: any Asset Sale in respect of which the Borrower has
delivered a Reinvestment Notice.
42
“Reinvestment
Notice”: a written notice executed by a Responsible Officer of
the Borrower and, if applicable, a Responsible Officer of any other Loan Party
who made or is making the corresponding Asset Sale and delivered to the
Administrative Agent within 30 days after such Asset Sale, stating that no
Default or Event of Default has occurred and is continuing and that the Borrower
(and, if applicable, such other Loan Party) intends and expects to use all or a
specified portion of the Net Cash Proceeds of such Asset Sale to acquire assets
useful in its Permitted Businesses.
“Reinvestment Prepayment
Amount”: with respect to any Reinvestment Event, the
Reinvestment Deferred Amount relating thereto less any amount expended prior to
the relevant Reinvestment Prepayment Date to acquire assets useful in the
Borrower’s or the other applicable Loan Party’s, as the case may be, Permitted
Businesses.
“Reinvestment Prepayment
Date”: with respect to any Reinvestment Event, the earlier of
(a) the date occurring 360 days after such Reinvestment Event and (b) the
date on which the Borrower or the applicable Loan Party shall have determined
not to acquire assets useful in its respective Permitted Business with all or
any portion of the relevant Reinvestment Deferred Amount.
“Related
Party”: either (a) any 80% (or more) owned Subsidiary, heir,
estate, lineal descendent or immediate family member of Xx. Xxxx; or (b) any
trust, corporation, partnership or other entity, the beneficiaries, equity
holders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of Xx. Xxxx and/or such other Persons
referred to in the immediately preceding clause (a).
“Release”: any
release, spill, emission, leaking, pumping, pouring, injection, escaping,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of
Hazardous Substances into the indoor or outdoor environment (including the
abandonment or disposal of any barrels, containers or other closed receptacles
containing any Hazardous Substances), including the movement of any Hazardous
Substances through the air, soil, surface water or groundwater.
“Released
Assets”: as defined in the Security Agreement.
“Reorganization”: with
respect to any Multiemployer Plan, the condition that such plan is in
reorganization within the meaning of Section 4241 of ERISA.
“Repair
Plan”: as defined in Section 2.24(a)(iv).
“Reportable
Event”: any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under applicable regulations.
“Required Facility
Lenders”: with respect to any Facility (a) at any time on or
after the termination of the Term B Loan Commitments, the New Term Loan
Commitments with respect to a Series of New Term Loans or the Revolving Credit
Commitments, as the case may be, Non-Defaulting Lenders holding more than 50% of
the Total Term B Loan Extensions of Credit of Non-Defaulting Lenders, the Total
New
43
Term
Loan Extensions of Credit with respect to such Series of New Term Loans of
Non-Defaulting Lenders or the Total Revolving Extensions of Credit of
Non-Defaulting Lenders, as the case may be, or (b) at any time prior to any
termination of the Term B Loan Commitments, the New Term Loan Commitments with
respect to a Series of New Term Loans or the Revolving Credit Commitments, as
the case may be, Non-Defaulting Lenders holding more than 50% of the Total Term
B Loan Commitments (less the aggregate Term B Loan Commitments of Defaulting
Lenders), Total New Term Loan Commitments with respect to such Series of New
Term Loans (less the aggregate of such New Term Loan Commitments of Defaulting
Lenders) or Total Revolving Credit Commitments (less the aggregate Revolving
Credit Commitments of Defaulting Lenders), as the case may be.
“Required
Lenders”: at any time, Non-Defaulting Lenders holding more
than 50% of the sum of (a) the Total Term B Loan Commitments (less the aggregate
Term B Loan Commitments of Defaulting Lenders) then in effect or, if the Term B
Loan Commitments have been terminated, the Total Term B Loan Extensions of
Credit of Non-Defaulting Lenders then outstanding, (b) the Total New Term Loan
Commitments (less the aggregate New Term Loan Commitments of Defaulting Lenders)
then in effect or, if the New Term Loan Commitments have been terminated, the
Total New Term Loan Extensions of Credit of Non-Defaulting Lenders then
outstanding, and (c) the Total Revolving Credit Commitments (less the aggregate
Revolving Credit Commitments of Defaulting Lenders) then in effect or, if the
Revolving Credit Commitments have been terminated, the Total Revolving
Extensions of Credit of Non-Defaulting Lenders then outstanding.
“Requirement of
Law”: as to any Person, the Governing Documents of such
Person, and any law, treaty, order, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, including, without
limitation, Permits, in each case applicable to or binding upon such Person or
any of its Property or to which such Person or any of its Property is
subject.
“Responsible
Officer”: as to any Person, the chief executive officer,
president, chief financial officer or treasurer of such Person, but in any
event, with respect to matters set forth in Section 6.1 or 7.27 or the delivery
of Compliance Certificates or Reinvestment Notices, the chief financial officer
of such Person. All references to a “Responsible Officer” shall refer
to a Responsible Officer of the Borrower or Wynn Resorts.
“Restricted
Payments”: as defined in Section 7.6.
“Retail
Facility”: an up to approximately 60,000 square foot retail
facility adjoining the Project on the Site (other than any retail facility
contemplated in the Plans and Specifications on the Amended and Restated
Effective Date).
“Revolving 1 Commitment
Fee”: as defined in Section 2.9(a).
44
“Revolving 1 Commitment Fee
Rate”: (a) until the first Adjustment Date occurring after the
Initial Phase II Calculation Date, 0.375% per annum, and (b) on and after the
first Adjustment Date occurring after the Initial Phase II Calculation Date,
such rate as shall be determined from time to time pursuant to the Pricing
Grid.
“Revolving 1 Extensions of
Credit”: as to any Revolving Credit 1 Lender at any time, an
amount equal to the aggregate principal amount of all Revolving Credit 1 Loans
made by such Lender then outstanding.
“Revolving 2 Commitment
Fee”: as defined in Section 2.9(b).
“Revolving 2 Commitment Fee
Rate”: 1.000% per annum.
“Revolving 2 Extensions of
Credit”: as to any Revolving Credit 2 Lender at any time, an
amount equal to the sum of (a) the aggregate principal amount of all
Revolving Credit 2 Loans made by such Lender then outstanding, (b) such Lender’s
Revolving Credit 2 Percentage of the L/C Obligations then outstanding and (c)
such Lender’s Revolving Credit 2 Percentage of the aggregate principal amount of
Swing Line Loans then outstanding.
“Revolving Credit 1
Commitment”: as to any Lender, the obligation of such Lender,
if any, to make Revolving Credit 1 Loans, in an aggregate principal and/or face
amount not to exceed the amount set forth under the heading “Revolving Credit 1
Commitment” opposite such Lender’s name on Annex C hereto or, as the case may
be, in the Assignment and Acceptance pursuant to which such Lender became a
party hereto, as the same may be changed from time to time pursuant to the terms
hereof.
“Revolving Credit 1
Commitment Period”: the period from and including the Closing
Date to the Revolving Credit 1 Termination Date.
“Revolving Credit 1
Lender”: each Lender that has a Revolving Credit 1 Commitment
or that is the holder of Revolving Credit 1 Loans.
“Revolving Credit 1
Loans”: as defined in Section 2.3(a).
“Revolving Credit 1
Notes”: as defined Section 2.8(e).
“Revolving Credit 1
Percentage”: as to any Revolving Credit 1 Lender at any time,
the percentage which such Lender’s Revolving Credit 1 Commitment then
constitutes of the Total Revolving Credit 1 Commitments (or, at any time after
the Revolving Credit 1 Commitments shall have expired or terminated, the
percentage which the aggregate principal amount of such Lender’s Revolving 1
Extensions of Credit then outstanding constitutes of the aggregate principal
amount of the Total Revolving 1 Extensions of Credit then
outstanding).
“Revolving Credit 1
Termination Date”: the earlier of (a) the Scheduled Revolving
Credit 1 Termination Date and (b) the date on which the Loans become due and
payable pursuant to Section 8.
45
“Revolving Credit 2
Commitment”: as to any Lender, the obligation of such Lender,
if any, to make Revolving Credit 2 Loans and/or participate in Swing Line Loans
and Letters of Credit, in an aggregate principal and/or face amount not to
exceed the amount set forth under the heading “Revolving Credit 2 Commitment”
opposite such Lender’s name on Annex C hereto or, as the case may be, in the
Assignment and Acceptance or Joinder Agreement pursuant to which such Lender
became a party hereto, as the same may be changed from time to time pursuant to
the terms hereof.
“Revolving Credit 2
Commitment Period”: the period from and including the Closing
Date to the Revolving Credit 2 Termination Date.
“Revolving Credit 2
Lender”: each Lender that has a Revolving Credit 2 Commitment
or that is the holder of Revolving Credit 2 Loans.
“Revolving Credit 2
Loans”: as defined in Section 2.3(a). Upon the
Borrower’s election to increase the Revolving Credit 2 Commitments in accordance
with Section 2.26, “Revolving Credit 2 Loans” shall include the revolving credit
loans made under the New Revolving Credit Commitments.
“Revolving Credit 2
Notes”: as defined in Section 2.8(e).
“Revolving Credit 2
Percentage”: as to any Revolving Credit 2 Lender at any time,
the percentage which such Lender’s Revolving Credit 2 Commitment then
constitutes of the Total Revolving Credit 2 Commitments (or, at any time after
the Revolving Credit 2 Commitments shall have expired or terminated, the
percentage which the aggregate principal amount of such Lender’s Revolving 2
Extensions of Credit then outstanding constitutes of the aggregate principal
amount of the Total Revolving 2 Extensions of Credit then
outstanding).
“Revolving Credit 2
Termination Date”: the earlier of (a) the Scheduled Revolving
Credit 2 Termination Date and (b) the date on which the Loans become due and
payable pursuant to Section 8.
“Revolving Credit
Commitments”: the Revolving Credit 1 Commitments and the
Revolving Credit 2 Commitments.
“Revolving Credit
Facility”: the Revolving Credit Commitments and the extensions
of credit made thereunder.
“Revolving Credit
Lender”: each Lender that has a Revolving Credit Commitment or
that is the holder of Revolving Credit Loans.
“Revolving Credit
Loans”: Revolving Credit 1 Loans and Revolving Credit 2
Loans.
“Revolving Credit
Percentage”: as to any Revolving Credit Lender at any time,
the percentage which such Lender’s Revolving Credit Commitment then constitutes
of the Total Revolving Credit Commitments (or, at any time after the Revolving
Credit
46
Commitments
shall have expired or terminated, the percentage which the aggregate principal
and/or face amount of such Lender’s Revolving Extensions of Credit then
outstanding constitutes of the aggregate principal and/or face amount of the
Total Revolving Extensions of Credit then outstanding).
“Revolving Extensions of
Credit”: as to any Revolving Credit Lender at any time, the
sum of such Lender’s Revolving 1 Extensions of Credit and Revolving 2 Extensions
of Credit.
“S&P”: Standard
& Poor’s Ratings Group, a New York corporation, or any successor
thereof.
“Scheduled New Term Loan
Termination Date”: the date that the New Term Loans of a
Series shall become due and payable in full hereunder, as specified in the
applicable Joinder Agreement, including by acceleration or
otherwise.
“Scheduled Revolving Credit 1
Termination Date”: the fifth anniversary of the Amended and
Restated Effective Date.
“Scheduled Revolving Credit 2
Termination Date”: July 15, 2013.
“Scheduled Term B Loan
Termination Date”: the seventh anniversary of the Amended and
Restated Effective Date.
“SEC”: the
Securities and Exchange Commission (or successors thereto or an analogous
Governmental Authority).
“Second Lien Secured
Obligations”: as defined in the Intercreditor
Agreement.
“Second Lien Security
Document”: as defined in the Intercreditor
Agreement.
“Secured
Parties”: collectively, the Arrangers, the Agents, the
Managers, the Managing Agents, the Lenders and, with respect to any Specified
Hedge Agreement, any affiliate of any Lender party thereto (or any Person that
was a Lender or an affiliate thereof when such Specified Hedge Agreement was
entered into) that has agreed to be bound by the provisions of Section 6.2 of
the Security Agreement as if it were a party thereto, and by the provisions of
Section 9 hereof as if it were a Lender party hereto.
“Securities
Intermediary”: as defined in the Disbursement
Agreement.
“Security
Agreement”: the Pledge and Security Agreement dated as of the
Closing Date, among each Loan Party, Xxxx Resorts Holdings and the Collateral
Agent.
“Security
Documents”: the collective reference to the Guarantee, the
Security Agreement, the Reaffirmation Agreement, the Intellectual Property
Security Agreements, the Control Agreements, the Mortgages, the Consents, the
Collateral Agency Agreement and all other pledge and security documents
hereafter delivered to the Collateral Agent or the Administrative Agent granting
a Lien on any Property (or associated with such a
47
grant)
of any Person to secure the obligations and liabilities of any Loan Party, Xxxx
Resorts Holdings or the Completion Guarantor under any Loan
Document.
“Senior Permitted
Liens”: Permitted Liens that are expressly permitted by the
terms of the Loan Documents to be superior in priority to the Liens of the
Security Documents.
“Senior Unsecured
Debt”: as defined in Section 7.2(n).
“Series”: as
defined in Section 2.26(a).
“Show
Performers”: Xxxx Show Performers, LLC, a Nevada limited
liability company.
“Single Employer
Plan”: any Plan that is covered by Title IV of ERISA, but
which is not a Multiemployer Plan.
“Site”: all
or any portion of the Real Estate. The Site includes, without
limitation, the Xxxx Home Site Land (until such time (if ever) as such Property
has been Disposed of in accordance with Section 7.5(j)), the Golf Course Land
(until such time (if ever) as such Property has been Disposed of in accordance
with Section 7.5(k) or released pursuant to Section 10.22 or distributed
pursuant to Section 7.6), the Home Site Land (until such time (if ever) as such
Property has been Disposed of in accordance with Section 7.5(l)) and any other
Property which is subject to a Lien under any Mortgage (in each such case, until
such Property is Disposed of and released from the Lien of the Security
Documents in accordance with this Agreement.)
“Site
Easements”: the easements appurtenant, easements in gross,
license agreements and other rights running for the benefit of the Borrower or
any other Loan Party and/or appurtenant to the Site, including, without
limitation, those certain easements and licenses described in the Title
Policies.
“Solvent”: when
used with respect to any Person, as of any date of determination, (a) the
amount of the “present fair saleable value” of the assets of such Person will,
as of such date, exceed the amount of all “liabilities of such Person,
contingent or otherwise”, as of such date, as such quoted terms are determined
in accordance with applicable federal and state laws governing determinations of
the insolvency of debtors, (b) the present fair saleable value of the assets of
such Person will, as of such date, be greater than the amount that will be
required to pay the liability of such Person on its debts as such debts become
absolute and matured, (c) such Person will not have, as of such date, an
unreasonably small amount of capital with which to conduct its business and (d)
such Person will be able to pay its debts as they mature. For
purposes of this definition, (i) “debt” means liability on a “claim” and (ii)
“claim” means any (x) right to payment, whether or not such a right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is
48
reduced
to judgment, fixed, contingent, matured or unmatured, disputed, undisputed,
secured or unsecured.
“Specified Hedge
Agreement”: any Hedge Agreement (a) entered into by
(i) the Borrower and (ii) any Lender or any affiliate thereof, or any
Person that was a Lender or an affiliate thereof when such Hedge Agreement was
entered into, as counterparty and (b) which has been designated by such Lender
and the Borrower, by notice to the Administrative Agent not later than 90 days
after the execution and delivery thereof by the Borrower, as a Specified Hedge
Agreement; provided, that the
designation of any Hedge Agreement as a Specified Hedge Agreement shall not
create in favor of any Lender or affiliate thereof that is a party thereto any
rights in connection with the management or release of any Collateral or of the
obligations of any Guarantor under the Guarantee.
“Stockholders
Agreement”: that certain Stockholders Agreement, dated as of
April 11, 2002, by and among Xx. Xxxx, Xxxxx Asset Fund and Aruze USA, as
in effect on the Closing Date.
“Stop Funding
Notice”: as defined in the Disbursement
Agreement.
“Subordinated
Debt”: Indebtedness of any Loan Party that (a) does not have
any scheduled principal payment, mandatory principal prepayment, sinking fund
payment or similar payment due prior to the Scheduled Term B Loan Termination
Date, (b) is not secured by any Lien on any Property, (c) is subordinated on
terms and conditions reasonably satisfactory to the Majority Initial Lending
Institutions and (d) is subject to such covenants and events of default as may
be reasonably acceptable to the Majority Initial Lending
Institutions.
“Subordinated Intercompany
Note”: the Intercompany Subordinated Demand Promissory Note
dated as of the Closing Date among the Borrower, each of the other Loan Parties
and the Administrative Agent.
“Subsidiary”: as
to any Person, a corporation, partnership, limited liability company or other
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the directors, managers or trustees of such corporation, partnership, limited
liability company or other entity are at the time owned, or the management of
which is otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise qualified,
all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall
refer to a Subsidiary or Subsidiaries of the Borrower.
“Substitute
Lender”: as defined in Section 10.13(a).
“Swing Line
Commitment”: the obligation of the Swing Line Lender to make
Swing Line Loans pursuant to Section 2.6 in an aggregate principal amount at any
one time outstanding not to exceed $25,000,000.
49
“Swing Line Credit Commitment
Period”: the period from and including the Phase I Opening
Date to the Revolving Credit 2 Termination Date.
“Swing Line
Lender”: Deutsche Bank Trust Company Americas, in its capacity
as the lender of Swing Line Loans.
“Swing Line
Loans”: as defined in Section 2.6.
“Swing Line
Notes”: as defined in Section 2.8(e).
“Swing Line Participation
Amount”: as defined in Section 2.7(c).
“Syndication
Agent”: Bank of America, N.A., in its capacity as syndication
agent.
“Synthetic Lease
Obligations”: all monetary obligations of a Person under
(a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations
which do not appear on the balance sheet of such Person but which, upon the
insolvency or bankruptcy of such Person, would be characterized as the
Indebtedness of such Person (without regard to accounting
treatment). The amount of Synthetic Lease Obligations in respect of
any synthetic lease at any date of determination thereof shall be equal to the
aggregate purchase price of any property subject to such lease less the
aggregate amount of payments of rent theretofore made which reduce the lessee’s
obligations under such synthetic lease and which are not the financial
equivalent of interest.
“Taking”: a
taking or voluntary conveyance during the term of this Agreement of all or part
of any Mortgaged Property, or any interest therein or right accruing thereto or
use thereof, as the result of, or in settlement of, any condemnation or other
eminent domain proceeding by any Governmental Authority affecting a Mortgaged
Property or any portion thereof, whether or not the same shall have actually
been commenced.
“Tax
Amount”: with respect to any period, (a) in the case of
any direct or indirect member of a Loan Party that is a Pass Through Entity, the
Presumed Tax Liability of such direct or indirect member and (b) with
respect to any of the Loan Parties that are Consolidated Members, the aggregate
federal income tax liability such Loan Parties would owe for such period if each
was a corporation filing federal income tax returns on a stand alone basis at
all times during its existence and, if any of the Consolidated Members files a
consolidated or combined state income tax return such that it is not paying its
own state income taxes, then Tax Amount shall also include the aggregate state
income tax liability such Consolidated Members would have paid for such period
if each was a corporation filing state income tax returns on a stand alone basis
at all times during its existence.
“Taxable
Income”: with respect to any Person for any period, the
taxable income or loss of such Person for such period for federal income tax
purposes as a result of such Person’s equity ownership of one or more Loan
Parties that are Pass Through Entities for such period; provided, however, that all items of income,
gain, loss or deduction required
50
to
be stated separately pursuant to Section 703(a)(1) of the Code shall be
included in taxable income or loss.
“Term B Loan
Commitment”: as to any Term B Loan Lender, the obligation of
such Lender, if any, to make a Term B Loan to the Borrower hereunder in a
principal amount not to exceed the amount set forth under the heading “Term B
Loan Commitment” opposite such Lender’s name on Annex B hereto or, as the case
may be, in the Assignment and Acceptance pursuant to which such Lender became a
party hereto, as the same may be changed from time to time pursuant to the terms
hereof.
“Term B Loan Extensions of
Credit”: as to any Term B Loan Lender at any time, the
aggregate principal amount of all Term B Loans made by such Lender then
outstanding.
“Term B Loan
Facility”: the Term B Loan Commitments and the Term B Loans made
thereunder.
“Term B Loan
Lender”: each Lender that has a Term B Loan Commitment or is
the holder of a Term B Loan.
“Term B Loan Termination
Date”: the earlier of (a) the Scheduled Term B Loan
Termination Date and (b) the date on which the Loans become due and payable
pursuant to Section 8.
“Term B
Loans”: as defined in Section 2.1.
“Term B
Notes”: as defined in Section 2.8(e).
“Term Loan
Commitment”: the Term B Loan Commitment or the New Term Loan
Commitment of a Lender, and “Term Loan
Commitments” shall mean such commitments of all Lenders.
“Term Loan
Lenders”: a Term B Loan Lender or a New Term Loan
Lender.
“Term
Loans”: a Term B Loan or a New Term Loan.
“Title Insurance
Company”: collectively, Commonwealth Land Title Company and
such other title insurance companies that have issued Title Policies to the
Collateral Agent on behalf of the Lenders in connection with or related to any
Mortgage.
“Title
Policies”: collectively, the policies of title insurance
issued by the Title Insurance Company with respect to the
Mortgages.
“Total Extensions of
Credit”: at any time, the sum of (a) the Total Revolving
Extensions of Credit and (b) the Total Term Loan Extensions of
Credit.
51
“Total Initial Lending
Institution Revolving Credit Commitments”: at any time, the
aggregate amount of the Revolving Credit Commitments then in effect and held by
the Initial Lending Institutions or their Affiliates.
“Total Initial Lending
Institution Revolving Extensions of Credit”: at any time, the
aggregate amount of the Revolving Extensions of Credit of the Revolving Credit
Lenders outstanding at such time and held by the Initial Lending Institutions or
their Affiliates.
“Total Initial Lending
Institution Term B Loan Commitments”: at any time, the
aggregate amount of the Term B Loan Commitments then in effect and held by the
Initial Lending Institutions or their Affiliates.
“Total Initial Lending
Institution Term B Loan Extensions of Credit”: at any time,
the aggregate amount of the Term B Loan Extensions of Credit of the Term B Loan
Lenders outstanding at such time and held by the Initial Lending Institutions or
their Affiliates.
“Total New Term Loan
Commitments”: at any time, the aggregate amount of the New
Term Loan Commitments then in effect.
“Total New Term Loan
Extensions of Credit”: at any time, the aggregate amount of
the New Term Loan Extensions of Credit of the New Term Loan Lenders outstanding
at such time.
“Total Revolving 1 Extensions
of Credit”: at any time, the aggregate amount of the Revolving
1 Extensions of Credit of the Revolving Credit 1 Lenders outstanding at such
time.
“Total Revolving 2 Extensions
of Credit”: at any time, the aggregate amount of the Revolving
2 Extensions of Credit of the Revolving Credit 2 Lenders outstanding at such
time.
“Total Revolving Credit 1
Commitments”: at any time, the aggregate amount of the
Revolving Credit 1 Commitments then in effect; provided, that the
amount of the Total Revolving Credit 1 Commitments on the Fourth Amendment
Effective Date, after giving effect to the Fourth Amendment, shall be
$87,000,000.
“Total Revolving Credit 2
Commitments”: at any time, the aggregate amount of the
Revolving Credit 2 Commitments then in effect; provided, that the
amount of the Total Revolving Credit 2 Commitments on the Fourth Amendment
Effective Date, after giving effect to the Fourth Amendment, shall be
$609,750,000.
“Total Revolving Credit
Commitments”: at any time, the sum of the Total Revolving
Credit 1 Commitments and the Total Revolving Credit 2 Commitments.
52
“Total Revolving Extensions
of Credit”: at any time, the sum of the Total Revolving 1
Extensions of Credit and Total Revolving 2 Extensions of Credit at such
time.
“Total Term B Loan
Commitments”: at any time, the aggregate amount of the Term B
Loan Commitments then in effect; provided, that the
amount of the Total Term B Loan Commitments on the Amended and Restated
Effective Date shall be $225,000,000.
“Total Term B Loan Extensions
of Credit”: at any time, the aggregate amount of the Term B
Loan Extensions of Credit of the Term B Loan Lenders outstanding at such
time.
“Total Term Loan Extensions
of Credit”: at any time, the aggregate amount of the Term B
Loan Extensions of Credit and the New Term Loan Extensions of Credit of
outstanding at such time.
“Transferee”: as
defined in Section 10.15.
“Type”: as
to any Loan, its nature as a Base Rate Loan or a Eurodollar Loan.
“UCC”: the
Uniform Commercial Code (or any similar or equivalent legislation), as in effect
from time to time in any applicable jurisdiction.
“Voting
Stock”: with respect to any Person as of any date, the Capital
Stock of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
“Weighted Average Life to
Maturity”: when applied to any Indebtedness at any date, the
number of years obtained by dividing:
(a) the
sum of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one—twelfth) that will elapse
between such date and the making of such payment; by
(b) the
then outstanding principal amount of such Indebtedness.
“Wholly Owned
Subsidiary”: as to any Person, any other Person all of the
Capital Stock of which (other than directors’ qualifying shares required by law)
is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.
“Withdrawal
Period”: as defined in Section 10.13(b).
“World
Travel”: World Travel, LLC, a Nevada limited liability
company.
53
“Wynn
Asia”: Xxxx Group Asia, Inc., a Nevada
corporation.
“Wynn
Design”: Xxxx Design & Development, LLC, a Nevada limited
liability company.
“Xxxx
Golf”: Xxxx Golf, LLC, a Nevada limited liability
company.
“Xxxx Golf Indemnity
Agreement”: the Indemnity Agreement, dated as of the Closing
Date, by Xxxx Golf in favor of the Administrative Agent.
“Xxxx Golf
Mortgage”: the Deed of Trust, Assignment of Rents and Leases,
Security Agreement and Fixture Filing, dated as of the Closing Date, made by
Xxxx Golf to Nevada Title Company, a Nevada corporation, as trustee, for the
benefit of the Collateral Agent, as amended by the certain First Amendment to
Multiple Deeds of Trust, Leasehold Deed of Trust, Assignments of Rents and
Leases, Security Agreement and Fixture Filings, dated as of the Amendment and
Restated Effective Date.
“Xxxx Home Site
Land”: an approximately two-acre tract of land located on the
Golf Course Land where Xx. Xxxx’x personal residence may be built, after
Disposition of the Xxxx Home Site Land in accordance with Section
7.5(j).
“Wynn IP
Agreement”: the Intellectual Property License Agreement, dated
as of the Closing Date, among Xxxx Resorts Holdings, Wynn Resorts and
the Borrower.
“Xxxx
Macau”: Xxxx Resorts (Macau), S.A., a company organized under
the laws of Macau.
“Wynn
Resorts”: Wynn Resorts, Limited, a Nevada
corporation.
“Xxxx Resorts
Holdings”: Xxxx Resorts Holdings, LLC, a Nevada limited
liability company.
“Wynn
Sunrise”: Wynn Sunrise, LLC, a Nevada limited liability
company.
“Wynn Sunrise Indemnity
Agreement”: the Indemnity Agreement, dated as of the Closing
Date, by Wynn Sunrise in favor of the Administrative Agent.
“Xxxx Sunrise
Mortgage”: the Deed of Trust, Assignment of Rents and Leases,
Security Agreement and Fixture Filing, dated as of the Closing Date, made by
Wynn Sunrise to Nevada Title Company, a Nevada corporation, as trustee, for the
benefit of the Collateral Agent, as amended by the certain First Amendment to
Multiple Deeds of Trust, Leasehold Deed of Trust, Assignments of Rents and
Leases, Security Agreement and Fixture Filings, dated as of the Amendment and
Restated Effective Date.
“2010
Notes”: the 12% Mortgage Notes due 2010 issued by the Borrower
and Capital Corp. pursuant to the 2010 Notes Indenture.
54
“2010 Notes
Indenture”: that certain Indenture, dated as of October 30,
2002, among the Borrower, Capital Corp., certain guarantors named therein and
the 2010 Notes Indenture Trustee, as supplemented by that certain First
Supplemental Indenture, dated as of the Closing Date.
“2010 Notes Indenture
Trustee”: Xxxxx Fargo Bank, National Association in its
capacity as the trustee under the 2010 Notes Indenture and its successors in
such capacity.
“2010 Notes Satisfaction
Proceeds”: all cash and securities (and any account or trust
arrangement in which such cash and securities are held) delivered to the 2010
Notes Indenture Trustee in accordance with Section 12.01 of the 2010 Notes
Indenture on the Closing Date.
“2014
Noteholders”: the holders of the 2014 Notes from time to
time.
“2014
Notes”: the 6 5/8% Mortgage Notes due 2014 issued by the
Borrower and Capital Corp. pursuant to the 2014 Notes Indenture (including any
Additional 2014 Notes) and any exchange notes related thereto as contemplated by
the 2014 Notes Indenture.
“2014 Notes Debt
Service”: for any period, (a) all fees payable during such
period to the 2014 Notes Indenture Trustee and the 2014 Noteholders under the
2014 Notes Indenture and related agreements, documents and instruments and (b)
interest on the 2014 Notes payable during such period.
“2014 Notes
Indenture”: that certain Indenture, dated as of the Closing
Date, between the Borrower, Capital Corp., certain guarantors named therein and
the 2014 Notes Indenture Trustee, as supplemented by that certain First
Supplemental Indenture, dated as of June 29, 2005, and by that certain Second
Supplemental Indenture, dated as of July 29, 2005.
“2014 Notes Indenture
Trustee”: U.S. Bank National Association in its capacity as
the trustee under the 2014 Notes Indenture and its successors in such
capacity.
“2014 Notes Proceeds
Account”: as defined in the Disbursement
Agreement.
1.2 Other Definitional
Provisions.
(a) Unless
otherwise specified therein, all terms defined in this Agreement shall have the
defined meanings when used in the other Loan Documents or any certificate or
other document made or delivered pursuant hereto or thereto.
(b) As
used herein and in the other Loan Documents, and any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms relating
to the Borrower and the other Loan Parties not defined in Section 1.1 and
accounting terms partly defined in Section 1.1, to the extent not defined, shall
have the respective meanings given to them under GAAP.
55
(c) The
words “hereof”, “herein” and “hereunder” and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Section, Annex, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(d) The
meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
(e) The
expressions “payment in full,” “paid in full” and any other similar terms or
phrases when used herein with respect to the Obligations shall mean the payment
in full, in immediately available funds, of all of the Obligations.
(f) The
words “including” and “includes” and words of similar import when used in this
Agreement shall not be limiting and shall mean “including without limitation” or
“includes without limitation”, as the case may be.
(g) The
words “will” and “shall” and words of similar import when used in this Agreement
shall mean a command.
(h) (i) In
the event that any defined terms used herein or in any other Loan Document
having meanings given to such terms in the Disbursement Agreement are no longer
defined in the Disbursement Agreement on and after the Amended and Restated
Disbursement Agreement Effective Date, then such terms shall have the meanings
given to such terms in the Disbursement Agreement as in effect immediately prior
to the Amended and Restated Disbursement Agreement Effective Date.
(ii) Upon
termination of the Disbursement Agreement, any defined terms used herein or in
any other Loan Document having meanings given to such terms in the Disbursement
Agreement shall continue to have the meanings given to such terms in the
Disbursement Agreement immediately prior to such termination (whether by
reference to the Disbursement Agreement as then in effect or, if clause (h)(i)
above is applicable, as in effect immediately prior to the Amended and Restated
Disbursement Agreement Effective Date), at which time such terms shall be
incorporated herein by reference as if specifically set forth
herein.
(i) Unless
expressly described to the contrary, references to any document, instrument or
agreement (i) shall include all exhibits, schedules and other attachments
thereto, (ii) shall include all documents, instruments or agreements issued
or executed in replacement thereof and (iii) shall mean such document,
instrument or agreement, or replacement or predecessor thereto, as amended,
amended and restated, supplemented or otherwise modified (or reaffirmed by any
reaffirmation agreement or other agreement) from time to time and in effect at
the time of determination.
1.3 Certain Financial
Calculations.
(a) For
purposes of Section 7.1(a) only, prior to the Initial Phase II Calculation Date,
Consolidated Total Debt, as used in the calculation of the Consolidated Leverage
Ratio pursuant thereto, shall equal the Consolidated Total Debt as of the
applicable Quarterly Date less the aggregate amount of all Project Costs for the
Phase II Project expended
56
on
or prior to such Quarterly Date other than any such Project Costs paid with the
proceeds of any capital contributions from Wynn Resorts or its
Affiliates. Any proceeds of the 2014 Notes applied on the Closing
Date in order to consummate the Refinancing Transaction and any proceeds of the
Senior Unsecured Debt and the Additional 2014 Notes applied on the date of
issuance thereof to transaction costs related thereto shall not be deemed to be
Project Costs with respect to the Phase II Project.
(b) For
purposes of calculating the Consolidated Leverage Ratio and the Consolidated
Interest Coverage Ratio for all purposes including ECF Percentage, financial
covenant calculations pursuant to Sections 7.1(b) and 7.1(c), permitted
Dispositions in accordance with Section 7.5(k), payment of Management Fees in
accordance with Section 7.22 and the Pricing Grid, for any four full fiscal
quarter period ending on each of the Initial Phase II Calculation Date and each
of the first two Quarterly Dates thereafter, the Consolidated EBITDA of the
Borrower, as used in such calculations of the Consolidated Leverage Ratio and
the Consolidated Interest Coverage Ratio, shall be calculated on an annualized
basis, taking into consideration only Consolidated EBITDA attributable to
periods beginning on the first day of the fiscal quarter beginning immediately
after the Phase II Opening Date and not taking into consideration any
Consolidated EBITDA attributable to periods prior to the fiscal quarter of the
Borrower beginning immediately after the Phase II Opening Date.
SECTION
2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term B Loan
Commitments. As
of the Amended and Restated Effective Date, each Term B Loan Lender has made
term loans (“Term B
Loans”) to the Borrower in an aggregate principal amount equal to the
amount of the Term B Loan Commitment of such Lender. The Term B Loans
may from time to time be Eurodollar Loans or Base Rate Loans, as determined by
the Borrower and notified to the Administrative Agent in accordance with
Sections 2.5 and 2.13. Term B Loans borrowed and subsequently
repaid or prepaid may not be reborrowed. As of the Amended and
Restated Effective Date, the Term B Loan Commitments shall be deemed
terminated.
2.2 Scheduled Amortization of
Term B Loans. The
Borrower shall make principal payments on the Term B Loans on amortization dates
in the amounts set forth below opposite the applicable amortization
date:
Amortization
Date
|
Scheduled
Repayment
of
Term B Loans
|
September
30, 2012
|
$112,500,000
|
Scheduled
Term B Loan Termination Date
|
$112,500,000
|
provided, that the
scheduled installments of principal of the Term B Loans set forth above shall be
reduced in connection with any Permitted Loan Repurchase and any voluntary or
mandatory prepayments of the Term Loans in accordance with Sections 2.11,
2.12 and 2.18; and provided, further that the Term
B Loans and all other amounts owed hereunder with respect to the Term B
57
Loans
shall be paid in full no later than the Term B Loan Termination Date, and the
final installment payable by the Borrower in respect of the Term B Loans on such
date shall be in an amount sufficient to repay all amounts owing by the Borrower
under this Agreement with respect to the Term B Loans.
2.3 Revolving Credit
Commitments.
(a) Subject
to the terms and conditions hereof, and in reliance upon the representations and
warranties of the Borrower herein set forth and, while in effect, the
representations and warranties set forth in the Disbursement Agreement, each
Revolving Credit 1 Lender severally agrees to make revolving credit loans
(“Revolving Credit 1
Loans”) to the Borrower from time to time during the Revolving Credit 1
Commitment Period in an aggregate principal amount at any one time outstanding
which does not exceed the amount of such Lender’s Revolving Credit 1
Commitment. During the Revolving Credit 1 Commitment Period the
Borrower may use the Revolving Credit 1 Commitments by borrowing, prepaying the
Revolving Credit 1 Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof. The Revolving Credit 1 Loans
may from time to time be Eurodollar Loans or Base Rate Loans, as determined by
the Borrower and notified to the Administrative Agent in accordance with
Sections 2.5 and 2.13, provided that no
Revolving Credit 1 Loan shall be made as a Eurodollar Loan after the day that is
one month prior to the Scheduled Revolving Credit 1 Termination
Date.
(b) Subject
to the terms and conditions hereof, and in reliance upon the representations and
warranties of the Borrower herein set forth and, while in effect, the
representations and warranties set forth in the Disbursement Agreement, each
Revolving Credit 2 Lender severally agrees to make revolving credit loans
(“Revolving Credit 2
Loans”) to the Borrower from time to time during the Revolving Credit 2
Commitment Period in an aggregate principal amount at any one time outstanding
which, when added to such Lender’s Revolving Credit 2 Percentage of the sum of
(i) the L/C Obligations then outstanding and (ii) the aggregate principal amount
of the Swing Line Loans then outstanding, does not exceed the amount of such
Lender’s Revolving Credit 2 Commitment. During the Revolving Credit 2
Commitment Period the Borrower may use the Revolving Credit 2 Commitments by
borrowing, prepaying the Revolving Credit 2 Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions
hereof. The Revolving Credit 2 Loans may from time to time be
Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified
to the Administrative Agent in accordance with Sections 2.5 and 2.13, provided that no
Revolving Credit 2 Loan shall be made as a Eurodollar Loan after the day that is
one month prior to the Scheduled Revolving Credit 2 Termination
Date.
2.4 INTENTIONALLY
OMITTED.
2.5 Procedure for
Borrowing.
(a) Prior
to (i) with respect to the Phase I Project, the Phase I Final Completion Date,
and (ii) with respect to the Phase II Project, the earlier of the Phase II Final
Completion Date and the Amended and Restated Disbursement Agreement Effective
Date, the Borrower shall have the right to borrow Loans, the proceeds of which
shall be used to pay
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Project
Costs for the Phase I Project or the Phase II Project, as the case may
be. If the Borrower desires that Lenders make such Loans, the
Borrower shall comply with Section 2.3 of the Disbursement
Agreement. Notwithstanding any provisions of the Disbursement
Agreement to the contrary, each Notice of Advance Request must be received by
the Administrative Agent prior to 12:00 Noon, New York City time, at least three
Business Days prior to the requested Borrowing Date (in the case of Eurodollar
Loans or Base Rate Loans) and must specify (w) whether the requested borrowing
is of New Term Loans, if any, or Revolving Credit Loans, (x) the amount and Type
of Loans to be borrowed, (y) the requested Borrowing Date and (z) in the case of
Eurodollar Loans, the length of the initial Interest Period
therefor. Upon receipt of any Notice of Advance Request, the
Administrative Agent shall promptly notify each New Term Loan Lender and/or
Revolving Credit Lender, as appropriate, thereof. Each such Lender
will make the amount of its pro rata share of each
borrowing available to the Administrative Agent at the Funding Office prior to
10:00 A.M., New York City time, on the Borrowing Date requested by the Borrower
in immediately available Dollars. Such borrowing will then, upon
satisfaction or waiver of the conditions precedent specified in Section 5.2, be
deposited by the Administrative Agent, in immediately available Dollars, into
the Company’s Concentration Account no later than 12:00 Noon, New York City
time, on the applicable Borrowing Date.
(b) The
Borrower shall have the right to borrow Loans, the proceeds of which are to be
used (i) if prior to the Amended and Restated Disbursement Agreement Effective
Date, for purposes permitted hereby other than the payment of Project Costs and
(ii) if on or after the Amended and Restated Disbursement Agreement Effective
Date, for working capital needs and general corporate purposes (including the
payment of Project Costs). If the Borrower desires that Lenders make
Loans described in this Section 2.5(b), the Borrower shall give the
Administrative Agent irrevocable notice in a Notice of Borrowing (which Notice
of Borrowing must be received by the Administrative Agent prior to 12:00 Noon,
New York City time, at least (A) three Business Days prior to the requested
Borrowing Date, in the case of Eurodollar Loans, or (B) one Business Day prior
to the requested Borrowing Date, in the case of Base Rate Loans), specifying (w)
whether the requested borrowing is of New Term Loans, if any, Revolving Credit 1
Loans or Revolving Credit 2 Loans, (x) the amount and Type of Loans to be
borrowed, (y) the requested Borrowing Date and (z) in the case of Eurodollar
Loans, the length of the initial Interest Period therefor. Upon
receipt of any such Notice of Borrowing from the Borrower, the Administrative
Agent shall promptly notify each New Term Loan Lender, Revolving Credit 1 Lender
and/or Revolving Credit 2 Lender thereof. Each such Lender will make
the amount of its pro rata share of each
borrowing available to the Administrative Agent for the account of the Borrower
at the Funding Office prior to 12:00 Noon, New York City time, on the Borrowing
Date requested by the Borrower in immediately available Dollars. Such
borrowing will then, upon satisfaction or waiver of the conditions precedent
specified in Section 5.3, be made available to the Borrower by the
Administrative Agent depositing into (which may take the form of crediting) a
Funding Account of the Borrower (as directed by the Borrower) with the aggregate
of the amounts made available to the Administrative Agent by the Lenders in
immediately available Dollars.
(c) Notwithstanding
the foregoing, to the extent any Loans are made hereunder in accordance with
Section 5.4(a) on the Amended and Restated Effective Date (including for
purposes of payment of fees and expenses in connection the amendment and
restatement of the Original Credit Agreement), (i) such Loans shall be deemed
requested
59
pursuant
to Section 2.5(b)(i), (ii) such Loans shall be deemed not be Advances and (iii)
the proceeds of such Loans shall be deemed applied to non-Project
Costs.
(d) Each
borrowing under the Revolving Credit 1 Commitments or Revolving Credit 2
Commitments shall be in a principal amount of (A) in the case of Base Rate
Loans, $5,000,000 or whole multiples of $5,000,000 in excess thereof, and (B) in
the case of Eurodollar Loans, $10,000,000 or whole multiples of $1,000,000 in
excess thereof (or, in the case of the preceding clauses (A) and (B), if the
then aggregate Available Revolving Credit 1 Commitments or Available Revolving
Credit 2 Commitments, as applicable, are less than $5,000,000 or a whole
multiple of $5,000,000 in excess thereof or $10,000,000 or a whole multiple of
$1,000,000 in excess thereof, respectively, such lesser amount); provided, that the
Swing Line Lender may request, on behalf of the Borrower, borrowings under the
Revolving Credit 2 Commitments which are Base Rate Loans in other amounts
pursuant to Section 2.7. In the event the Borrower is unable to
borrow an amount of Loans requested in any Notice of Advance Request pursuant to
subsection (a) above due to the limitations of this subsection, such request for
Loans shall be deemed to be in an amount equal to the next higher minimum amount
of Loans (of the same Type as those originally requested) otherwise permitted to
be drawn under this subsection.
(e) In
the event that the Administrative Agent receives a Stop Funding Notice from the
Disbursement Agent prior to the Amended and Restated Disbursement Agreement
Effective Date in accordance with and pursuant to the terms of the Disbursement
Agreement, none of the Administrative Agent and the Lenders shall, or shall have
any obligation to, advance the Loans associated with such Stop Funding Notice;
provided, however, that the
Borrower shall be obligated to make any payments due pursuant to Section 2.21 as
a result thereof. The Administrative Agent shall notify each relevant
Lender promptly upon receipt of any Stop Funding Notice, but shall bear no
liability to any Lender if, despite the receipt of such Stop Funding Notice, any
Lender makes available any money to the Administrative Agent in respect of the
requested Loans. In such event, the Administrative Agent shall refund
the amount received by it as promptly as possible and in any event by the
following Business Day.
2.6 Swing Line
Commitment. Subject
to the terms and conditions hereof, the Swing Line Lender agrees to make
available to the Borrower a portion of the credit otherwise available to the
Borrower under the Revolving Credit 2 Commitments from time to time during the
Swing Line Credit Commitment Period by making swing line loans (“Swing Line Loans”) to
the Borrower; provided, that (a)
the aggregate principal amount of Swing Line Loans outstanding at any time shall
not exceed the Swing Line Commitment then in effect (notwithstanding that the
Swing Line Loans outstanding at any time, when aggregated with the Swing Line
Lender’s other outstanding Revolving Credit Loans hereunder, may exceed the
Swing Line Commitment then in effect) and (b) the Borrower shall not request,
and the Swing Line Lender shall not make, any Swing Line Loan if, after giving
effect to the making of such Swing Line Loan, the aggregate amount of the
Available Revolving Credit 2 Commitments would be less than
zero. During the Swing Line Credit Commitment Period, the Borrower
may use the Swing Line Commitment by borrowing, repaying and reborrowing, all in
accordance with the terms and conditions hereof. Swing Line Loans
shall be Base Rate Loans only. The Borrower may at any time and from
time to time prepay all or any portion of the outstanding Swing Line Loans in
accordance with Section 2.11.
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2.7 Procedure for Swing Line
Borrowing; Refunding of Swing Line Loans.
(a) Whenever
the Borrower desires that the Swing Line Lender make Swing Line Loans (the
proceeds of which shall be used for purposes permitted hereby other than the
payment of Project Costs), it shall give the Swing Line Lender irrevocable
telephonic notice confirmed promptly in writing (which telephonic notice must be
received by the Swing Line Lender not later than 1:00 P.M., New York City time,
on the proposed Borrowing Date), specifying (i) the amount to be borrowed and
(ii) the requested Borrowing Date. Each borrowing under the Swing
Line Commitment shall be in a principal amount equal to $500,000 or a $100,000
multiple in excess thereof. Not later than 3:00 P.M., New York City
time, on the Borrowing Date specified in a notice in respect of Swing Line
Loans, the Swing Line Lender shall make available to the Administrative Agent at
the Funding Office an amount in immediately available funds equal to the amount
of the Swing Line Loan to be made by the Swing Line Lender; provided, that the
Swing Line Lender shall not be obligated to make any Swing Line Loans at a time
when a Lender Default exists unless the Swing Line Lender has entered into
arrangements satisfactory to it to eliminate the Swing Line Lender’s risk with
respect to such Lenders’ participation in such Swing Line Loans. The
Administrative Agent shall make the proceeds of such Swing Line Loan available
in immediately available Dollars to the Borrower on such Borrowing Date by
depositing such proceeds in the Company’s Concentration Account on such Borrowing
Date.
(b) The
Swing Line Lender, at any time and from time to time in its sole and absolute
discretion may, on behalf of the Borrower (which hereby irrevocably authorizes
the Swing Line Lender to act on its behalf), on one Business Day’s notice given
by the Swing Line Lender no later than 12:00 Noon, New York City time, request
each Revolving Credit 2 Lender to make, and each Revolving Credit 2 Lender
hereby agrees to make, a Revolving Credit 2 Loan, in an amount equal to such
Revolving Credit 2 Lender’s Revolving Credit 2 Percentage of the aggregate
amount of the Swing Line Loans (the “Refunded Swing Line
Loans”) outstanding on the date of such notice, to repay the Swing Line
Lender. The Swing Line Lender shall notify the Borrower of any such
request as soon as is reasonably practicable. Each Revolving Credit 2
Lender shall make the amount of such Revolving Credit 2 Loan available to the
Administrative Agent at the Funding Office in immediately available funds, not
later than 10:00 A.M., New York City time, one Business Day after the date of
such notice. The proceeds of such Revolving Credit 2 Loans shall be
immediately made available by the Administrative Agent to the Swing Line Lender
for application by the Swing Line Lender to the repayment of the Refunded Swing
Line Loans. The Borrower irrevocably authorizes the Swing Line Lender
to charge the Borrower’s accounts with the Administrative Agent (up to the
amount available in each such account) in order to immediately pay the amount of
such Refunded Swing Line Loans to the extent amounts received from the Revolving
Credit 2 Lenders are not sufficient to repay in full such Refunded Swing Line
Loans, and the Administrative Agent shall provide the Borrower notice of any
such action.
(c) If
prior to the time a Revolving Credit 2 Loan would have otherwise been made
pursuant to Section 2.7(b), one of the events described in Section 8(f) shall
have occurred and be continuing with respect to the Borrower or if for any other
reason, as determined by the Swing Line Lender in its sole discretion, Revolving
Credit 2 Loans may not be made as contemplated by Section 2.7(b), each Revolving
Credit 2 Lender shall, on the date
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such
Revolving Credit 2 Loan was to have been made pursuant to the notice referred to
in Section 2.7(b) (the “Refunding Date”),
purchase for cash an undivided participating interest in the then outstanding
Swing Line Loans by paying to the Swing Line Lender an amount (the “Swing Line Participation
Amount”) equal to (i) such Revolving Credit 2 Lender’s Revolving Credit 2
Percentage times (ii) the sum of
the aggregate principal amount of Swing Line Loans then outstanding which were
to have been repaid with such Revolving Credit 2 Loans.
(d) Whenever,
at any time after the Swing Line Lender has received from any Revolving Credit 2
Lender such Lender’s Swing Line Participation Amount, the Swing Line Lender
receives any payment on account of the Swing Line Loans, the Swing Line Lender
will distribute to such Revolving Credit 2 Lender its Swing Line Participation
Amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Revolving Credit 2 Lender’s participating
interest was outstanding and funded and, in the case of principal and interest
payments, to reflect such Revolving Credit 2 Lender’s pro rata portion of such
payment if such payment is not sufficient to pay the principal of and interest
on all Swing Line Loans then due); provided, however, that in the
event that such payment received by the Swing Line Lender is required to be
returned, such Revolving Credit 2 Lender will return to the Swing Line Lender
any portion thereof previously distributed to it by the Swing Line
Lender.
(e) Each
Revolving Credit 2 Lender’s obligation to make the Loans referred to in Section
2.7(b) and to purchase participating interests pursuant to Section 2.7(c) shall
be absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any setoff, counterclaim, recoupment, defense
or other right which such Revolving Credit 2 Lender or the Borrower may have
against the Swing Line Lender, the Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the other conditions specified in
Section 5; (iii) any adverse change in the condition (financial or
otherwise) of the Borrower or any other Person; (iv) any breach of this
Agreement or any other Loan Document by the Borrower or any other Person
(including, without limitation, any other Revolving Credit 2 Lender); (v) any
reduction or termination of the Commitments; or (vi) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing, and each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
2.8 Repayment of Loans; Evidence
of Indebtedness.
(a) The
Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of the Swing Line Lender, the appropriate Revolving Credit Lender,
the appropriate Term B Loan Lender or the appropriate New Term Loan Lender, as
the case may be, (i) the then unpaid principal amount of each Revolving
Credit 1 Loan of such Revolving Credit Lender on the Revolving Credit 1
Termination Date and the then unpaid principal amount of each Revolving Credit 2
Loan of such Revolving Credit Lender on the Revolving Credit 2 Termination Date,
(ii) the then unpaid principal amount of each Swing Line Loan of the Swing Line
Lender on the Revolving Credit 2 Termination Date, (iii) the principal amount of
each Term B Loan of such Term B Loan Lender in installments according to the
amortization schedule set forth in Section 2.2 and the then unpaid principal
amount of each Term B Loan of such Term B Loan Lender on the Term B Loan
Termination Date and (iv) in the event
62
any
Series of New Term Loans are made, subject to Section 2.26(e), the principal
amount of each New Term Loan of such New Term Loan Lender in such Series on the
date set forth in the applicable Joinder Agreement and the then unpaid principal
amount of each New Term Loan of such Series on the New Term Loan Termination
Date of such Series. The Borrower hereby further agrees to pay
interest on the unpaid principal amount of the Loans from time to time
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in Section 2.15.
(b) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing indebtedness of the Borrower to such Lender resulting from
each Loan of such Lender from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time under this
Agreement.
(c) The
Administrative Agent, on behalf of the Borrower, shall maintain the Register
pursuant to Section 10.6(d), and a subaccount therein for each Lender, in which
shall be recorded (i) the amount of each Loan made hereunder and any Note
evidencing such Loan, the Type thereof and each Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii) both
the amount of any sum received by the Administrative Agent hereunder from the
Borrower and each Lender’s share thereof.
(d) The
entries made in the Register and the accounts of each Lender maintained pursuant
to Section 2.8(b) shall, to the extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations of the Borrower therein recorded in the
absence of manifest error; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
the Borrower by the Lenders in accordance with the terms of this
Agreement.
(e) The
Borrower agrees that, upon the request to the Administrative Agent by any
Lender, the Borrower will execute and deliver to such Lender a promissory note
of the Borrower evidencing any Term B Loans, Revolving Credit 1 Loans or Swing
Line Loans, as the case may be, of such Lender, substantially in the forms of
Exhibit G-1, G-2 or G-3 hereto, respectively, with appropriate insertions as to
date and principal amount (such notes, respectively, “Term B Notes”, “Revolving Credit 1
Notes” and “Swing Line Notes”) or
(i) in the case of New Term Loans, a promissory note of the Borrower
substantially in the form of the Term B Notes with such changes as may be
necessary or appropriate to reflect the terms and provisions of such New Term
Loans (such notes, “New Term Notes”), or
(ii) in the case of Revolving Credit 2 Loans, a promissory note of the Borrower
substantially in the form of the Revolving Credit 1 Notes with such changes as
may be necessary or appropriate to reflect the terms and provisions of such
Revolving Credit 2 Loans (such notes, “Revolving Credit 2
Notes”).
2.9 Commitment Fees,
etc.
(a) The
Borrower agrees to pay to the Administrative Agent for the account of each
Revolving Credit 1 Lender a commitment fee (the “Revolving 1 Commitment
63
Fee”) for the period
from and including the Fourth Amendment Effective Date to the last day of the
Revolving Credit 1 Commitment Period, computed at the Revolving 1 Commitment Fee
Rate on the average daily amount of the Available Revolving Credit 1 Commitment
of such Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and December and on the
Revolving Credit 1 Termination Date, commencing on the first of such dates to
occur on or after the Fourth Amendment Effective Date; provided, however, that any
Revolving 1 Commitment Fee accrued with respect to any of the Revolving Credit 1
Commitments of a Defaulting Lender during the period prior to the time such
Lender became a Defaulting Lender and unpaid at such time shall not be payable
by the Borrower so long as such Lender shall be a Defaulting Lender, except to
the extent that such Revolving 1 Commitment Fee shall otherwise have been due
and payable by the Borrower prior to such time; and provided, further, that no such
Revolving 1 Commitment Fee shall accrue on any of the Revolving Credit 1
Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting
Lender.
(b) The
Borrower agrees to pay to the Administrative Agent for the account of each
Revolving Credit 2 Lender a commitment fee (the “Revolving 2 Commitment
Fee”) for the period from and including the Fourth Amendment Effective
Date to the last day of the Revolving Credit 2 Commitment Period,
computed at the Revolving 2 Commitment Fee Rate on the average daily amount of
the Available Revolving Credit 2 Commitment of such Lender during the period for
which payment is made, payable quarterly in arrears on the last day of each
March, June, September and December and on the Revolving Credit 2 Termination
Date, commencing on the first of such dates to occur on or after the Fourth
Amendment Effective Date; provided, however, that any
Revolving 2 Commitment Fee accrued with respect to any of the Revolving Credit 2
Commitments of a Defaulting Lender during the period prior to the time such
Lender became a Defaulting Lender and unpaid at such time shall not be payable
by the Borrower so long as such Lender shall be a Defaulting Lender, except to
the extent that such Revolving 2 Commitment Fee shall otherwise have been due
and payable by the Borrower prior to such time; and provided, further, that no such
Revolving 2 Commitment Fee shall accrue on any of the Revolving Credit 2
Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting
Lender.
(c) The
Borrower agrees to pay to the Arrangers, the Managers and the Agents the fees in
the amounts and on the dates previously agreed to in writing by the Borrower,
the Arrangers, the Managers and the Agents including, without limitation,
pursuant to the Facility Fee Letter.
(d) The
Borrower agrees to pay to the Administrative Agent the fees in the amounts and
on the dates from time to time agreed to in writing by the Borrower and the
Administrative Agent including, without limitation, pursuant to the
Administrative Agent Fee Letter.
2.10 Termination or Reduction of
Revolving Credit Commitments. The
Borrower shall have the right, upon not less than three Business Days’ notice to
the Administrative Agent, to terminate the Revolving Credit 1 Commitments and/or
the Revolving Credit 2 Commitments or, from time to time, to reduce
the amount of the Revolving Credit 1 Commitments and/or the Revolving Credit 2
Commitments; provided, that no
such termination
64
or
reduction of Revolving Credit Commitments shall be permitted if after giving
effect thereto and to any prepayments of the Revolving Credit Loans and Swing
Line Loans made on the effective date thereof (a) the Total Revolving 1
Extensions of Credit would exceed the Total Revolving Credit 1 Commitments, (b)
the Total Revolving 2 Extensions of Credit would exceed the Total Revolving
Credit 2 Commitments or (c) if prior to the Phase II Final Completion Date, the
Project shall not be In Balance. Any such reduction of the Revolving
Credit 1 Commitments or Revolving Credit 2 Commitments, as applicable, shall be
in an amount equal to $5,000,000, or a whole multiple thereof (or, if less,
shall reduce the Revolving Credit 1 Commitments or the Revolving Credit 2
Commitments, as applicable, to zero), and shall reduce permanently the Revolving
Credit 1 Commitments and/or the Revolving Credit 2 Commitments, as applicable,
then in effect. The Borrower shall not reduce the amount of the Term
Loan Commitments.
2.11 Optional
Prepayments
. The
Borrower may at any time and from time to time prepay the Loans, in whole or in
part, without premium or penalty, upon irrevocable notice delivered to the
Administrative Agent at least three Business Days prior thereto in the case of
Eurodollar Loans and at least one Business Day prior thereto in the case of Base
Rate Loans, which notice shall (i) designate whether the Borrower is
prepaying Revolving Credit 1 Loans, Revolving Credit 2 Loans, and/or Term Loans
and (ii) specify the date and amount of prepayment and whether the
prepayment is of Eurodollar Loans or Base Rate Loans; provided, that if a
Eurodollar Loan is prepaid on any day other than the last day of the Interest
Period applicable thereto, the Borrower shall also pay any amounts owing
pursuant to Section 2.21. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender
thereof. If any such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein, together with
(except in the case of Revolving Credit 1 Loans or Revolving Credit 2 Loans
(unless all Revolving Credit 1 Loans or Revolving Credit 2 Loans, as applicable,
are being repaid and the Revolving Credit 1 Commitments or Revolving Credit 2
Commitments, as applicable, terminated) that are Base Rate Loans
and Swing Line Loans) accrued interest to such date on the amount
prepaid. Partial prepayments of Revolving Credit 1 Loans, Revolving
Credit 2 Loans and Term Loans, in each case, shall be in an aggregate principal
amount of $5,000,000 or a whole multiple thereof. Partial prepayments
of Swing Line Loans shall be in an aggregate principal amount of $100,000 or a
whole multiple thereof.
2.12 Mandatory Prepayments and
Commitment Reductions.
(a) If
any Indebtedness shall be incurred by the Borrower or any of the other Loan
Parties (excluding any Indebtedness permitted by Section 7.2 (other than with
respect to subsection (i) thereof)), an amount equal to 100% of the Net Cash
Proceeds thereof shall be applied within one Business Day of receipt by such
Person of such Net Cash Proceeds toward the prepayment of the Obligations in
accordance with Section 2.12(g).
(b) (i)
With respect to the Net Cash Proceeds from any Asset Sale as to which the
Borrower or any other Loan Party making such Asset Sale has not delivered a
Reinvestment Notice within the period required therefor in the definition
thereof, the Facility Proportionate Share of such Net Cash Proceeds (or portion
thereof not subject to such a Reinvestment Notice) shall be applied, within two
Business Days of the expiration of the aforesaid required period for delivery of
a Reinvestment Notice with respect to such Asset Sale, toward the prepayment of
the Obligations in accordance with Section 2.12(g); provided, that,
65
notwithstanding
the foregoing, (A) the aggregate Net Cash Proceeds of Asset Sales that may be
excluded from the foregoing prepayment requirement pursuant to a Reinvestment
Notice shall not exceed $25,000,000 in any Fiscal Year and (B) on each
Reinvestment Prepayment Date, an amount equal to the Facility Proportionate
Share of the Reinvestment Prepayment Amount with respect to the relevant
Reinvestment Event shall be applied toward the prepayment of the Obligations in
accordance with Section 2.12(g).
(ii) With respect to the
Net Cash Proceeds from any Disposition of Property (other than any Asset Sale
with respect to which a prepayment is required to be made pursuant to Section
2.12(b)(i)) that are required pursuant to the terms of any First Lien Secured
Obligations to be applied to (or offered to be applied to) the repayment of any
First Lien Secured Obligations (in the event any such repaid First Lien Secured
Obligations constitute a revolving credit facility, accompanied by a permanent
reduction of commitments under such revolving credit facility in the amount of
such repayment), the Facility Proportionate Share of such Net Cash Proceeds
shall be applied, within one Business Day of the date any of such Net Cash
Proceeds are required to be so applied (or offered to be so applied) to any
First Lien Secured Obligations, toward the prepayment of the Obligations in
accordance with Section 2.12(g).
(iii) In the event any Net
Cash Proceeds from any Asset Sale are not applied toward the prepayment of the
Obligations pursuant to Section 2.12(b)(i) as a result of not being deemed part
of the “Facility Proportionate Share” of such Net Cash Proceeds and such amounts
are not applied to the prepayment and permanent reduction of First Lien Secured
Obligations for any reason whatsoever (including the failure of any holder of
such First Lien Secured Obligations to accept an offer of prepayment) within 60
days of the application of the Facility Proportionate Share of such Net Cash
Proceeds toward the prepayment of the Obligations pursuant to Section
2.12(b)(i), then such amounts shall, on the last day of such 60-day period, be
applied toward the prepayment of the Obligations in accordance with Section
2.12(g).
(c) No
later than (i) two Business Days following the date on which Loss Proceeds are
required to be applied to the prepayment of Obligations under Section 5.14 of
the Disbursement Agreement, (ii) two Business Days following the date on
which Insurance Proceeds and/or Eminent Domain Proceeds are required to be
applied to the prepayment of the Obligations pursuant to Section 2.24 or
(iii) unless the Borrower otherwise notifies the Administrative Agent in
writing within such two Business Day period that such Liquidated Damages have
been allocated for future application toward Project Costs, two Business Days
following the date on which any Loan Party receives Liquidated Damages (provided, that to the
extent such Liquidated Damages are paid pursuant to any obligation, default or
breach, the results of which can be remedied through the expenditure of money,
and the applicable Loan Party determines in its reasonable judgment to undertake
such remedy, the Liquidated Damages subject to this subsection (iii) shall be
net of reasonable amounts that such Loan Party anticipates to incur in
connection with such remedy (such amounts, the “Reinvested Amounts”);
and provided,
further, that
in the event such Loan Party has not expended any Reinvested Amounts in
furtherance of such remedy by the date that is six months after a Loan Party
initially received the relevant Liquidated Damages or, in the case of any
Reinvested Amounts to be expended in furtherance of such remedy pursuant to a
contract entered into during such six-month period, such amounts have not been
expended by the date that is twelve months after a Loan Party initially received
the relevant
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Liquidated
Damages, such non-expended amounts shall be applied on the second Business Day
following such sixth-month or twelve-month, as the case may be, anniversary date
toward the prepayment of the Obligations in accordance with Section 2.12(g)),
the Borrower shall apply such funds toward the prepayment of the Obligations in
accordance with Section 2.12(g).
(d) If,
for any Fiscal Year, commencing with the Fiscal Year in which the Phase II
Opening Date occurs, there shall be Excess Cash Flow, the Borrower shall, and
shall cause the applicable Loan Parties to, on the relevant Excess Cash Flow
Application Date, apply the ECF Percentage of such Excess Cash Flow toward the
prepayment of the Obligations in accordance with Section
2.12(g). Each such prepayment and commitment reduction shall be made
on a date (an “Excess
Cash Flow Application Date”) no later than five Business Days after the
earlier of (i) the date on which the financial statements of the Loan Parties
referred to in Section 6.1(a), for the Fiscal Year with respect to which such
prepayment is made, are required to be delivered to the Lenders and (ii) the
date such financial statements are actually delivered.
(e) (i) On
August 31, 2011, the Revolving Credit 2 Commitment of each Revolving Credit 2
Lender shall automatically, without further action by the Borrower, the
Administrative Agent or the Lenders, be permanently reduced by ten percent (10%)
of the amount of the Revolving Credit 2 Commitment of such Lender then in
effect. If, at the time of such reduction on August 31, 2011, the
Total Revolving 2 Extensions of Credit would exceed the Total Revolving Credit 2
Commitments as so reduced, the Borrower shall make a prepayment of Revolving
Credit 2 Loans and/or Swing Line Loans in an amount such that the Total
Revolving 2 Extensions of Credit shall not exceed the Total Revolving Credit 2
Commitments as so reduced.
(ii) On
August 31, 2012, the Revolving Credit 2 Commitment of each Revolving Credit 2
Lender shall automatically, without further action by the Borrower, the
Administrative Agent or the Lenders, be permanently reduced by ten percent (10%)
of the amount of the Revolving Credit 2 Commitment of such Lender then in
effect. If, at the time of such reduction on August 31, 2012, the
Total Revolving 2 Extensions of Credit would exceed the Total Revolving Credit 2
Commitments as so reduced, the Borrower shall make a prepayment of Revolving
Credit 2 Loans and/or Swing Line Loans in an amount such that the Total
Revolving 2 Extensions of Credit shall not exceed the Total Revolving Credit 2
Commitments as so reduced.
(f) If,
at any time, with respect to any fiscal quarter, any cash equity contributions
and/or the proceeds of any sale of Capital Stock of the Borrower in an aggregate
amount in excess of $30,000,000 are included in “Consolidated EBITDA” (pursuant
to the terms of such definition in Section 1.1) for such fiscal quarter, the
Borrower shall, within one (1) Business Day after providing the relevant notice
pursuant to the definition of “Consolidated EBITDA” that such contributions
and/or proceeds are to be so included in Consolidated EBITDA, apply no less than
fifty percent (50%) of such excess amount to the prepayment of Term Loans and/or
Revolving Credit Loans (and in the case of any such prepayments of Revolving
Credit Loans, the Borrower shall immediately reduce the applicable Revolving
Credit Commitments by a corresponding amount).
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(g) Subject
to Section 2.18, amounts to be applied to the prepayment of the Obligations
pursuant to this Section 2.12 (other than pursuant to Sections 2.12(e) or 2.12
(f)) shall be applied, first, to the
prepayment of the Term Loans, second, to reduce
permanently the Revolving Credit 1 Commitments and the Revolving Credit 2
Commitments pro
rata according
to the amount of such Commitments then in effect, and, third, to the
Borrower or such other Person as shall be lawfully entitled
thereto. Any reduction of the Revolving Credit Commitments in
accordance with the foregoing shall be accompanied by prepayment of the
Revolving Credit 1 Loans, Revolving Credit 2 Loans and/or Swing Line Loans to
the extent, if any, that the Total Revolving 1 Extensions of Credit exceed the
amount of the Total Revolving Credit 1 Commitments as so reduced or
the Total Revolving 2 Extensions of Credit exceed the Total Revolving Credit 2
Commitments as so reduced, provided that if the
aggregate principal amount of Revolving Credit 2 Loans and Swing Line Loans then
outstanding is less than the amount of the Total Revolving Credit 2 Commitments
as so reduced (because L/C Obligations constitute a portion thereof), the
Borrower shall, to the extent of the balance of such excess, replace outstanding
Letters of Credit and/or deposit an amount in immediately available funds in a
cash collateral account established with the Administrative Agent for the
benefit of the Secured Parties on terms and conditions satisfactory to the
Administrative Agent (and the Borrower hereby grants to the Administrative
Agent, for the ratable benefit of the Secured Parties, a continuing first
priority security interest (subject to no other Liens) in all amounts at any
time on deposit in such cash collateral account to secure all L/C Obligations
from time to time outstanding and all other Obligations). If at any
time the Administrative Agent determines that any funds held in such cash
collateral account are subject to any right or claim of any Person other than
the Administrative Agent and the Secured Parties or that the total amount of
such funds is less than the amount of such excess, the Borrower shall, forthwith
upon demand by the Administrative Agent, pay to the Administrative Agent, as
additional funds to be deposited and held in such cash collateral account, an
amount equal to the excess of (a) the amount of such excess over (b) the total
amount of funds, if any, then held in such cash collateral account that the
Administrative Agent determines to be free and clear of any such right and
claim. The application of any prepayment pursuant to this Section
2.12, including Sections 2.12(e) and 2.12(f), shall be made, first, to Base Rate
Loans and, second, to Eurodollar
Loans. Each prepayment of the Loans under this Section 2.12 (except
in the case of Revolving Credit 1 Loans or Revolving Credit 2 Loans (unless the
Revolving Credit 1 Loans or Revolving Credit 2 Loans, as applicable, are being
repaid in full and the Revolving Credit 1 Commitments or Revolving Credit 2
Commitments, as applicable, terminated) that are Base Rate Loans and Swing Line
Loans), including Sections 2.12(e) and 2.12(f), shall be accompanied by accrued
interest to the date of such prepayment to the applicable Lender on the amount
prepaid.
2.13 Conversion and Continuation
Options.
(a) The
Borrower may elect from time to time to convert Eurodollar Loans to Base Rate
Loans by giving the Administrative Agent at least two Business Days’ prior
irrevocable notice of such election (which notice may be given by telephone
confirmed promptly in writing), provided that any
such conversion of Eurodollar Loans may only be made on the last day of an
Interest Period with respect thereto. Other than with respect to
Swing Line Loans which shall at all times be Base Rate Loans, the Borrower may
elect from time to time to convert Base Rate Loans to Eurodollar Loans by giving
the Administrative Agent at least three Business Days’ prior irrevocable notice
of such election (which notice shall specify the length of the initial
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Interest
Period therefore and may be given by telephone confirmed promptly in writing),
provided that
no Base Rate Loan under a particular Facility may be converted into a Eurodollar
Loan (i) when any Event of Default has occurred and is continuing and the
Administrative Agent or the Required Facility Lenders in respect of such
Facility have determined in its or their sole discretion not to permit such
conversions or (ii) after the date that is one month prior to the final
scheduled termination or maturity date of such Facility (or in the case that the
Loans requested to be converted are Revolving Credit 1 Loans, after the date
that is one month prior to the Scheduled Revolving Credit 1 Termination
Date). Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
(b) Any
Eurodollar Loan may be continued as such upon the expiration of the then current
Interest Period with respect thereto by the Borrower giving irrevocable notice
to the Administrative Agent (which notice may be given by telephone confirmed
promptly in writing), in accordance with the applicable provisions of the term
“Interest Period” set forth in Section 1.1, of the length of the next Interest
Period to be applicable to such Loans, provided that no
Eurodollar Loan under a particular Facility may be continued as such (i) when
any Event of Default has occurred and is continuing and the Administrative Agent
has or the Required Facility Lenders in respect of such Facility have determined
in its or their sole discretion not to permit such continuations or (ii) after
the date that is one month prior to the final scheduled termination or maturity
date of such Facility (or in the case that the Loans requested to be continued
are Revolving Credit 1 Loans, one month prior to the Scheduled
Revolving Credit 1 Termination Date), and provided, further, that if the
Borrower shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to the preceding
proviso such Loans shall be automatically converted to Base Rate Loans on the
last day of such then expiring Interest Period. Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant Lender
thereof.
2.14 Minimum Amounts and Maximum
Number of Eurodollar Tranches. Notwithstanding
anything to the contrary in this Agreement, all borrowings, conversions,
continuations and optional prepayments of Eurodollar Loans hereunder and all
selections of Interest Periods hereunder shall be in such amounts and be made
pursuant to such elections so that (a) after giving effect thereto, the
aggregate principal amount of the Eurodollar Loans comprising each Eurodollar
Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess
thereof and (b) no more than ten Eurodollar Tranches shall be outstanding at any
one time.
2.15 Interest Rates and Payment
Dates.
(a) Each
Eurodollar Loan shall bear interest for each day during each Interest Period
with respect thereto at a rate per annum equal to the Eurodollar Rate determined
for such day plus the Applicable Margin.
(b) Each
Base Rate Loan shall bear interest at a rate per annum equal to the Base Rate
plus the Applicable Margin.
(c) (i) If
all or a portion of the principal amount of any Loan or Reimbursement Obligation
shall not be paid when due (whether at the stated maturity, by
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acceleration
or otherwise) or an Event of Default has otherwise occurred and is continuing,
all outstanding Loans and Reimbursement Obligations (whether or not overdue)
shall bear interest at a rate per annum that is equal to (x) in the case of the
Loans, the rate that would otherwise be applicable thereto pursuant to the
foregoing provisions of this Section plus 2.0% or (y) in
the case of Reimbursement Obligations, the rate applicable to Base Rate Loans
constituting Revolving Credit 2 Loans plus 2.0% and (ii) if
all or a portion of any interest payable on any Loan or Reimbursement Obligation
or any commitment fee or other amount payable hereunder (in accordance with
Section 2.9 or otherwise) shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum equal to the rate then applicable to Base Rate Loans under
the relevant Facility (and if the relevant Facility is the Revolving Credit
Facility, the rate then applicable to Base Rate Loans that are Revolving Credit
1 Loans or Revolving Credit 2 Loans, as applicable) plus 2.0% (or, in the
case of any such other amounts that do not relate to a particular Facility, the
rate then applicable to Base Rate Loans constituting Revolving Credit 2 Loans
plus 2.0%), in
each case, with respect to subsections (i) and (ii) above, from the date of such
nonpayment until such amount is paid in full (after as well as before judgment)
or so long as such Event of Default is continuing. In addition, to
the extent any other Loan Document references “Revolving Credit Loans” or loans
under the “revolving credit facility” under this Agreement for the purpose of
determining the applicable interest rate and without specifying whether such
reference is intended to mean “Revolving Credit 1 Loans” or “Revolving
Credit 2 Loans”, each such reference shall be interpreted to mean
“Revolving Credit 2 Loans”.
(d) Interest
shall be payable in arrears on each Interest Payment Date, provided that
interest accruing pursuant to paragraph (c) of this Section shall be payable
from time to time on demand.
2.16 Computation of Interest and
Fees.
(a) Interest,
fees and commissions payable pursuant hereto shall be calculated on the basis of
a 360-day year for the actual days elapsed, except that, with respect to Base
Rate Loans the rate of interest on which is calculated on the basis of the Prime
Rate, the interest thereon shall be calculated on the basis of a 365-day year
for the actual days elapsed. The Administrative Agent shall as soon
as practicable notify the Borrower and the relevant Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate
on a Loan resulting from a change in the Base Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change becomes effective. The Administrative Agent shall
as soon as practicable notify the Borrower and the relevant Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each
determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of manifest error. The Administrative
Agent shall, at the request of the Borrower, deliver to the Borrower a statement
showing the quotations, if any, used by the Administrative Agent in determining
any interest rate pursuant to Section 2.15(a).
2.17 Inability to Determine
Interest Rate. If
prior to the first day of any Interest Period:
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(a) the
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, or
(b) the
Administrative Agent shall have received notice from the Applicable Facility
Lenders in respect of the relevant Facility that the Eurodollar Rate determined
or to be determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such Lenders) of
making or maintaining their affected Loans during such Interest
Period,
the
Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable
thereafter. If such notice is given (x) any Eurodollar Loans under
the relevant Facility requested to be made on the first day of such Interest
Period shall be made as Base Rate Loans, (y) any Loans under the relevant
Facility that were to have been converted on the first day of such Interest
Period to Eurodollar Loans shall be continued as Base Rate Loans and (z) any
outstanding Eurodollar Loans under the relevant Facility shall be converted, on
the last day of the then current Interest Period with respect thereto, to Base
Rate Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans under the relevant Facility
shall be made or continued as such, nor shall the Borrower have the right to
convert Loans under the relevant Facility to Eurodollar Loans. If the
Borrower receives such notice from the Administrative Agent prior to the first
day of an Interest Period with respect to new Loans to be made on such day, the
Borrower shall have the right to withdraw such related Notice of Borrowing and
have no liability under Section 2.21.
2.18 Pro Rata Treatment and
Payments.
(a) Each
borrowing by the Borrower from the Revolving Credit 1 Lenders hereunder shall be
made pro rata according to the
Revolving Credit 1 Percentages of the Revolving Credit 1
Lenders. Each borrowing by the Borrower from the Revolving Credit 2
Lenders hereunder shall be made pro rata according to the
Revolving Credit 2 Percentages of the Revolving Credit 2
Lenders. Each payment by the Borrower on account of the Revolving 1
Commitment Fee or Revolving 2 Commitment Fee shall be made pro rata according to the
respective Revolving Credit 1 Percentages or Revolving Credit 2 Percentages, as
the case may be, of the relevant Lenders. Subject to Sections 2.18(b)
and (c), each payment (other than prepayments) in respect of principal
or interest in respect of the Loans, and each payment in respect of fees or
expenses payable hereunder shall be applied to the amounts of such obligations
owing to the Lenders pro rata according to the
respective amounts then due and owing to the Lenders. The application
of any mandatory prepayment pursuant to this Section 2.18 shall be made, first, to Base Rate
Loans and, second, to Eurodollar
Loans. For purposes of clarification, Permitted Loan Repurchases
shall not constitute payments (or prepayments) of Loans for any purpose
hereunder.
(b) Each
payment (including each prepayment) on account of principal of and interest on
the Term Loans shall be made pro rata according to the
respective outstanding principal amounts of the Term Loans then held by the Term
Loan Lenders, and such payments and prepayments, and the principal amount of
Term Loans cancelled and retired in connection
71
with
any Permitted Loan Repurchase, shall be applied to reduce the installments of
such Term Loans (provided that the final payment of Term B Loans on the Term B
Loan Termination Date and of any Series of New Term Loans on the final maturity
date thereof shall be treated as “installments” for purposes of this subsection
(b)) pro rata based on the
remaining outstanding principal amount of such installments. Amounts
prepaid on account of the Term Loans may not be reborrowed.
(c) Each
payment (including each prepayment) on account of principal of and interest on
the Revolving Credit Loans shall be made pro rata according to the
respective outstanding principal amounts of the Revolving Credit Loans then held
by the Revolving Credit Lenders. Each payment in respect of
Reimbursement Obligations in connection with any Letter of Credit shall be made
to the Issuing Lender. Each reduction of the Revolving Credit 1
Commitments or Revolving Credit 2 Commitments (other than pursuant to Section
10.6(g)) shall be made pro rata according to the
respective Revolving Credit 1 Percentages or Revolving Credit 2 Percentages, as
the case may be, of the relevant Lenders. Notwithstanding the
foregoing, (i) the Borrower shall make each payment of interest on the Revolving
Credit 1 Loans and the Revolving Credit 2 Loans on the dates and at the rates
set forth in Section 2.15, which payments shall be made to the Revolving Credit
1 Lenders or the Revolving Credit 2 Lenders, as the case may be, pro rata according to the
respective outstanding principal amounts of the Revolving Credit 1 Loans or
Revolving Credit 2 Loans (as applicable) then held by such Lenders, (ii) the
Borrower may apply prepayments of the Revolving Credit Loans under Sections 2.11
and 2.12(f) to the Revolving Credit 1 Loans and/or the Revolving Credit 2 Loans
in such percentages as the Borrower may elect, which payments shall be made to
the Revolving Credit 1 Lenders or the Revolving Credit 2 Lenders, as the case
may be, pro
rata according
to the respective outstanding principal amounts of the Revolving Credit 1 Loans
or Revolving Credit 2 Loans (as applicable) then held by such Lenders, (iii) the
Borrower shall make prepayments of the Revolving Credit 1 Loans and/or Revolving
Credit 2 Loans as required pursuant to Sections 2.12(e) and 2.12(g), which
payments shall be made to the Revolving Credit 1 Lenders or the Revolving Credit
2 Lenders, as the case may be, pro rata according to the
respective outstanding principal amounts of the Revolving Credit 1 Loans or
Revolving Credit 2 Loans (as applicable) then held by such Lenders, and (iv) the
Borrower shall repay the outstanding Revolving Credit 1 Loans to the Revolving
Credit 1 Lenders on the Revolving Credit 1 Termination Date and the Revolving
Credit 2 Loans to the Revolving Credit 2 Lenders on the Revolving Credit 2
Termination Date.
(d) Subject
to Section 2.20, all payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Payment Office, in Dollars and in
immediately available funds. The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on the
Eurodollar Loans) becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business
Day. If any payment on a Eurodollar Loan becomes due and payable on a
day other than a Business Day, the maturity thereof shall be extended to the
next succeeding Business Day unless the result of such extension would be to
extend such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business
Day.
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In
the case of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then applicable rate
during such extension.
(e) Unless
the Administrative Agent shall have been notified in writing by any Lender prior
to a borrowing that such Lender will not make the amount that would constitute
its share of such borrowing available to the Administrative Agent, the
Administrative Agent may assume that such Lender is making such amount available
to the Administrative Agent, and the Administrative Agent may, in reliance upon
such assumption, make available to the Borrower a corresponding
amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any
Lender with respect to any amounts owing under this paragraph shall be
conclusive in the absence of manifest error. If such Lender’s share
of such borrowing is not made available to the Administrative Agent by such
Lender within three Business Days of such Borrowing Date, the Administrative
Agent shall also be entitled to recover such amount with interest thereon at the
rate per annum applicable to the Loans made pursuant to such borrowing as if
they were Base Rate Loans, on demand, from the Borrower.
(f) Unless
the Administrative Agent shall have been notified in writing by the Borrower
prior to the date of any payment being made hereunder that the Borrower will not
make such payment to the Administrative Agent, the Administrative Agent may
assume that the Borrower is making such payment, and the Administrative Agent
may, but shall not be required to, in reliance upon such assumption, make
available to the Lenders their respective pro rata shares of a
corresponding amount. If such payment is not made to the
Administrative Agent by the Borrower within three Business Days of such required
date, the Administrative Agent shall be entitled to recover, on demand, from
each Lender to which any amount which was made available pursuant to the
preceding sentence, such amount with interest thereon at the rate per annum
equal to the daily average Federal Funds Effective Rate. Nothing
herein shall be deemed to limit the rights of the Administrative Agent or any
Lender against the Borrower.
2.19 Requirements of
Law.
(a) Subject
to the provisions of Section 2.20 (which shall be controlling with respect
to the matters covered thereby), if the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall
impose, modify or hold applicable any reserve, special deposit, compulsory loan
or similar requirement against assets held by, deposits or other liabilities in
or for the account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender that is not otherwise
included in the determination of the Eurodollar Rate hereunder; or
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(ii) shall
impose on such Lender any other condition;
and
the result of any of the foregoing is to increase the cost to such Lender, by an
amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, upon receipt by the Borrower of the notice
described in the last sentence of this paragraph, the Borrower shall promptly
pay such Lender any additional amounts necessary to compensate such Lender on an
after-tax basis for such increased cost or reduced amount receivable; provided, that the
Borrower shall not be required to compensate a Lender pursuant to this
subsection (a) for any increased costs or reduced amounts receivable from more
than six months prior to the date on which such Lender notified the Borrower of
such Lender's intention to claim compensation therefor; and provided, further, that, if the
circumstances giving rise to such claim have a retroactive effect, then such
six-month period shall be extended to include the period of such retroactive
effect. If any Lender becomes entitled to claim any additional
amounts pursuant to this Section, it shall promptly notify the Borrower in
writing (with a copy to the Administrative Agent) of the event by reason of
which it has become so entitled, and setting forth in such notice, in reasonable
detail, the basis and calculation of such amounts.
(b) If
any Lender shall have determined that the adoption of or any change in any
Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any corporation controlling
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) from any Governmental Authority made subsequent to
the date hereof shall have the effect of reducing the rate of return on such
Lender’s or such corporation’s capital as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a level below that
which such Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender’s or such
corporation’s policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, after submission by such
Lender to the Borrower (with a copy to the Administrative Agent) of a written
request therefor (which request shall set forth, in reasonable detail, the basis
and calculation of the additional amounts sought), the Borrower shall pay to
such Lender such additional amount or amounts as set forth in the aforesaid
notice; provided, that the
Borrower shall not be required to compensate a Lender pursuant to this
subsection (b) for any amounts incurred more than six months prior to the date
on which such Lender notified the Borrower of such Lender's intention to claim
compensation therefor; and provided, further, that, if the
circumstances giving rise to such claim have a retroactive effect, then such
six-month period shall be extended to include the period of such retroactive
effect.
(c) A
certificate as to any additional amounts payable pursuant to this Section
submitted by any Lender to the Borrower (with a copy to the Administrative
Agent) and setting forth, in reasonable detail, the basis and calculation of
such amounts shall be conclusive in the absence of manifest
error. The obligations of the Borrower pursuant to this Section shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
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2.20 Taxes.
(a) All
payments made by the Borrower or any Guarantor under this Agreement or any other
Loan Document shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, other than Excluded Taxes (collectively, the “Non-Excluded
Taxes”). If any such Non-Excluded Taxes are required to be
withheld from any amounts payable to any Arranger, any Agent, any Manager or any
Lender hereunder, the amounts so payable to such Arranger, such Agent, such
Manager or such Lender shall be increased to the extent necessary to yield to
such Arranger, such Agent, such Manager or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts that would have been
received hereunder or under any other Loan Document had such withholding not
been required; provided, however, that neither
the Borrower nor a Guarantor shall be required to increase any such amounts
payable to any Arranger, any Agent, any Manager or any Lender with respect to
any Non-Excluded Taxes (i) that are attributable to such Arranger’s, such
Agent’s, such Manager’s or such Lender’s failure to comply with the requirements
of subsection (f) or (g) of this Section 2.20, or (ii) that are withholding
taxes imposed on amounts payable to such Arranger, such Agent, such Manager or
such Lender at the time such Arranger, such Agent, such Manager or such Lender
becomes a party to this Agreement. The Borrower or the applicable
Guarantor shall make any such required withholding and pay the full amount
withheld to the relevant tax authority or other Governmental Authority in
accordance with applicable Requirements of Law.
(b) If
any Arranger, Agent, Manager or Lender, as applicable, receives a refund, credit
or other tax benefit for which a payment has been made by the Borrower or any
Guarantor pursuant to this Section 2.20, which refund, credit or other tax
benefit in the good faith judgment of such Arranger, Agent, Manager or Lender,
as the case may be, is attributable to such payment made by the Borrower or such
Guarantor, then such Arranger, Agent, Manager or Lender, as the case may be,
shall reimburse the Borrower or such Guarantor for such amount as such Arranger,
Agent, Manager or Lender, as the case may be, determines in good faith to be the
proportion of the refund, credit or other tax benefit as will leave it, after
such reimbursement, in the same position it would have been in if the payment of
such tax and any payment by the Borrower or such Guarantor under this Section
2.20 had not been made. In addition, upon the Borrower's reasonable
request each Arranger, Agent, Manager and Lender, as applicable, shall use its
reasonable efforts to pursue any available refund, credit or other tax benefit
that, in the reasonable and good faith determination of such Arranger, Agent,
Manager or Lender, as applicable, is attributable to any tax with respect to
which the Borrower or any Guarantor has made a payment pursuant to this
Agreement, and shall remit immediately available funds to the Borrower in an
amount equal to any such refund, credit or other tax benefit (including any
interest received thereon).
(c) Subject
to subsection (f) below, the Borrower shall indemnify each Arranger, each Agent,
each Manager and each Lender for the full amount of Non-Excluded Taxes to the
extent payable but not paid by the Borrower or any Guarantor pursuant to Section
2.20(a) and paid by such Arranger, Agent, Manager or Lender or any of their
respective Affiliates (including, without limitation, any Non-Excluded Taxes
imposed by any
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Governmental
Authority on amounts payable under Section 2.20(a) or this Section 2.20(c) and
any penalties, additions to tax interest and related expenses attributable to
such Non-Excluded Taxes). Payment under this indemnification shall be
made within ten (10) Business Days from the date any Arranger, any Agent, any
Manager or any Lender or any of their respective Affiliates makes written demand
therefor, which demand shall set forth in reasonable detail the basis and
calculation of the amounts demanded. Any Lender (or Transferee)
claiming any indemnity payment or additional amounts payable pursuant to Section
2.20(a) shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document reasonably requested in
writing by the Borrower or a Guarantor if the making of such a filing would
avoid the need for or reduce the amount of any such indemnity payment or
additional amounts that may thereafter accrue.
(d) Whenever
any Non-Excluded Taxes are payable by the Borrower or a Guarantor, as promptly
as practicable thereafter the Borrower or such Guarantor shall send to the
Administrative Agent for the account of the relevant Arranger, Agent, Manager or
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower or such Guarantor showing payment thereof.
(e) The
agreements in this Section 2.20 shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable
hereunder.
(f) Each
Lender (or Transferee) that is not a U.S. Person (as defined in Section
7701(a)(30) of the Code) (a “Non-U.S. Lender”)
shall deliver to the Borrower and the Administrative Agent (and, in the case of
a Participant, to the Lender from which the related participation shall have
been purchased) two duly completed copies of either U.S. Internal Revenue
Service Form W-8BEN or Form W-8ECI (or any subsequent revisions thereof or
successors thereto), or, in the case of a Non-U.S. Lender claiming exemption
from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of “portfolio interest,” a Form W-8BEN (or any
subsequent revisions thereof or successors thereto) and a statement
substantially in the form of Exhibit I hereto to the effect that such
Non-U.S. Lender is eligible for a complete exemption from withholding of U.S.
taxes under Section 871(h) or 881(c) of the Code, or any subsequent versions of
any of the foregoing or successors thereto, properly completed and duly executed
by such Non-U.S. Lender claiming complete exemption from, or a reduced rate of,
U.S. federal withholding tax on all payments by the Borrower or any Guarantor
under this Agreement and the other Loan Documents. Non-U.S. Lenders
that are non-U.S. partnerships or other similar Pass-Through Entities shall also
deliver to the Borrower and the Administrative Agent (and, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two duly completed copies of U.S. Internal Revenue Service Form
W-8IMY, together with all required attachments. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a party to
this Agreement (or, in the case of any Participant, on or before the date such
Participant purchases the related participation) and on or before the date of
the first payment to it following the date, if any, such Non-U.S. Lender changes
its applicable lending office pursuant to Section 2.23 hereof. In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower at
any time it determines that it is no longer in a position to provide any
previously delivered certificate to the Borrower (or any other form of
certification adopted by the U.S.
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taxing
authorities for such purpose). If a Non-U.S. Lender is unable to
deliver any form pursuant to this Section 2.20(f), such Non-U.S. Lender shall be
entitled to neither relief from withholding nor indemnity hereunder with respect
to Non-Excluded Taxes for the period that would have been covered by such form,
unless (i) such Non-U.S. Lender’s inability to deliver such form resulted from a
change in law after the date on which such Lender became a Lender hereunder or
as a result of a change in the circumstances of the Borrower or any Guarantor or
the use of proceeds of such Non-U.S. Lender’s loans or (ii) such Non-U.S.
Lender’s assignor (if any) was entitled, at the time of assignment, to the
indemnity afforded hereunder.
(g) Each
Arranger, Agent, Manager and Lender that is entitled to an exemption from
non-U.S. withholding taxes under the law of the jurisdiction in which the
Borrower or a Guarantor is located, or any treaty to which such jurisdiction is
a party, with respect to payments under this Agreement or any other Loan
Document shall deliver to the Borrower and the relevant Guarantor(s), as
applicable (with a copy to the Administrative Agent), at the time or times
prescribed by applicable Requirements of Law or reasonably requested by the
Borrower or such Guarantor(s), such properly completed and executed
documentation prescribed by applicable Requirements of Law as will permit such
payments to be made without withholding; provided, that such
Arranger, Agent, Manager or Lender is legally entitled to complete, execute and
deliver such documentation and in such Person’s judgment such completion,
execution or submission would not materially prejudice the legal position of
such Person.
(h) The
Borrower and each Guarantor shall pay all Non-Excluded Taxes to the relevant
Governmental Authority in accordance with applicable Requirements of
Law.
2.21 Indemnity. The
Borrower agrees to indemnify each Lender and to hold each Lender harmless from
any loss (other than loss of anticipated profits) or expense that such Lender
may sustain or incur as a consequence of (a) default by the Borrower in
making a borrowing of, conversion into or continuation of Eurodollar Loans after
the Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement (whether as a result of a Stop Funding Notice or
otherwise) other than by reason of Section 2.17 if the Administrative Agent
gives notice to the Borrower thereunder and the Borrower withdraws a Notice of
Borrowing in accordance with the last sentence of Section 2.17, (b) default by
the Borrower in making any prepayment after the Borrower has given a notice
thereof in accordance with the provisions of this Agreement or (c) the making of
a prepayment or conversion of Eurodollar Loans on a day that is not the last day
of an Interest Period with respect thereto. Such indemnification may
include an amount equal to the excess, if any, of (i) the amount of interest
that would have accrued on the amount so prepaid or converted, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or conversion or of such failure to borrow, convert or continue to
the last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Applicable Margin included therein,
if any) over
(ii) the amount of interest (as reasonably determined by such Lender) that would
have accrued to such Lender on such amount by placing such amount on deposit for
a comparable period with leading banks in the interbank eurodollar
market. A certificate as to any amounts payable pursuant to this
Section
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submitted
to the Borrower by any Lender shall be conclusive in the absence of manifest
error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and Letters of Credit and all other amounts payable
hereunder.
2.22 Illegality. Notwithstanding
any other provision herein, if the adoption of or any change in any Requirement
of Law or in the interpretation or application thereof shall make it unlawful
for any Lender to make or maintain Eurodollar Loans as contemplated by this
Agreement, then (a) the commitment of such Lender hereunder to make Eurodollar
Loans, continue Eurodollar Loans as such and convert Base Rate Loans to
Eurodollar Loans shall forthwith be canceled and (b) such Lender’s Loans then
outstanding as Eurodollar Loans, if any, shall be converted automatically to
Base Rate Loans on the respective last days of the then current Interest Periods
with respect to such Loans or within such earlier period as required by
law. If any such conversion of a Eurodollar Loan occurs on a day
which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to Section 2.21.
2.23 Change of Lending
Office. Each
Lender agrees that, upon the occurrence of any event giving rise to the
operation of Section 2.19, 2.20 or 2.22 with respect to such Lender, it will, if
requested by the Borrower or a Guarantor, use reasonable efforts (subject to
overall policy considerations of such Lender) to designate another lending
office for any Loans affected by such event with the object of reducing or
avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing
in this Section shall affect or postpone any of the obligations or rights of any
Borrower or Lender pursuant to Section 2.19, 2.20 or 2.22.
2.24 Insurance Proceeds and
Eminent Domain Proceeds.
(a) This
Section 2.24 shall apply to all Loss Proceeds, all Insurance Proceeds and all
Eminent Domain Proceeds received by any Loan Party (i) in the case of Loss
Proceeds, Insurance Proceeds and Eminent Domain Proceeds related to the Phase II
Project, at all times from and after the Amended and Restated Disbursement
Agreement Effective Date, (ii) in the case of Insurance Proceeds and Eminent
Domain Proceeds related to the Phase I Project, at all times, and (iii) in the
case of Insurance Proceeds and Eminent Domain Proceeds that do not relate to the
Phase I Project or the Phase II Project, at all times. The Facility
Proportionate Share of any such Loss Proceeds, Insurance Proceeds or Eminent
Domain Proceeds (other than those described in subsection (b) below) shall be
applied to the prepayment of the Obligations in accordance with
Section 2.12(c)(i) or 2.12(c)(ii), as applicable, unless each of the
following conditions are satisfied or waived by the Majority Initial Lending
Institutions (and, if required by Section 2.24(d), the Required Lenders) as
required pursuant to Section 2.24(c) or 2.24(d), as the case may be, within 60
Business Days (or, in the case of Loss Proceeds, Insurance Proceeds or Eminent
Domain Proceeds described in Section 2.24(d), 90 Business Days) after any Loan
Party’s receipt of such Loss Proceeds, Insurance Proceeds or Eminent Domain
Proceeds, in which event such amounts shall be applied to the repair or
restoration of the applicable Project in accordance with the terms of such
Sections:
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(i) the
damage, destruction, Event of Loss or Event of Eminent Domain giving rise to the
receipt of such Loss Proceeds, Insurance Proceeds and/or Eminent Domain
Proceeds, in the aggregate does not constitute the destruction of all or
substantially all of the man-made portion of the Project;
(ii) neither
a Default nor an Event of Default has occurred and is continuing (other than a
Default or an Event of Default resulting solely from such damage, destruction,
Event of Loss or Event of Eminent Domain) and after giving effect to any
proposed repair and restoration (assuming any Defaults or Events of Default that
occurred prior thereto solely as a result from such damage, destruction, Event
of Loss or Event of Eminent Domain have been waived or otherwise cured), no
Default or Event of Default could reasonably be expected to result from such
damage, destruction, Event of Loss or proposed repair and restoration or Event
of Eminent Domain;
(iii) the
Borrower certifies, and the Majority Initial Lending Institutions (with, if
required by Section 2.24(d), the consent of the Required Lenders) determine in
their reasonable judgment in consultation with the Construction Consultant, that
(i) in the case of Loss Proceeds, Insurance Proceeds and Eminent Domain Proceeds
related to the Phase II Project received by any Loan Party from and after the
Amended and Restated Disbursement Agreement Effective Date but prior to the
Phase II Completion Date, it is technically and economically feasible for Phase
II Completion (as defined in the Disbursement Agreement and inclusive of any
repair or restoration required as a result of any damage, destruction, Event of
Loss or Event of Eminent Domain) to occur prior to the Phase II Scheduled
Completion Date (as defined in the Disbursement Agreement) and the Phase II
Project shall be In Balance and (ii) otherwise, that repair or restoration of
the Project to a condition substantially similar to the condition of the Project
immediately prior to the event or events to which the relevant Loss Proceeds,
Insurance Proceeds or Eminent Domain Proceeds, as the case may be relate, is
technically and economically feasible within an eighteen-month period after
receipt of any such Insurance Proceeds or Eminent Domain Proceeds, and that a
sufficient amount of funds is or will be available to the relevant Loan Party to
make such repairs and restorations (subject at all times to Section
7.7);
(iv) the
Borrower delivers to the Administrative Agent a plan describing in reasonable
detail the nature of the repairs or restoration to be effected and the
anticipated costs and schedule associated therewith (the “Repair Plan”), in
form and substance reasonably satisfactory to the Majority Initial Lending
Institutions (with, if required by Section 2.24(d), the consent of the Required
Lenders);
(v) the
Borrower certifies, and the Majority Initial Lending Institutions (with, if
required by Section 2.24(d), the consent of the Required Lenders) determine in
their reasonable judgment, that a sufficient amount of funds is or will be
available to the Borrower to make all payments on Indebtedness which will become
due during and following the repair period and, in any event, to maintain
compliance with the covenants set forth in Section 7.1 during such repair
period;
(vi) no
Permit is necessary to proceed with the repair and restoration of the Project
and no other instrument is necessary for the purpose of effecting the
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repairs
or restoration of the Project or subjecting the repairs or restoration to the
Liens of the applicable Security Documents and maintaining the priority of such
Liens or, if any of the above is necessary, the Borrower and/or the appropriate
Loan Party will be able to obtain the same as and when required;
(vii) the
Majority Initial Lending Institutions shall receive such additional title
insurance, title insurance endorsements, mechanic’s lien waivers, certificates,
opinions or other matters as they may reasonably request as necessary to
preserve or protect the Lenders’ interests hereunder and in the applicable
Collateral; and
(viii) the
proposed repair or restoration is not prohibited by each of the other Financing
Agreements.
(b) (i) The Loan
Parties shall have the right to use up to an amount of $5,000,000 of Loss
Proceeds, Insurance Proceeds and/or Eminent Domain Proceeds received by the Loan
Parties for each single loss or series of related losses, but in any event no
more than an aggregate amount of $10,000,000 of such Loss Proceeds, Insurance
Proceeds and/or Eminent Domain Proceeds during the term of the Facility, for
working capital and/or to repair, restore and/or replace the Property with
respect to which such Loss Proceeds, Insurance Proceeds and/or Eminent Domain
Proceeds relate and Sections 2.12 and 2.24 (other than this Section 2.24(b)(i))
shall not apply to such proceeds.
(ii) If, subject to
Section 2.24(b)(i), there shall occur any damage, destruction, Event of
Loss, or Event of Eminent Domain of or with respect to the Project with respect
to which Loss Proceeds, Insurance Proceeds and/or Eminent Domain Proceeds
received by the relevant Loan Party(ies) for any single loss or series of
related losses not in excess of $30,000,000 are payable, such Loss Proceeds,
Insurance Proceeds and/or Eminent Domain Proceeds shall be held by the
Administrative Agent in a Funding Account and released by the Administrative
Agent to the relevant Loan Party(ies) in amounts from time to time necessary to
make payments for work undertaken towards repair, restoration or reconstruction
necessitated by such event(s), upon presentation of documentation reasonably
satisfactory to the Administrative Agent supporting such requested
payments.
(c) Provided
that the conditions set forth in subsection (a) above have been waived by the
Majority Initial Lending Institutions, or have been acknowledged by such Persons
as having been satisfied, which acknowledgement shall not be unreasonably
withheld, delayed or conditioned, if there shall occur any damage, destruction,
Event of Loss or Event of Eminent Domain of or with respect to the Project with
respect to which Loss Proceeds, Insurance Proceeds and/or Eminent Domain
Proceeds received by the relevant Loan Party(ies) for any single loss or series
of related losses in excess of $30,000,000, but not in excess of $100,000,000,
are payable, such Loss Proceeds, Insurance Proceeds and/or Eminent Domain
Proceeds received by relevant Loan Party(ies) shall be held by the
Administrative Agent in a Funding Account and released by the Administrative
Agent to relevant Loan Party(ies) in accordance with subsection (e)
below.
(d) Provided
that the conditions set forth in subsection (a) above have been waived by the
Majority Initial Lending Institutions and the Required Lenders, or have
been
80
acknowledged
by such Persons as having been satisfied, which acknowledgement shall not be
unreasonably withheld, delayed or conditioned, if there shall occur any damage,
destruction, Event of Loss or Event of Eminent Domain of or with respect to the
Project with respect to which Loss Proceeds, Insurance Proceeds and/or Eminent
Domain Proceeds received by the relevant Loan Party(ies) for any single loss or
series of related losses in excess of $100,000,000 are payable, such Loss
Proceeds, Insurance Proceeds and/or Eminent Domain Proceeds shall be held by the
Administrative Agent in a Funding Account and released by the Administrative
Agent to the relevant Loan Party(ies) in accordance with subsection (e)
below.
(e) Except
as provided in Section 2.24(b), amounts which are to be applied to repair or
restoration of the Project pursuant to this Section 2.24 shall be disbursed by
the Administrative Agent from the applicable Funding Account in accordance with
the procedures set forth in this Section 2.24(e). From time to time
the Administrative Agent’s authorization of release of Loss Proceeds, Insurance
Proceeds and/or Eminent Domain Proceeds for application toward such repairs or
restoration shall be conditioned upon the relevant Loan Party’s delivery to the
Administrative Agent of (i) a certificate from the Borrower (I) describing
in reasonable detail the nature of the repairs or restoration to be effected
with such release and certifying that such repairs or restoration are materially
consistent with, and shall be undertaken in accordance with, the Repair Plan,
(II) stating the cost of such repairs or restoration, which shall be no
less than the amount of Loss Proceeds, Insurance Proceeds and/or Eminent Domain
Proceeds requested in such release, and that such requested release amount will
be applied to the cost thereof, (III) stating that the aggregate amount
requested in respect of such repairs or restoration (when added to any other
Loss Proceeds, Insurance Proceeds and/or Eminent Domain Proceeds received by the
relevant Loan Party(ies) or funds otherwise made available to the Loan Parties
in respect of such damage, destruction, Event of Loss or Event of Eminent
Domain) does not exceed the cost of such repairs or restoration and that a
sufficient amount of funds is or will be available to the relevant Loan
Party(ies) to complete such repair or restoration and (IV) stating that
neither a Default nor an Event of Default has occurred and is continuing other
than a Default or an Event of Default resulting solely from such damage,
destruction, Event of Loss or Event of Eminent Domain (provided, that in any
event no Default or Event of Default under Sections 7.1 or 8(a) shall have
occurred and be continuing), (ii) such documents, certificates and information
of the type described in Section 2.24(a)(vii) as the Majority Initial Lending
Institutions may reasonably request and (iii) in the event such repairs or
restorations relate to damage, destruction, Event of Loss or Event of Eminent
Domain of the type described in Section 2.24(d), all other documents,
certificates and information with respect to such Loss Proceeds, Insurance
Proceeds, Eminent Domain Proceeds, repair and/or restoration as the Majority
Initial Lending Institutions may reasonably request as necessary or appropriate
in connection with such repairs or restoration of the Project or to preserve or
protect the Lenders’ interests hereunder and in the applicable
Collateral.
(f) If,
(i) any Loss Proceeds, Insurance Proceeds and/or Eminent Domain Proceeds have
not been applied to the repair or restoration of the Project by (A) in the case
of Loss Proceeds, Insurance Proceeds and Eminent Domain Proceeds related to the
Phase II Project received by any Loan Party from and after the Amended and
Restated Disbursement Agreement Effective Date but prior to the Phase II
Completion Date, the Phase II Scheduled Completion Date (as defined in the
Disbursement Agreement), (B) in the case of amounts subject to Section
2.24(b)(ii) (other than those subject to clause (A) above), eighteen months
after receipt
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of
such amounts, and (C) in the case of amounts subject to Sections 2.24(c) and
2.24(d) (other than those subject to clause (A) above), the completion date set
forth in the associated Repair Plan or (ii) after Loss Proceeds, Insurance
Proceeds and/or Eminent Domain Proceeds have been applied to the repair or
restoration of the Project as provided in this Section 2.24 (other than
Section 2.24(b)(i)), any excess Loss Proceeds, Insurance Proceeds and/or
Eminent Domain Proceeds remain, then, in each case, the Facility Proportionate
Share of such Loss Proceeds, Insurance Proceeds and/or Eminent Domain Proceeds
shall be applied to the prepayment of the Obligations in accordance with Section
2.12(c)(i) or 2.12(c)(ii), as applicable.
(g)
(i) On the date any Loss
Proceeds, Insurance Proceeds and/or any Eminent Domain Proceeds (other than any
Loss Proceeds, Insurance Proceeds and/or Eminent Domain Proceeds with respect to
which a prepayment is required to be made pursuant to this Section 2.24) are
required pursuant to the terms of any First Lien Secured Obligations to be
applied to (or offered to be applied to) the repayment of any First Lien Secured
Obligations (in the event any such repaid First Lien Secured Obligations
constitute a revolving credit facility, accompanied by a permanent reduction of
commitments under such revolving credit facility in the amount of such
repayment), the Facility Proportionate Share of such Loss Proceeds, Insurance
Proceeds and/or Eminent Domain Proceeds shall be applied toward the prepayment
of the Obligations in accordance with Section 2.12(c)(i) or 2.12(c)(ii), as
applicable.
(ii) In the event any Loss
Proceeds, Insurance Proceeds and/or Eminent Domain Proceeds are not applied
toward the prepayment of the Obligations pursuant to Section 2.12 and this
Section 2.24 as a result of not being deemed part of the “Facility Proportionate
Share” of such Loss Proceeds, Insurance Proceeds and/or Eminent Domain Proceeds
and such amounts are not applied to the prepayment and permanent reduction of
other First Lien Secured Obligations for any reason whatsoever (including the
failure of any holder of such First Lien Secured Obligations to accept an offer
of prepayment) within 60 days of the application of the Facility Proportionate
Share of such proceeds to the Obligations in accordance with Section 2.12, then
such amounts shall, on the last day of such 60-day period, be applied to the
prepayment of the Obligations in accordance with Section 2.12(c)(i) or
2.12(c)(ii), as applicable.
2.25 Replacement of Lenders under
Certain Circumstances. The
Borrower shall be permitted to replace any Lender (and cause such Lender to
assign its outstanding Loans and Commitments, if any, in full to one or more
replacement financial institutions or other Persons) that (a) requests
reimbursement for amounts owing pursuant to Section 2.19 or 2.20 or gives a
notice of illegality pursuant to Section 2.22, (b) is a Defaulting Lender or (c)
does not consent to any proposed amendment, modification, termination, waiver or
consent as contemplated by Sections 10.1(a)(i), 10.1(a)(ii), 10.1(a)(viii),
10.1(a)(ix) or 10.1(a)(x) where the consent of the Required Lenders shall have
been obtained; provided that (i) such replacement does not conflict with any
Requirement of Law, (ii) no Event of Default shall have occurred and be
continuing at the time of such replacement, (iii) solely in the event of the
circumstances described in the immediately preceding clause (a), prior to any
such replacement, such Lender shall have taken no action under Section 2.23 so
as to eliminate the continued need for payment of amounts owing pursuant to
Section 2.19 or 2.20 or to eliminate the illegality referred to in such notice
of illegality given pursuant to Section 2.22, (iv) on the date of such
replacement, the replacement financial institution(s) or other Persons shall pay
to such replaced Lender an amount
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equal
to the sum of (without duplication) (A) an amount equal to the principal of, and
all accrued interest on, all outstanding Loans of such Lender, (B) an amount
equal to all unreimbursed drawings under Letters of Credit that have been funded
by such Lender, together with all then unpaid interest with respect thereto at
such time and (C) an amount equal to all accrued, but theretofore unpaid fees
owing to such Lender pursuant to Section 2.9 through the date of replacement,
(v) on the date of such replacement the Borrower shall pay to such replaced
Lender any amounts due and payable to such Lender pursuant to Section 2.19, 2.20
or 2.21, (vi) the replacement financial institution(s) or other Persons shall be
Eligible Assignees, (vii) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of Section 10.6(c) (provided that
the Borrower shall be obligated to pay the registration and processing fee
referred to therein), (viii) if such replaced Lender was replaced pursuant to
clause (c) above, such replacement financial institution(s) or other Persons
shall consent, at the time of such replacement, to each matter in respect of
which such replaced Lender had not consented and (ix) any such replacement shall
not be deemed to be a waiver of any rights that any Loan Party, the
Administrative Agent or any other Lender shall have against the replaced
Lender. The Borrower may not elect to replace any Lender pursuant to
this Section 2.25 that is also an Issuing Lender unless, prior to the
effectiveness of such election, the Borrower shall have caused each outstanding
Letter of Credit issued thereby to be cancelled. Upon the payment of
all amounts owing to any replaced Lender in accordance with this Section 2.25,
such replaced Lender shall no longer constitute a “Lender” for purposes hereof;
provided, any rights of such Lender to indemnification hereunder shall survive
as to such Lender.
2.26 Incremental
Facilities.
(a) (a) On
or prior to December 31, 2008, the Borrower may, by written notice to the
Administrative Agent, request the establishment of one or more new term loan
commitments (any term loan commitments established pursuant to this Section 2.26
being referred to as “New Term Loan Commitments”) to be funded on or prior to
December 31, 2008, in an amount not in excess of $150,000,000 in the aggregate
and not less than $50,000,000 individually (or such lesser amount which shall be
approved by the Administrative Agent) or an integral multiple of $5,000,000 in
excess thereof. On or after the date on which the first Compliance
Certificate is delivered after the Initial Phase II Calculation Date (and, with
respect to any New Revolving Credit Commitments, prior to the Revolving Credit 2
Termination Date), the Borrower may by written notice to the Administrative
Agent request (i) an increase to the existing Revolving Credit 2
Commitments (any such increase, the “New Revolving Credit
Commitments”) and/or (ii) the establishment of one or more new term
loan commitments (the “New Term Loan
Commitments”), in an amount not in excess of $300,000,000 in the
aggregate and not less than $50,000,000 individually (or such lesser amount
which shall be approved by the Administrative Agent) or an integral multiple of
$5,000,000 in excess thereof. Each such notice shall set forth
(A) the date (each, an “Increased Amount
Date”) on which the Borrower proposes that the New Revolving Credit
Commitments or New Term Loan Commitments, as applicable, shall be effective,
which shall be a date not less than 15 Business Days after the date on which
such notice is delivered to the Administrative Agent; (B) the identity of
each Lender or other Person that is an Eligible Assignee (each, a “New Revolving Credit
Lender” or “New
Term Loan Lender”, as applicable) to whom the Borrower proposes any
portion of such New Revolving Credit Commitments or New Term Loan Commitments,
as applicable, be allocated and the amounts of such allocations (provided that
any Lender approached to provide all or a
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portion
of the New Revolving Credit Commitments or New Term Loan Commitments may elect
or decline, in its sole discretion, to provide a New Revolving Credit Commitment
or a New Term Loan Commitment) and (C) to the extent the 2014 Notes remain
outstanding, a certification by the Borrower that the establishment of the New
Revolving Credit Commitments and/or the New Term Loan Commitments, as
applicable, does not violate any provisions of the 2014 Notes Indenture, or has
otherwise been consented to by any party whose consent is required by the terms
thereof. The establishment of the New Revolving Credit Commitments
and New Term Loan Commitments shall be subject to the following conditions:
(1) no Default or Event of Default shall exist on such Increased Amount
Date before or after giving effect to such New Revolving Credit Commitments or
New Term Loan Commitments, as applicable; (2) both before and after giving
effect to the making of any Series of New Term Loans, each of the conditions set
forth in Section 5.2 or 5.3, as applicable, shall be satisfied;
(3) the Borrower and its Subsidiaries shall be in pro forma compliance with
each of the covenants set forth in Section 7.1 as of the most recent
Quarterly Date of the Borrower after giving pro forma effect to such New
Revolving Credit Commitments or New Term Loan Commitments, fully drawn, as
applicable, on such date; (4) the New Revolving Credit Commitments or New
Term Loan Commitments, as applicable, shall be effected pursuant to one or more
Joinder Agreements executed and delivered by the Borrower, the Administrative
Agent and each applicable New Revolving Credit Lender or New Term Loan Lender,
as applicable, each of which shall be recorded in the Register and shall be
subject to the requirements set forth in Sections 2.20(f) and 2.20(g);
(5) the Borrower shall make any payments required pursuant to
Section 2.21 in connection with the New Revolving Credit Commitments or New
Term Loan Commitments, as applicable; and (6) the Borrower shall deliver or
cause to be delivered any legal opinions or other documents reasonably requested
by the Administrative Agent in connection with any such
transaction. Any New Term Loans made on an Increased Amount Date
shall be designated a separate series (a “Series”) of New Term Loans for all
purposes of this Agreement. Such New Revolving Credit Commitments or
New Term Loan Commitments shall become effective as of such Increased Amount
Date.
(b) On
any Increased Amount Date on which New Revolving Credit Commitments are
effected, subject to the satisfaction of the foregoing terms and conditions,
(i) each of the Revolving Credit 2 Lenders shall assign to each of the New
Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall
purchase from each of the Revolving Credit 2 Lenders, at the principal amount
thereof (together with accrued interest), such interests in the Revolving Credit
2 Loans outstanding on such Increased Amount Date as shall be necessary in order
that, after giving effect to all such assignments and purchases, such Revolving
Credit 2 Loans will be held by existing Revolving Credit 2 Lenders and New
Revolving Credit Lenders ratably in accordance with their Revolving Credit 2
Commitments after giving effect to the addition of such New Revolving Credit
Commitments to the Revolving Credit 2 Commitments, (ii) each New Revolving
Credit Commitment shall be deemed for all purposes a Revolving Credit 2
Commitment and each Loan made thereunder (a “New Revolving Credit
Loan”) shall be deemed, for all purposes, a Revolving Credit 2 Loan and
(iii) each New Revolving Credit Lender shall become a Lender with respect
to the New Revolving Credit Commitment and all matters relating
thereto.
(c) On
any Increased Amount Date on which any New Term Loan Commitments of any Series
are effective, subject to the satisfaction of the foregoing terms and
conditions, (i) each New Term Loan Lender of any Series shall make a Loan
to the Borrower (a
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“New Term Loan”) in an
amount equal to its New Term Loan Commitment of such Series, and (ii) each
New Term Loan Lender of any Series shall become a Lender hereunder with respect
to the New Term Loan Commitment of such Series and the New Term Loans of such
Series made pursuant thereto.
(d) The
Administrative Agent shall notify the Lenders promptly upon receipt of each
notice delivered by the Borrower pursuant to the first two sentences of Section
2.26(a) and in respect thereof (i) the New Revolving Credit Commitments or
the Series of New Term Loan Commitments, as applicable, and (ii) in the
case of each notice to any Revolving Credit 2 Lender, the respective interests
of such Revolving Credit 2 Lender in the Revolving Credit Loans, in each case
subject to the assignments contemplated by this Section 2.26.
(e) The
terms and provisions of the New Term Loans and New Term Loan Commitments of any
Series shall be, except as otherwise set forth herein or in the Joinder
Agreement, identical to the terms and provisions of the Term B
Loans. The terms and provisions (including applicable rates of
interest) of the New Revolving Credit Loans shall be identical to the Revolving
Credit 2 Loans. In any event (i) the weighted average life to
maturity of all New Term Loans of any Series shall be no shorter than the
weighted average life to maturity of the Term B Loans, (ii) the applicable
Scheduled New Term Loan Termination Date of each Series shall be no earlier than
the Scheduled Term B Loan Termination Date, and (iii) the rate of interest
applicable to the New Term Loans of each Series shall be determined by the
Borrower and the applicable New Term Loan Lenders and shall be set forth in each
applicable Joinder Agreement; provided, however, that to the
extent that the weighted average interest rate payable in respect of the New
Term Loans (whether in the form of interest, fees, original issue discount or a
combination of any thereof) is higher by more than 0.25% than the weighted
average interest rate payable in respect of the Term B Loans immediately prior
to the incurrence of any such New Term Loans, the interest rates applicable to
the existing Term B Loans shall increase to provide the existing Term B Loan
Lenders the same weighted average interest rate provided to the New Term Loan
Lenders. Each Joinder Agreement may, without the consent of any other
Lenders, effect such amendments to this Agreement and the other Loan Documents
as may be necessary or appropriate, in the opinion of the Administrative Agent,
to effect the provisions of this Section 2.26.
SECTION
3. LETTERS OF CREDIT
3.1 L/C
Commitment.
(a) Subject
to the terms and conditions hereof, the Issuing Lender, in reliance on the
agreements of the other Revolving Credit 2 Lenders set forth in Section 3.4(a),
agrees to issue standby and, if agreed to by the applicable Issuing Lender,
commercial letters of credit (“Letters of Credit”)
for the account of the Borrower on any Business Day during the Letter of Credit
Commitment Period in such form as may be approved from time to time by the
Issuing Lender; provided, that the
Issuing Lender shall have no obligation to issue any Letter of Credit if, after
giving effect to such issuance, (i) the L/C Obligations would exceed the L/C
Commitment or (ii) the aggregate amount of the Available Revolving Credit 2
Commitments would be less than zero. Each Letter of Credit shall (i)
be denominated in Dollars and (ii) expire no later than the earlier of (x) the
date which is one year after the date of issuance and (y) the
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date
which is five Business Days prior to the Scheduled Revolving Credit 2
Termination Date, provided that any
Letter of Credit may provide for the extension of the expiry date thereof for
additional one-year periods (which shall in no event extend beyond the date
referred to in subsection (y) above).
(b) The
Issuing Lender shall not at any time be obligated to issue any Letter of Credit
hereunder if such issuance would conflict with, or cause the Issuing Lender or
any L/C Participant to exceed any limits imposed by, any applicable Requirement
of Law.
3.2 Procedure for Issuance of
Letters of Credit.
(a) Prior
to (i) with respect to the Phase I Project, the Phase I Final Completion Date,
and (ii) with respect to the Phase II Project, the earlier of the Phase II Final
Completion Date and the Amended and Restated Disbursement Agreement Effective
Date, the Borrower shall have the right pursuant to this Section 3.2(a) to
request that the Issuing Lender issue a Letter of Credit to be utilized in
furtherance of the payment or support of Project Costs for the Phase I Project
or the Phase II Project, as the case may be. If the Borrower desires
that the Issuing Lender issue such a Letter of Credit, the Borrower may request
that the Issuing Lender issue a Letter of Credit by delivering to the Issuing
Lender and the Disbursement Agent, in each case in accordance with and pursuant
to the terms of Section 2.3 of the Disbursement Agreement, a Notice of Advance
Request in the form, at the times and as required under the Disbursement
Agreement. Notwithstanding any provision of the Disbursement
Agreement to the contrary, such Notice of Advance Request must be received by
the Issuing Lender at least 3 Business Days (or such shorter period agreed to by
the Issuing Lender) prior to the proposed date of issuance (in addition to such
other documents, certificates, documents and papers as the Issuing Lender may
request) and must contain all the information relevant to the proposed Letter of
Credit issuance as set forth in a Letter of Credit Request.
(b) The
Borrower shall have the right pursuant to this Section 3.2(b) to request that
the Issuing Lender issue a Letter of Credit (i) if prior to the Amended and
Restated Disbursement Agreement Effective Date, to be utilized for purposes
permitted hereby other than in furtherance of the payment or support for Project
Costs and (ii) if on or after the Amended and Restated Disbursement Agreement
Effective Date, to be utilized for general corporate purposes (including in
furtherance of the payment or support for Project Costs). If the
Borrower desires that the Issuing Lender issue such a Letter of Credit, the
Borrower may request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender and the Administrative Agent, at least 3
Business Days (or such shorter period agreed to by the Issuing Lender) prior to
the proposed date of issuance (such proposed date to be a Business Day), a
Letter of Credit Request accompanied by such other documents, certificates,
documents and papers as the Issuing Lender may reasonably request. Letter of
Credit Requests may be delivered by facsimile transmission.
Promptly
after the issuance or amendment of a Letter of Credit (in any event upon
satisfaction or waiver of the conditions precedent set forth in Section 5.2
or 5.3, as applicable), the Issuing Lender shall notify the Borrower and the
Administrative Agent, in writing, of such issuance or amendment and such notice
shall be accompanied by a copy of such issuance or amendment. Upon receipt of
such notice, the Administrative Agent shall promptly notify the Revolving Credit
2 Lenders in writing of such issuance or amendment and if so requested by any
such
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Lender
the Administrative Agent shall furnish such Lender with a copy of such issuance
or amendment. Notwithstanding the foregoing, the Issuing Lender shall
not be obligated to make any Letters of Credit available to the Borrower at a
time when a Lender Default exists unless the Issuing Lender has entered into
arrangements satisfactory to it to eliminate the Issuing Lender’s risk with
respect to the Defaulting Lender’s or Lenders’ participation in such Letters of
Credit.
3.3 Fees and Other
Charges.
(a) The
Borrower shall pay a fee on the aggregate drawable amount of each outstanding
Letter of Credit at a per annum rate equal to the Applicable Margin then in
effect with respect to Eurodollar Loans constituting Revolving Credit 2 Loans,
shared ratably among the Revolving Credit 2 Lenders and payable quarterly in
arrears on each L/C Fee Payment Date after the issuance date of such Letter of
Credit; provided, however, that any
such fee accrued with respect to any Defaulting Lender during the period prior
to the time such Lender became a Defaulting Lender and unpaid at such time shall
not be payable by the Borrower so long as such Lender shall be a Defaulting
Lender except to the extent that such fee shall otherwise have been due and
payable by such Borrower prior to such time; and provided further that no such
fee shall accrue for the benefit of a Defaulting Lender so long as such Lender
shall be a Defaulting Lender. In addition, the Borrower shall pay to
the Issuing Lender for its own account a fronting fee equal to 0.125% per annum
on the aggregate drawable amount of each outstanding Letter of Credit (but in
any event not less than $500.00 per annum per Letter of Credit), payable
quarterly in arrears on each L/C Fee Payment Date after the issuance date of
such Letter of Credit.
(b) In
addition to the foregoing fees, the Borrower shall pay or reimburse the Issuing
Lender for such normal and customary costs and expenses as are incurred or
customarily charged by the Issuing Lender in issuing, negotiating, effecting
payment under, amending or otherwise administering any Letter of
Credit.
3.4 L/C
Participations.
(a) The
Issuing Lender irrevocably agrees to grant and hereby grants to each L/C
Participant, and, to induce the Issuing Lender to issue Letters of Credit
hereunder, each L/C Participant irrevocably agrees to accept and purchase and
hereby accepts and purchases from the Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant’s own account and risk
an undivided interest equal to such L/C Participant’s Revolving Credit 2
Percentage in the Issuing Lender’s obligations and rights under each Letter of
Credit issued hereunder and the amount of each draft paid by the Issuing Lender
thereunder. Each L/C Participant unconditionally and irrevocably
agrees with the Issuing Lender that, if a draft is paid under any Letter of
Credit for which the Issuing Lender is not reimbursed in full by the Borrower in
accordance with the terms of this Agreement, such L/C Participant shall pay to
the Issuing Lender, regardless of the occurrence or continuance of a Default or
an Event of Default or the failure to satisfy any of the other conditions
specified in Section 5, upon demand, at the Issuing Lender’s address for notices
specified herein an amount equal to such L/C Participant’s Revolving Credit 2
Percentage of the amount of such draft, or any part thereof, that is not so
reimbursed. Each L/C Participant acknowledges and agrees that its
obligation to acquire participations and make payments pursuant to this
paragraph in respect of Letters of
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Credit
is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit, the occurrence and continuance of a Default or Event of Default, the
reduction or termination of the Commitments, any adverse change in the condition
(financial or otherwise) of the Borrower or any other Person or any breach
of this Agreement or any other Loan Document by the Borrower or any other Person
(including, without limitation, any other Revolving Credit 2 Lender), and each
such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.
(b) If
any amount required to be paid by any L/C Participant to the Issuing Lender
pursuant to Section 3.4(a) in respect of any unreimbursed portion of any payment
made by the Issuing Lender under any Letter of Credit is paid to the Issuing
Lender within three Business Days after the date such payment is due, such L/C
Participant shall pay to the Issuing Lender on demand an amount equal to the
product of (i) such amount, times (ii) the daily average Federal Funds Effective
Rate during the period from and including the date such payment is required to
the date on which such payment is immediately available to the Issuing Lender,
times (iii) a fraction the numerator of which is the number of days that elapse
during such period and the denominator of which is 360. If any such
amount required to be paid by any L/C Participant pursuant to Section 3.4(a) is
not made available to the Issuing Lender by such L/C Participant within three
Business Days after the date such payment is due, the Issuing Lender shall be
entitled to recover from such L/C Participant, on demand, such amount with
interest thereon calculated from such due date at the rate per annum applicable
to Base Rate Loans constituting Revolving Credit 2 Loans. A
certificate of the Issuing Lender submitted to any L/C Participant with respect
to any amounts owing under this Section shall be conclusive in the absence of
manifest error.
(c) Whenever,
at any time after the Issuing Lender has made payment under any Letter of Credit
and has received from any L/C Participant its pro rata share of such
payment in accordance with Section 3.4(a), the Issuing Lender receives any
payment related to such Letter of Credit (whether directly from the Borrower or
otherwise, including proceeds of collateral applied thereto by the Issuing
Lender), or any payment of interest on account thereof, the Issuing Lender will
distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the
event that any such payment received by the Issuing Lender shall be required to
be returned by the Issuing Lender, such L/C Participant shall return to the
Issuing Lender the portion thereof previously distributed by the Issuing Lender
to it.
3.5 Reimbursement Obligation of
the Borrower. If
any draft or other form of demand shall be presented for payment under any
Letter of Credit, the Issuing Lender shall promptly notify the Borrower and the
Administrative Agent of the date and amount thereof. The Borrower
agrees to reimburse the Issuing Lender within one Business Day of the date on
which the Issuing Lender notifies the Borrower of the date and amount of a draft
presented under any Letter of Credit and paid by the Issuing Lender for the
amount of (a) such draft so paid and (b) any taxes, fees, charges or other costs
or expenses incurred by the Issuing Lender in connection with such payment (the
amounts described in the foregoing subsections (a) and (b) in respect of any
drawing, collectively, the “Payment
Amount”). Each such payment shall be made to the
Administrative Agent at the Payment Office, for the account of the Issuing
Lender, in Dollars and in immediately available funds. The
Administrative Agent shall distribute such payments to the Issuing Lender
promptly upon receipt at its address for notices specified herein in like funds
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as
received. Interest shall be payable on each Payment Amount from the
date of the applicable drawing until payment in full at the rate set forth for
Revolving Credit 2 Loans in (i) until the first Business Day following the date
notice of the applicable drawing is received by the Borrower from the Issuing
Lender, Section 2.15(b) and (ii) thereafter, Section 2.15(c). Each
drawing under any Letter of Credit shall (unless an event of the type described
in subsection (i) or (ii) of Section 8(f) shall have occurred and be continuing
with respect to the Borrower, in which case the procedures specified in Section
3.4 for funding by L/C Participants shall apply) constitute a request by the
Borrower to the Administrative Agent for a borrowing of Revolving Credit 2 Loans
that are Base Rate Loans (or, at the option of the Administrative Agent and the
Swing Line Lender in their sole discretion, a borrowing pursuant to Section 2.7
of Swing Line Loans) in the amount of such drawing. The Borrowing
Date with respect to such borrowing shall be the first date on which the
conditions set forth in Section 5.3 (other than Section 5.3(a)) are
satisfied (or, if Swing Line Loans are then available, the first date on which
the conditions set forth in Section 2.7 are satisfied) after such drawing under
such Letter of Credit.
3.6 Responsibility of Issuing
Lender With Respect to Requests for Drawings and Payments; Obligations
Absolute.
(a) In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to examine the
documents delivered under such Letter of Credit with reasonable care so as to
ascertain whether they appear on their face to be in accordance with the terms
and conditions of such Letter of Credit. As between the Borrower and
the Issuing Lender, the Borrower assumes all risks of the acts and omissions of,
or misuse of the Letters of Credit issued by the Issuing Lender, by the
respective beneficiaries of such Letters of Credit. In furtherance
and not in limitation of the foregoing, the Issuing Lender shall not be
responsible for: (i) the form, validity, sufficiency, accuracy, genuineness
or legal effect of any document submitted by any party in connection with the
application for and issuance of any such Letter of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any such Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary of any such Letter of Credit to comply
fully with any conditions required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in transmission or delivery
of any messages, by mail, cable, telegraph, telex or otherwise, whether or not
they be in cipher; (v) errors in interpretation of technical terms; (vi)
any loss or delay in the transmission or otherwise of any document required in
order to make a drawing under any such Letter of Credit or of the proceeds
thereof; (vii) the misapplication by the beneficiary of any such Letter of
Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any
consequences arising from causes beyond the control of the Issuing Lender,
including any act or omission of any present or future Governmental Authority;
none of the above shall affect or impair, or prevent the vesting of, any the
Issuing Lender’s rights or powers hereunder. Without limiting the
foregoing and in furtherance thereof, any action taken or omitted by the Issuing
Lender under or in connection with the Letters of Credit or any documents and
certificates delivered thereunder, if taken or omitted (subject to the next
sentence) in good faith, shall not give rise to any liability on the part of the
Issuing Lender to the Borrower. Notwithstanding anything to the
contrary contained in this Section 3.6(a), the Borrower shall retain any and all
rights it may have against
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the
Issuing Lender for any liability arising solely out of the gross negligence or
willful misconduct of the Issuing Lender.
(b) The
obligation of the Borrower to reimburse the Issuing Lender for drawings honored
under the Letters of Credit issued by it and to repay any Revolving Credit 2
Loans made by Lenders pursuant to this Section 3 and the obligations of Lenders
under Section 3.4 shall be unconditional and irrevocable and shall be performed
strictly in accordance with the terms hereof under all circumstances including
any of the following circumstances: (i) any lack of validity or enforceability
of any Letter of Credit; (ii) the existence of any claim, set-off, defense or
other right which the Borrower or any Lender may have at any time against a
beneficiary or any transferee of any Letter of Credit (or any Persons for whom
any such transferee may be acting), the Issuing Lender, any Lender or any other
Person or, in the case of a Lender, against the Borrower, whether in connection
herewith, the transactions contemplated herein or any unrelated transaction
(including any underlying transaction between the Borrower or one of its
Subsidiaries and the beneficiary for which any Letter of Credit was procured);
(iii) any draft or other document presented under any Letter of Credit proving
to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; (iv) payment by the
Issuing Lender under any Letter of Credit against presentation of a draft or
other document which does not substantially comply with the terms of such Letter
of Credit; (v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of any Loan Party; (vi)
any breach hereof or any other Loan Document by any party thereto; (vii) any
other circumstance or happening whatsoever, whether or not similar to any of the
foregoing; or (viii) the fact that an Event of Default or a Default shall have
occurred and be continuing; provided, in each
case, that any action taken by the Issuing Lender with respect to the applicable
Letter of Credit shall not have constituted gross negligence or willful
misconduct of the Issuing Lender.
SECTION
4. REPRESENTATIONS AND WARRANTIES
To
induce the Arrangers, the Agents, the Managers and the Lenders to enter into
this Agreement and to make the Loans and issue or participate in the Letters of
Credit, the Borrower hereby represents and warrants to each Arranger, each
Agent, each Manager and each Lender that the following statements are true and
correct (provided that (a) with respect to Sections 4.25(h) and 4.26, such
representations and warranties shall not be made, as they relate to the Phase II
Project, at any time prior to the Phase II Opening Date and (b) representations
and warranties made with respect to the Completion Guarantor shall only be made
until the Phase II Final Completion Date):
4.1 Financial
Condition. The
audited consolidated balance sheets of the Borrower and its consolidated
Subsidiaries as at December 31, 2005, and the related consolidated statements of
income and of cash flows for the Fiscal Year ended on such date, reported on by
and accompanied by an unqualified report from Deloitte & Touche LLP, present
fairly in all material respects the consolidated financial condition of the
Borrower and its consolidated Subsidiaries as at such date, and the consolidated
results of its operations and its consolidated cash flows for such Fiscal
Year. The unaudited consolidated balance sheets of the Borrower and
its consolidated Subsidiaries as at March 31, 2006, or if available on or prior
to the Amended and Restated Effective Date, June 30, 2006, and the related
unaudited consolidated
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statements
of income and cash flows for the 3-month period (or, in the event the June 30,
2006 unaudited consolidated balance sheets are available, the 6-month period)
ended on such date, present fairly in all material respects the consolidated
financial condition of the Borrower and its consolidated Subsidiaries as at such
date, and the consolidated results of its operations and its consolidated cash
flows for the 3-month period (or, in the event the June 30, 2006 unaudited
consolidated balance sheets are available, the 6-month period) then ended
(subject to normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by the aforementioned firm of accountants and
disclosed therein and except with respect to interim financials, normal year-end
audit adjustments). As of the Amended and Restated Effective Date,
the Borrower and its Subsidiaries do not have any material Guarantee
Obligations, contingent liabilities and liabilities for taxes, or any long-term
leases or unusual forward or long-term commitments, including, without
limitation, any interest rate or foreign currency swap or exchange transaction
or other obligation in respect of derivatives, that are not reflected in the
most recent financial statements referred to in this paragraph.
4.2 No Change. Since
December 31, 2005, there have been no developments or events that, individually
or collectively, have had or could reasonably be expected to have a Material
Adverse Effect.
4.3 Corporate/LLC Existence;
Compliance with Law. Each
of the Loan Parties, Xxxx Resorts Holdings and the Completion Guarantor (a) is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the corporate or limited liability
company power and authority, and the legal right, to own and operate its
Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation or limited liability company and in good standing under the laws of
each jurisdiction where its ownership, lease or operation of Property or the
conduct of its business requires such qualification, except to the extent the
failure to be so qualified or in good standing could not reasonably be expected
to have a Material Adverse Effect and (d) is in compliance with all Requirements
of Law except to the extent that the failure to comply therewith could not, in
the aggregate, reasonably be expected to have a Material Adverse
Effect.
4.4 Power; Authorization;
Enforceable Obligations. Each
Loan Party, Xxxx Resorts Holdings and the Completion Guarantor has the corporate
or limited liability company power, as the case may be, and authority, and the
legal right, to execute, deliver and perform the Loan Documents, the Financing
Agreements and the Material Contracts to which it is a party and to carry out
the transactions contemplated thereby and, in the case of the Borrower, to
borrow hereunder. Each Loan Party, Xxxx Resorts Holdings and the
Completion Guarantor has taken all necessary corporate or limited liability
company action, as the case may be, to authorize the execution, delivery and
performance of the Loan Documents, the Financing Agreements and the Material
Contracts to which it is a party and, in the case of the Borrower, to authorize
the borrowings and issuances of Indebtedness on the terms and conditions of this
Agreement. No consent or authorization of, filing with, notice to or
other act by or in respect of, any Governmental Authority or any Person (other
than a Loan Party) is required to be obtained, made or taken by a Loan Party in
connection with the borrowings hereunder or with the execution,
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delivery,
performance, validity or enforceability of this Agreement or any of the Loan
Documents, except (i) consents, authorizations, filings and notices
described in Schedule
4.4, which consents, authorizations, filings and notices have, unless
otherwise indicated on Schedule 4.4, been
obtained or made (or waived) and are in full force and effect and (ii) the
filings and actions referred to in Section 4.19. Each Loan Document,
Financing Agreement and Material Contract has been duly executed and delivered
on behalf of the Completion Guarantor, Xxxx Resorts Holdings and each Loan Party
party thereto. This Agreement constitutes, and each other Loan
Document, Financing Agreement and Material Contract upon execution will
constitute, a legal, valid and binding obligation of the Completion Guarantor,
Xxxx Resorts Holdings and each Loan Party party thereto, enforceable against the
Completion Guarantor, Xxxx Resorts Holdings and each Loan Party party thereto in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
4.5 No Legal
Bar. The
execution, delivery and performance of this Agreement, the other Loan Documents,
the Financing Agreements and the Material Contracts, the issuance of Letters of
Credit, the borrowings hereunder and the use of the proceeds thereof will not
violate any Requirement of Law or any Contractual Obligation of the Completion
Guarantor, Xxxx Resorts Holdings or any Loan Party (except, in the case of the
Material Contracts, to the extent that any such violations (individually or in
the aggregate) could not reasonably be expected to have a Material Adverse
Effect) and will not result in, or require, the creation or imposition of any
Lien on any of their respective Properties or revenues pursuant to any
Requirement of Law or any such Contractual Obligation (other than the Liens
created by the Security Documents, the other First Lien Security Documents and
the Second Lien Security Documents). No Requirement of Law or
Contractual Obligation applicable to the Completion Guarantor, Xxxx Resorts
Holdings or any Loan Party could, individually or collectively, reasonably be
expected to have a Material Adverse Effect. Other than amounts that
have been paid in full, no fees or taxes, including without limitation stamp,
transaction, registration or similar taxes, are required to be paid by the Loan
Parties for the legality, validity, or enforceability of any Financing
Agreements and, except to the extent that the failure to so pay any such fees or
taxes could not (individually or in the aggregate) reasonably be expected to
have a Material Adverse Effect, any Material Contracts.
4.6 No Material
Litigation. No
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Completion Guarantor, Xxxx Resorts Holdings or any
Loan Party or against any of their respective properties or revenues and, to the
knowledge of the Borrower, no litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or threatened by or
against any Major Project Participant or against any of its properties or
revenues, in any such case (a) with respect to any of the Financing Agreements
or any of the transactions contemplated hereby or thereby or (b) that,
individually or collectively, could reasonably be expected to have a Material
Adverse Effect.
4.7 No
Default. Neither
the Completion Guarantor, Xxxx Resorts Holdings nor any Loan Party is in default
under or with respect to any of its Contractual Obligations in any
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respect
that, individually or collectively, could reasonably be expected to have a
Material Adverse Effect. No Default or Event of Default has occurred
and is continuing.
4.8 Ownership of Property;
Liens. Each
of the Loan Parties is the sole owner of, legally and beneficially, and has
good, marketable and insurable title to, or has a valid leasehold interest in,
all its Real Estate, and good title to, a valid leasehold interest in or a valid
right to use, all its other material Property, and none of such Property is
subject to any claims, liabilities, obligations, charges or restrictions of any
kind, nature or description (other than claims, liabilities, obligations,
charges or restrictions that individually or in the aggregate could not
reasonably be expected to materially interfere with the Loan Parties’ intended
use of such Property) or to any Lien except for Permitted Liens. None
of the Pledged Stock is subject to any Lien except for Permitted
Liens.
4.9 Intellectual
Property.
(a) Each
Loan Party owns, or is licensed or otherwise has the right to use, all
Intellectual Property that is material to the conduct of its business as
currently conducted. No claim has been asserted or is pending by any
Person challenging the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does the Borrower know of
any valid basis for any such claim, except (i) with respect to the Intellectual
Property related to or otherwise associated with the Loan Parties’ use of the
“Xxxx” name, such claims that, if determined adversely to a Loan Party, could
not reasonably be expected to have a material adverse effect on such Loan
Party’s ability to use the “Xxxx” name in its Permitted Business as currently
used or contemplated to be used and (ii) with respect to all other Intellectual
Property, as could not, individually or collectively, reasonably be expected to
have a Material Adverse Effect. The use by each Loan Party of the
Intellectual Property related to or otherwise associated with such Loan Party’s
use of the “Xxxx” name does not infringe on the rights of any Person, which
infringement could reasonably be expected to have a material adverse effect on
such Loan Party’s ability to use the “Xxxx” name in its Permitted Business as
currently used or contemplated to be used. The use by each Loan Party
of Intellectual Property other than Intellectual Property related to or
otherwise associated with such Loan Party’s use of the “Xxxx” name, does not
infringe on the rights of any Person, which infringement, individually or
collectively, could reasonably be expected to have a Material Adverse
Effect.
(b) As
of the Amended and Restated Effective Date, Schedule 4.9(b) (i)
identifies each of the trademarks, service marks and trade name applications and
registrations currently applied for or registered by, directly or indirectly,
each of the Loan Parties and identifies which such Person applied for or
registered such Intellectual Property and (ii) specifies as to each, the
jurisdiction in which such Intellectual Property has been issued or registered
(or, if applicable, in which an application for such issuance or registration
has been filed), including the respective registration or application numbers
and applicable dates of registration or application and expiration.
(c) As
of the Amended and Restated Effective Date, Schedule 4.9(c) (i)
identifies each of the material patents and patent applications currently
applied for or owned by, directly or indirectly, each of the Loan Parties and
identifies which such Person applied for or owns such Intellectual Property and
(ii) specifies as to each, the jurisdiction in which such
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Intellectual
Property has been issued or registered (or, if applicable, in which an
application for such issuance or registration has been filed), including the
respective patent or application numbers and applicable dates of issuance or
application and expiration.
(d) As
of the Amended and Restated Effective Date, Schedule 4.9(d) (i)
identifies each of the material copyrights and copyright applications and
registrations currently applied for or registered by, directly or indirectly,
each of the Loan Parties and identifies which such Person applied for or
registered such Intellectual Property and (ii) specifies as to each, the
jurisdiction in which such Intellectual Property has been issued or registered
(or, if applicable, in which an application for such issuance or registration
has been filed), including the respective registration or application numbers
and applicable dates of registration or application and expiration.
(e) As
of the Amended and Restated Effective Date, Schedule 4.9(e)
identifies all licenses, sublicenses and other agreements relating to
Intellectual Property to which any of the Loan Parties is a party that are
material to the conduct of such Loan Party’s Permitted Business and pursuant to
which (i) any of the Loan Parties is a licensor, sub-licensor, licensee or
sub-licensee or the equivalent or (ii) any other Person is authorized to
use any Intellectual Property as a licensee, sub-licensee or the
equivalent.
4.10 Taxes.
(a) Each
of the Completion Guarantor, Xxxx Resorts Holdings and the Loan Parties has
filed, or caused to be filed, all federal and state income tax and informational
returns that are required to have been filed by it in any jurisdiction, and all
such tax and informational returns are correct and complete in all material
respects. Each of the Completion Guarantor, Xxxx Resorts Holdings and
the Loan Parties has paid all taxes shown to be due and payable on such returns
and all other material taxes and assessments payable by it, to the extent the
same have become due and payable (other than (x) those taxes that it is
contesting in good faith and by appropriate proceedings and (y) taxes that are
not yet due, with respect to each of which it has established reserves that are
adequate for the payment thereof and as are required by GAAP).
(b) There
are no Liens for Taxes on any of the Properties of the Completion Guarantor or
any of the Loan Parties other than Liens permitted pursuant to Section
7.3(a).
4.11 Federal
Regulations. Neither
Xxxx Resorts Holdings, the Borrower nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of “purchasing” or “carrying” any “margin stock” (in each
case within the meaning of Regulation U). No part of the proceeds of
the Loans made or Letters of Credit issued hereunder will be used to purchase or
carry any such margin stock or to extend credit to others for the purpose of
purchasing or carrying any such margin stock or for any purpose that violates
the provisions of Regulation T, Regulation U or Regulation X.
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4.12 Labor Matters and Acts of
God.
(a) There
are no strikes, stoppages, slowdowns or other labor disputes pending against any
of the Loan Parties or, to the knowledge of the Borrower, pending against any
Major Project Participant or threatened against any Loan Party or, to the
knowledge of the Borrower, any Major Project Participant that (individually or
in the aggregate) could reasonably be expected to have a Material Adverse
Effect. Hours worked by and payment made to employees of the Loan
Parties are not in violation of the Fair Labor Standards Act or any other
applicable Requirement of Law dealing with such matters that (individually or in
the aggregate) could reasonably be expected to have a Material Adverse
Effect.
(b) Neither
the business nor the Properties of any Loan Party, nor, to the knowledge of
the Borrower, any Major Project Participant is affected by any fire, explosion,
accident, drought, storm, hail, earthquake, embargo, act of God or of the public
enemy, or other casualty or event of force majeure, that could reasonably be
expected to have a Material Adverse Effect.
4.13 ERISA. Except
in each case as could not reasonably be expected to result in a material
liability to the Loan Parties, (a) neither a Reportable Event nor an
“accumulated funding deficiency” (within the meaning of Section 412 of the
Code or Section 302 of ERISA) has occurred during the five-year period prior to
the date on which this representation is made or deemed made with respect to any
Plan, and each Plan has complied in all material respects with all applicable
provisions of ERISA and the Code, (b) no termination of a Single Employer Plan
has occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such
five-year period, (c) the actuarial present value of all benefit liabilities
under each Single Employer Plan (based on those assumptions that would be used
to determine whether each such Single Employer Plan could be terminated in a
standard termination under Section 4041(b) of ERISA) did not, as of the last
annual valuation date prior to the date on which this representation is made or
deemed made, exceed the value of the assets of such Plan allocable to such
accrued benefits, (d) neither the Borrower, any other Loan Party nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan and neither the Borrower, any other Loan Party nor any
Commonly Controlled Entity would become subject to any material liability under
ERISA if any such Person were to withdraw completely from all Multiemployer
Plans as of the most recent valuation date for which each such Multiemployer
Plan has furnished data regarding potential withdrawal liability to the
applicable Loan Party and (e) as of the Amended and Restated Effective Date, no
such Multiemployer Plan is in Reorganization or Insolvent.
4.14 Investment Company Act;
Other Regulations. Neither
the Completion Guarantor, Xxxx Resorts Holdings nor any Loan Party is subject to
regulation under the Federal Power Act, or the Interstate Commerce Act or
registration under the Investment Company Act of 1940 or under any other federal
or state statute or regulation which may limit its ability to incur Indebtedness
other than the Nevada Gaming Laws or which may otherwise render all or any
portion of the Obligations unenforceable. Incurrence of the
Obligations by the Completion Guarantor, Xxxx Resorts Holdings and the Loan
Parties under the Loan Documents complies with all applicable provisions of the
Nevada Gaming Laws, subject to any information filings or reports required by
Nevada Gaming Commission Regulation 8.1.30 that are not yet required to have
been made.
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4.15 Subsidiaries.
(a) The
Persons listed on Schedule 4.15
constitute all the Subsidiaries of the Borrower as of the Amended and Restated
Effective Date. Schedule 4.15 sets
forth as of the Amended and Restated Effective Date, the name and jurisdiction
of formation of each Subsidiary of the Borrower and, as to each such Subsidiary,
the percentage and number of each class of Capital Stock owned by the
Borrower. Each such Subsidiary is a Wholly Owned Subsidiary of the
Borrower.
(b) There
are no outstanding subscriptions, options, warrants, calls, rights or other
agreements or commitments (other than stock options granted to employees,
officers or directors and directors’ qualifying shares) of any nature relating
to any Capital Stock of the Borrower or any Subsidiary of the
Borrower. Neither the Borrower nor any of its Subsidiaries have
issued, or authorized the issuance of, any Disqualified Stock.
(c) Neither
the Borrower nor any of its Subsidiaries are engaged in any businesses other
than the Permitted Businesses.
4.16 Use of Proceeds; Letters of
Credit. Subject
to the terms of the Disbursement Agreement and this Agreement, the proceeds of
the extensions of credit under this Agreement shall be used (a) for the
payment of transaction costs, fees and expenses incurred in connection with this
Agreement and the transactions contemplated hereby, (b) to pay Project
Costs, (c) to pay certain Obligations under the Original Credit Agreement
and (d) for working capital and general corporate purposes; provided that the
proceeds of any New Term Loans made on or prior to December 31, 2008 shall be
used for the payment of Project Costs.
4.17 Environmental
Matters.
(a) To
the knowledge of the Borrower, the Loan Parties: (i) are, and
within the period of all applicable statutes of limitation have been, in
compliance with all applicable Environmental Laws; and (ii) reasonably believe
that compliance with all applicable Environmental Laws that are or are
reasonably expected to become applicable to any of them will be timely attained
and maintained except, in each case, to the extent any violation could not
reasonably be expected to result in any material liability to the Loan Parties
or their Properties or in an inability of the Loan Parties to perform their
respective obligations in any material respect under the Operative
Documents.
(b) To
the knowledge of the Borrower, Hazardous Substances are not present at, on,
under, in, or about any real property now or formerly owned, leased or operated
by any of the Loan Parties, or at any other location (including, without
limitation, any location to which Hazardous Substances have been sent for re-use
or recycling or for treatment, storage, or disposal) which could, individually
or collectively, reasonably be expected to (i) give rise to liability of any of
the Loan Parties under any applicable Environmental Law or otherwise result in
costs to any of the Loan Parties that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, or (ii) materially
interfere with any of the Loan Parties’ continued operations, or (iii)
materially impair the fair saleable value of any real property owned or leased
by any of the Loan Parties.
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(c) Except
as could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, there is no judicial, administrative, or arbitral
proceeding (including any notice of violation or alleged violation) under or
relating to any Environmental Law (including, without limitation, any
Environmental Claims) to which any of the Loan Parties is, or to the knowledge
of the Borrower will be, named as a party that is pending or, to the knowledge
of the Borrower, threatened.
(d) Except
as could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, no Loan Party has received any written request for
information, or been notified that it is a potentially responsible party, under
or relating to the federal Comprehensive Environmental Response, Compensation,
and Liability Act or any similar Environmental Law.
(e) Except
as could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, no Loan Party has entered into or agreed to any consent
decree, order, or settlement or other agreement, or is subject to any judgment,
decree, or order or other agreement, in any judicial, administrative, arbitral,
or other forum for dispute resolution, relating to compliance with or liability
under any Environmental Law or Environmental Claim.
(f) Except
as could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, no Loan Party has assumed or retained, by contract or
operation of law, any liabilities of any kind, fixed or contingent, known or
unknown, under any Environmental Law or with respect to any Hazardous
Substances.
(g) Except
as could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, (i) Hazardous Materials Activities are not presently
occurring, and have not previously occurred, at, on, under, in, or about any
Real Estate now or formerly owned, leased or operated by any of the Loan Parties
and (ii) none of the Loan Parties have ever engaged in any Hazardous Materials
Activities at any location.
4.18 Accuracy of Information,
etc. No
statement or information contained in this Agreement, any other Loan Document,
the Confidential Information Memorandum or any other document, certificate or
statement furnished, in each case in writing and other than projections,
estimates and other forward-looking information, to the Arrangers, the Agents,
the Managers or the Lenders or any of them, by or on behalf of any Loan Party
for use in connection with the transactions contemplated by this Agreement or
the other Loan Documents, taken as a whole, contained as of the date such
statement, information, document or certificate was so furnished (or, in the
case of the Confidential Information Memorandum, as of the date of this
Agreement), any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained herein or
therein not misleading in light of the circumstances in which such statements
were made. The projections, estimates and other forward-looking
information and pro forma financial
information contained in the materials referenced above (including, without
limitation, the Projections) are based upon good faith estimates and assumptions
believed by management of the Borrower to be reasonable at the time made, it
being recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact, that no assurance is given that the
results forecasted in such
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financial
information will be achieved and that actual results during the period or
periods covered by such financial information are subject to significant
uncertainties (many of which are not in the control of the Loan Parties) and may
differ from the projected results set forth therein by a material
amount.
4.19 Security
Documents.
(a) The
Security Agreement is effective to create in favor of the Collateral Agent, for
the benefit of the Secured Parties, a legal, valid and binding security interest
in the Collateral described therein and proceeds and products
thereof. In the case of the certificated Pledged Stock, when any
stock or membership certificates representing such certificated Pledged Stock
are delivered to the Collateral Agent with a corresponding endorsement, and in
the case of the other Collateral described in the Security Agreement, when
financing statements in appropriate form are filed in the offices specified on
Schedule 4.19(a)-1
and such other filings and actions as are specified on Schedule 3 to the
Security Agreement are made and taken (which may or may not be required pursuant
to the terms of the Security Agreement), the Security Agreement shall constitute
a fully perfected Lien on, and security interest in, all right, title and
interest of Xxxx Resorts Holdings and the Loan Parties in such Collateral and
the proceeds and products thereof, as security for the Obligations, in each case
subject only to Permitted Liens and prior and superior in right to any other
Lien (except Senior Permitted Liens). Schedule 4.19(a)-2
lists as of the Amended and Restated Effective Date each UCC Financing Statement
that names Xxxx Resorts Holdings or any Loan Party as debtor and will remain on
file after the Amended and Restated Effective Date.
(b) Each
of the Mortgages is effective to create in favor of the Collateral Agent, for
the benefit of the Secured Parties, a legal, valid and binding Lien on, and
security interest in, the Mortgaged Properties described therein and proceeds
and products thereof, and when the Mortgages and related fixture filings are
filed in the offices specified on Schedule 4.19(b),
each such Mortgage shall constitute a fully perfected Lien on, and security
interest in, all of the Mortgaged Properties and the proceeds and products
thereof, as security for the Obligations, in each case subject only to Permitted
Liens and prior and superior in right to any other Lien (except Senior Permitted
Liens).
(c) The
Intellectual Property Security Agreements are effective to create in favor of
the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and
binding security interest in the Intellectual Property Collateral described
therein and proceeds and products thereof. With respect to domestic
Intellectual Property Collateral, upon (i) the filing and recordation of
the Intellectual Property Security Agreements in the appropriate indexes of the
United States Patent and Trademark Office relative to patents and trademarks,
and the United States Copyright Office relative to copyrights, together with
payment of all requisite fees and (ii) the filing of financing statements
in appropriate form for filing in the offices specified on Schedule 4.19(c)
(which financing statements have been duly completed and filed by the Collateral
Agent in accordance with applicable Requirements of Law) the Intellectual
Property Security Agreements shall constitute a perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in the
Intellectual Property Collateral and the proceeds and products thereof, as
security for the Obligations, in each case subject only to Permitted Liens and
prior and superior in right to any other Lien (except Senior Permitted
Liens).
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(d) The
Control Agreements are effective to create in favor of the Collateral Agent, for
the benefit of the Secured Parties, a legal, valid and binding security interest
in the Accounts described therein and proceeds and products
thereof. Upon the execution of the Control Agreements, the Control
Agreements shall constitute perfected Liens on, and security interests in, all
right, title and interest of the Loan Parties in the Accounts and the proceeds
and products thereof, as security for the Obligations, in each case subject only
to Permitted Liens and prior and superior in right to any other Lien (except
Senior Permitted Liens).
4.20 Solvency. The
Loan Parties taken as a whole, each significant Loan Party and the Completion
Guarantor are, and immediately after giving effect to (a) the incurrence of all
Indebtedness, (b) the use of the proceeds of such Indebtedness (including,
without limitation, the use of proceeds of the extensions of credit made by the
Lenders hereunder) and (c) obligations being incurred in connection with the
Operative Documents, will be Solvent.
4.21 Senior
Indebtedness. The
Obligations (including, without limitation, the guarantee obligations of each
Guarantor under the Loan Documents) constitute senior secured debt of each of
the Loan Parties and “Permitted Debt” under and as defined in the
2014 Notes Indenture. The 2014 Notes are the legal, valid
and binding obligations of the Borrower and Capital Corp., enforceable against
the Borrower and Capital Corp. in accordance with their terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors’ rights generally or by equitable principles
relating to enforceability. The issuance and sale of the 2014 Notes
by Borrower and Capital Corp. did not violate any applicable federal or state
securities laws.
4.22 Regulation
H. No
Mortgage encumbers improved real property which is located in an area that has
been identified by the Secretary of Housing and Urban Development as an area
having special flood hazards and in which flood insurance has been made
available under the National Flood Insurance Act of 1968.
4.23 Insurance. Each
of the Loan Parties is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which it is engaged and in any event in
accordance with Section 6.5. None of the Loan Parties has any reason
to believe that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers at a cost that could not reasonably be expected to have a Material
Adverse Effect (other than as a result of general market
conditions).
4.24 Performance of Agreements;
Material Contracts. No
Loan Party is in default in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in any of its Contractual
Obligations, and no condition exists that, with the giving of notice or the
lapse of time or both, would constitute such a default, in each case, except
where the consequences of such default or defaults, if any, could not reasonably
be expected to have a Material Adverse Effect. Schedule 4.24
contains a true, correct and complete list of the Material Contracts in effect
on the Amended and Restated Effective Date.
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4.25 Real
Estate.
(a) As
of the Amended and Restated Effective Date, Schedule 4.25(a) sets
forth a true, complete and correct list of all Real Estate, including a brief
description thereof, including, in the case of leases, the street address,
landlord name, tenant name, current rent amount, lease date and lease expiration
date. The Borrower has delivered to the Administrative Agent true,
complete and correct copies of all such leases.
(b) All
Real Estate and the current use thereof complies with all applicable
Requirements of Law (including building and zoning ordinances and codes) and
with all Insurance Requirements, and none of the Loan Parties are non-conforming
users of such Real Estate, except where noncompliance or such non-conforming use
could not, individually or collectively, reasonably be expected to have a
Material Adverse Effect.
(c) No
Taking has been commenced or, to the Borrower’s knowledge, is contemplated with
respect to all or any portion of any Real Estate or for the relocation of
roadways providing access to such Real Estate except, in each case, as could
not, individually or collectively, reasonably be expected to have a Material
Adverse Effect.
(d) Except
for those disclosed in the Title Policies or as set forth on Schedule 4.25(d), as
of the Amended and Restated Effective Date there are no current, pending or, to
the knowledge of the Borrower, proposed special or other assessments (other than
for ad valorem taxes) for public improvements or otherwise affecting any Real
Estate, nor are there any contemplated improvements to such Real Estate that may
result in such special or other assessments. There are no current,
pending or, to the knowledge of the Borrower, proposed special or other
assessments for public improvements or otherwise affecting any Real Estate, nor
are there any contemplated improvements to such Real Estate that may result in
such special or other assessments, in any case that could reasonably be expected
to result in a material liability to any Loan Party.
(e) None
of the Loan Parties has suffered, permitted or initiated the joint assessment of
any Real Estate with any other real property not owned by such Loan Party
constituting a separate tax lot. The Mortgaged Properties have been
properly subdivided or entitled to exception therefrom, and for all purposes the
Mortgaged Properties may be mortgaged, conveyed and, other than those with
respect to leasehold interests, otherwise dealt with as separate legal lots or
parcels.
(f) The
use being made of all Real Estate is in conformity with the certificate of
occupancy and/or such other Permits for such Real Estate and any other
reciprocal easement agreements, restrictions, covenants or conditions affecting
such Real Estate except, in each case, to the extent such non-conformity could
not reasonably be expected to have a Material Adverse Effect.
(g) There
are no outstanding options to purchase or rights of first refusal or
restrictions on transferability affecting any Real Estate (other than those set
forth in or otherwise permitted under the Loan Documents, including, without
limitation, Permitted Liens).
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(h) All
Real Estate has or is expected to have adequate rights of access to public ways
and is or is expected to be served by installed, operating and adequate water,
electric, gas, telephone, sewer, sanitary sewer and storm drain facilities, in
each case as necessary to permit the Real Estate to be used for its intended
purposes. All roads necessary for the utilization of the Real Estate
for its current purpose have been or are expected to be completed and dedicated
to public use and accepted by all Governmental Authorities or are the subject of
access easements for the benefit of such Real Estate.
(i) Except
as could not, individually or collectively, reasonably be expected to have a
Material Adverse Effect, no building or structure constituting Real Estate or
any appurtenance thereto or equipment thereon, or the use, operation or
maintenance thereof, violates any restrictive covenant affecting such Real
Estate or encroaches on any easement or on any property owned by
others.
(j) Since
the Closing Date, no portion of the Real Estate has suffered any material damage
by fire or other casualty loss that has not heretofore been repaired and
restored or is in the process of being repaired and restored in accordance with
Section 2.24.
4.26 Permits. Other
than exceptions to any of the following that could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect: (a) each of the Loan Parties has obtained and holds all
Permits required as of the date this representation is deemed made in respect of
all Real Estate and for any other Property otherwise then currently operated by
or on behalf of, or for the benefit of, such Person and for the operation of its
then current Permitted Businesses, (b) all such Permits are in full force and
effect, and each of the Loan Parties has performed and observed all requirements
of such Permits (to the extent required to be performed by the date this
representation is deemed made), (c) no event has occurred which allows or
results in, or after notice or lapse of time would allow or result in,
revocation, modification, suspension or termination by the issuer thereof or in
any other impairment of the rights of the holder of any such Permit, (d) no such
Permits, other than Permits required by the Nevada Gaming Authorities, contain
any restrictions, either individually or in the aggregate, that are materially
burdensome to any of the Loan Parties, or to the operation of its Permitted
Business or any Property owned, leased or otherwise operated by such Person, (e)
the Borrower has no knowledge that any Governmental Authority is considering
limiting, modifying, suspending, revoking or renewing on burdensome terms any
such Permit and (f) each of the Loan Parties reasonably believes that each such
Permit will be timely renewed and complied with, without unreasonable expense or
delay, and that any such Permit not required to have been obtained by the date
this representation is deemed made that may be required of such Person is of a
type that is routinely granted on application and compliance with the conditions
of issuance (such conditions being ministerial or of a type satisfied in the
ordinary course of business, without undue expense or delay) and will be timely
obtained and complied with, without undue expense or delay.
4.27 Sufficiency of
Interests. Other
than those services to be performed and materials to be supplied that can be
reasonably expected to be commercially available when and as required, the Loan
Parties own or hold under lease all of the property interests and have entered
into all documents and agreements necessary to develop, construct, complete, own
and
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operate
the Project (including access to sufficient water rights) on the Mortgaged
Property, all in accordance with all Requirements of Law.
4.28 Utilities. All
gas, water and electrical interconnection and utility services necessary for the
construction and operation of the Project for its intended purposes are or will
be available at the Site as and when required.
4.29 Fiscal
Year. The
fiscal year of each of the Loan Parties (including the Borrower) ends on
December 31 of each calendar year.
4.30 Patriot
Act. To
the extent applicable, each Loan Party is in compliance, in all material
respects, with the (i) Trading with the Enemy Act, as amended, and each of
the foreign assets control regulations of the United States Treasury Department
(31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation
or executive order relating thereto, and (ii) Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA Patriot Act of 2001) (the “Patriot
Act”). No part of the proceeds of any Loan will be used,
directly or indirectly, for any payments to any governmental official or
employee, political party, official of a political party, candidate for
political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in violation
of the United States Foreign Corrupt Practices Act of 1977, as
amended.
SECTION
5. CONDITIONS PRECEDENT
5.1 INTENTIONALLY
OMITTED.
5.2 Conditions to Extensions of
Credit Pursuant to Section 2.5(a) or 3.2(a). The
agreement of each Lender to make extensions of credit requested to be made by it
pursuant to Section 2.5(a) or 3.2(a), as applicable, is subject to the
satisfaction, prior to or concurrently with the making of such extensions of
credit, of the following conditions precedent:
(a) Notice. The
Borrower and/or the Disbursement Agent, as the case may be, shall have delivered
to the Administrative Agent and, in the case of Letters of Credit, the Issuing
Lender, the Notice of Advance Request with respect to the Loans and/or Letters
of Credit requested on such Borrowing Date, in each case in the form, at the
times and as required under Section 2.3 of the Disbursement Agreement and in
accordance with the procedures specified in Section 2.5(a) hereof in the case of
Loans and Section 3.2(a) hereof in the case of Letters of Credit.
(b) Satisfaction of Disbursement
Agreement Conditions Precedent. All conditions precedent to
such extension of credit described in Section 3.2 of the Disbursement Agreement,
shall have been satisfied or waived in accordance with the terms of the
Disbursement Agreement.
5.3 Conditions to Extensions of
Credit
Requested Pursuant to Section 2.5(b) or 3.2(b). The
agreement of each Lender to make extensions of credit requested to be made by it
pursuant to Sections 2.5(b) or 3.2(b) is subject to the satisfaction, prior to
or concurrently with the making of such extensions of credit, of the following
conditions precedent:
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(a) Notice. The
Borrower shall have delivered (i) in the case of the borrowing of Loans, a
Notice of Borrowing to the Administrative Agent in accordance with the
procedures specified in Section 2.5(b) and (ii) in the case of the issuance of
Letters of Credit, a Letter of Credit Request and the certificates, documents
and other papers and information delivered to it in connection therewith to the
Issuing Lender in accordance with the procedures specified in Section
3.2(b).
(b) Representations and
Warranties. Each of the representations and warranties made by
the Completion Guarantor, Xxxx Resorts Holdings or any Loan Party in or pursuant
to the Loan Documents shall be true and correct in all material respects on and
as of such date as if made on and as of such date, except for representations
and warranties expressly stated to relate to a specific earlier date, in which
case such representations and warranties shall be true and correct in all
material respects only as of such earlier date.
(c) No
Default. No Default or Event of Default shall have occurred
and be continuing on such date or immediately after giving effect to the
extensions of credit requested to be made on such date.
(d) No Material Adverse
Effect. No events or circumstances individually or
collectively having a Material Adverse Effect shall have occurred since the
Closing Date (except as is no longer continuing).
(e) Project
Costs. With respect to extensions of credit that are to be
applied toward the payment of Project Costs, the Company shall be in compliance
with Section 6.7 of the Disbursement Agreement as if payment for such Project
Costs were to made on the Borrowing Date.
Each
borrowing of Loans by and issuance of a Letter of Credit on behalf of the
Borrower pursuant to Sections 2.5(b) or 3.2(b) shall constitute a representation
and warranty by the Borrower as of the date of such extension of credit that the
conditions contained in this Section 5.3 have been satisfied.
5.4 Conditions to Amended and
Restated Effective Date. The
occurrence of the Amended and Restated Effective Date is subject to the
satisfaction of the following conditions precedent:
(a) Lender
Approval. The Administrative Agent shall have received the
necessary authorization from the Lenders, the Borrower shall have taken such
other action as required under Section 2.25 and such additional Persons shall
have become Lenders hereunder such that on the Amended and Restated Effective
Date, and after taking into consideration the repayment of Term B Loans
described in clause (b) below and any Revolving Loans made on the Amended and
Restated Effective Date, the Lenders and their Commitments and Term B Loan
Extensions of Credit shall be as set forth on Annex B
hereto.
(b) Fees, Interest and Repayment
of Term B Loans. All amounts required to be paid to the
Arrangers or the Administrative Agent and all taxes, fees and other costs
payable in connection with the execution, delivery, recordation and filing of
the documents
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and
instruments referred to in this Section 5.4 (or otherwise in connection
with the Amended and Restated Effective Date), shall have been paid in
full. All accrued interest and fees under this Agreement as of the
Amended and Restated Effective Date (including Revolving Commitment Fees) shall
have been paid in full. Additionally, all proceeds on deposit in the
Bank Proceeds Account on the Amended and Restated Effective Date shall be
applied to the repayment of Term B Loans on the Amended and Restated Effective
Date.
(c) Loan
Documents. The Borrower shall have delivered to the
Administrative Agent (with such number of originally executed copies as they may
reasonably request) executed originals of (i) this Agreement, (ii) the
Reaffirmation Agreement, (iii) the Fourth Amendment to Disbursement Agreement in
the form of Exhibit L hereto and (iv) the First Amendment to Mortgage in the
form of Exhibit P hereto (collectively, the “Amended and Restated
Effective Date Documents”), all of which shall be in form and
substance satisfactory to the Administrative Agent and shall have been duly
authorized, executed and delivered by the parties thereto.
(d) Corporate and/or LLC
Authority of the Loan Parties. The Borrower shall have
delivered to the Administrative Agent (i) a certified copy of the Governing
Documents of each of the Loan Parties (certified by a Responsible Officer,
secretary or assistant secretary of each such Loan Party and, if applicable, the
Secretary of State of Nevada or any other state of incorporation or
organization), (ii) good standing certificates for each of the Loan Parties
issued by the Secretary of State of Nevada or any other state of incorporation
or organization and (iii) a copy of one or more resolutions or other
authorizations of the Loan Parties certified by a Responsible Officer, secretary
or assistant secretary of each such Loan Party as being in full force and effect
on the Amended and Restated Effective Date, authorizing the execution, delivery
and performance of this Agreement and the other Loan Documents delivered as of
the Amended and Restated Effective Date, and any other instruments or agreements
required hereunder or thereunder in connection with the Amended and Restated
Effective Date to which any such entity is a party.
(e) Incumbency of the Loan
Parties. The Borrower shall have delivered to the
Administrative Agent a certificate on behalf of each of the Loan Parties
satisfactory in form and substance to the Administrative Agent, signed by the
secretary or assistant secretary of each such Loan Party or by a Responsible
Officer and dated as of the Amended and Restated Effective Date, as to the
incumbency of the Person or Persons authorized to execute and deliver the
Amended and Restated Effective Date Documents and any other documents,
instruments or agreements required hereunder or thereunder in connection with
the Amended and Restated Effective Date to which each such entity is a
party.
(f) Legal
Opinions. The Administrative Agent, on behalf of itself, the
Lenders and the Issuing Lender, shall have received a written opinion of
(i) Xxxxx, Schiller & Flexner LLP (as special New York counsel) and
(ii) Xxxxxxx Xxxxxxxx (as Nevada counsel), in each case as counsel for Wynn
Resorts, Xxxx Resorts Holdings, the Borrower and the other Loan Parties, in each
case (A) dated the Amended and Restated Effective Date, (B) addressed
to the Administrative Agent, the Issuing Lender and the Lenders,
(C) covering such matters relating to the Loan Documents and as the
Arrangers shall reasonably request and which are customary
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for
transactions of the type contemplated herein and (D) otherwise in form and
substance reasonably satisfactory to the Arrangers and the Administrative
Agent.
(g) UCC; Lien
Searches. The Administrative Agent shall have received the
results of a recent Lien and judgment search in each relevant jurisdiction with
respect to the Borrower and each of the Loan Parties, and such search shall
reveal no Liens on any of the assets of the Borrower or any such Loan Parties
except Permitted Liens.
(h) Projections. The
Arrangers and the Administrative Agent shall have received financial projections
of the Borrower and the Loan Parties for the five year period following the
Amended and Restated Effective Date in form and substance satisfactory to the
Arrangers.
(i) Disbursement Agent Fee
Letter. The letter regarding the fees of the Disbursement
Agent shall have been executed by the Borrower and delivered to the Disbursement
Agent.
(j) Governmental
Approvals. All material governmental and third party approvals
necessary in connection with the transactions contemplated on the Amended and
Restated Effective Date (including all necessary regulatory and gaming
approvals) shall have been obtained on terms satisfactory to the Arrangers and
the Administrative Agent and shall be in full force and effect, and all
applicable waiting periods shall have expired without any action being taken or
threatened by any competent authority that would restrain, prevent or otherwise
impose adverse conditions on the foregoing.
(k) Representations and
Warranties. Each representation and warranty of the Borrower
and each other Loan Party set forth in each Loan Document shall be true and
correct in all material respects on and as of the Amended and Restated Effective
Date with the same effect as though made on and as of such date, except to the
extent such representations and warranties expressly relate to an earlier date,
in which case such representations and warranties shall be true and correct in
all material respects on and as of such earlier date.
(l) Events of
Default. No Default or Event of Default shall have occurred
and be continuing.
(m) Title
Insurance. The Arrangers and the Administrative Agent shall
have received appropriate endorsements or supplements to the Title Policy, or a
commitment to issue such endorsements or supplements, in each case in form and
substance reasonably satisfactory to the Administrative Agent, which
endorsements or supplements shall, among other things, (i) ensure the Lenders
that the amendments to the Original Credit Agreement and the applicable
Mortgages made on the Amended and Restated Effective Date do not adversely
affect the Lender’s title and extended coverage insurance contained in the Title
Policy and (ii) increasing the insured amount of the Title Policy by the
principal amount of $125,000,000.
(n) Borrower
Certificate. The Administrative Agent shall have received a
certificate of the Borrower and the Loan Parties substantially in the form of
Exhibit Q hereto, dated the Amended and Restated Effective Date, and signed by a
Responsible Officer or a duly authorized officer of each Loan
Party.
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(o) Other
Documents. The Administrative Agent shall have
received such other documents and evidence as are customary for
transactions of this type as the Administrative Agent may reasonably request in
connection with the transactions contemplated on the Amended and Restated
Effective Date.
SECTION
6. AFFIRMATIVE COVENANTS
The
Borrower hereby agrees that, so long as the Commitments remain in effect, any
Letter of Credit remains outstanding (that has not been cash collateralized
pursuant to the terms of this Agreement) or any Loan or other amount is owing to
any Lender, any Arranger, any Manager or any Agent hereunder or under any other
Loan Document (other than contingent obligations not then due and payable), the
Borrower shall and shall cause each of the other Loan Parties to, directly or
indirectly:
6.1 Financial
Statements. Furnish
to the Administrative Agent (which the Administrative Agent shall deliver to the
Lenders):
(a) as
soon as available, but in any event not later than the earlier of (i) 10 days
after the filing with the SEC of the Borrower’s Annual Report (or Wynn Resorts’
Annual Report if no Annual Report for the Borrower has been filed) on Form 10-K
(or successor form thereto) with respect to each Fiscal Year and (ii)
90 days after the end of each Fiscal Year, a copy of the audited
consolidated balance sheets of the Borrower and its consolidated Subsidiaries as
at the end of such Fiscal Year and the related audited consolidated statements
of income and of cash flows for such Fiscal Year, setting forth in each case in
comparative form the figures for the previous Fiscal Year, reported on without a
“going concern” or like qualification or exception, or qualification arising out
of the scope of the audit, by Ernst & Young LLP or other independent
certified public accountants of nationally recognized standing; and
(b) as
soon as available, but in any event not later than the earlier of (i) 10 days
after the filing with the SEC of the Borrower’s Quarterly Report (or Wynn
Resorts’ Quarterly Report if no Quarterly Report for the Borrower has been
filed) on Form 10-Q (or successor form thereto) with respect to each of the
first three quarterly periods of each Fiscal Year and (ii) 45 days after the end
of each of the first three quarterly periods of each Fiscal Year, the unaudited
consolidated balance sheets of the Borrower and its consolidated Subsidiaries as
at the end of such quarter and the related unaudited consolidated statements of
income and of cash flows for such quarter and the portion of the Fiscal Year
through the end of such quarter, setting forth in each case in comparative form
the figures for the previous year, certified by a Responsible Officer as being
fairly stated in all material respects (subject to normal year-end audit
adjustments).
6.2 Certificates; Other
Information. Furnish
to the Administrative Agent or, in the case of clauses (m) through
(p) promptly give written notice to the Administrative Agent of (in each
case which the Administrative Agent shall deliver to the Lenders):
(a) concurrently
with the delivery of the financial statements referred to in Section 6.1(a), a
certificate of the independent certified public accountants reporting on such
financial statements stating that, in connection with their audit examination,
nothing has
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come
to their attention that causes them to believe that the Borrower or any of the
Loan Parties failed to comply with the terms, conditions, provisions or
conditions of Sections 6.3, 6.6(a), 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8,
7.9(a), 7.10, 7.11, 7.12, 7.19, 7.22, 7.23 and 7.26 of this Agreement, insofar
as such sections relate to financial or accounting matters;
(b) concurrently
with the delivery of any financial statements pursuant to Section 6.1, (i) a
certificate of a Responsible Officer stating that such Responsible Officer has
obtained no knowledge of the existence of any Default or Event of Default except
as specified in such certificate, (ii) a Compliance Certificate containing all
information and calculations necessary for determining compliance by the Loan
Parties with the provisions of this Agreement referred to therein as of the last
day of the applicable fiscal quarter or Fiscal Year, as the case may be and
(iii) a certificate of a Responsible Officer setting forth all payments made by
the Borrower with respect to Affiliated Overhead Expenses during the 12-month
period ending on the last day of the applicable quarter and stating that all
such payments were in reimbursement of Affiliated Overhead Expenses and
permitted pursuant to Section 7.10(c);
(c) concurrently
with the delivery of any financial statements pursuant to Section 6.1(a), a
detailed consolidated budget of the Borrower and its consolidated Subsidiaries
for such Fiscal Year (including a projected consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as of the end of such Fiscal Year,
and the related consolidated statements of projected cash flow, projected
changes in financial position and projected income), and, as soon as available,
significant revisions, if any, of such budget and projections with respect to
such Fiscal Year (collectively, the “Projections”), which
Projections shall in each case be accompanied by a certificate of a Responsible
Officer stating that, at the time made, such Projections are based on estimates,
information and assumptions believed by the Responsible Officer to be reasonable
at the time made;
(d) concurrently
with the delivery of the financial statements referred to in Section 6.1(a) (and
only to the extent not otherwise contained in such financial statements), a
narrative discussion and analysis of the financial condition and results of
operations of the Loan Parties (taken as a whole) for the Fiscal Year to which
such financial statements relate and a comparison thereof to (i) the Projections
covering such Fiscal Year and (ii) the actual financial condition and results of
operations of the Fiscal Year immediately prior to such Fiscal
Year;
(e) within
five Business Days after the same are sent, copies of all financial statements
and reports that any Loan Party generally sends to the holders of any class of
its debt securities to the extent not previously delivered to the Administrative
Agent and, within five Business Days after the same are filed, either copies of
all financial statements and reports that any Loan Party files with the SEC or
electronic notice of such filings;
(f) on
the date of the occurrence thereof, notice that (i) any or all of the First
Lien Secured Obligations (other than the Obligations) or Second Lien Secured
Obligations have been accelerated or (ii) the agent, lenders, trustee or
the holders of or with respect to any First Lien Secured Obligations (other than
the Obligations) or Second Lien Secured Obligations, as the case may be, has
given notice that any or all such obligations are to be
accelerated;
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(g) promptly,
and in any event within ten Business Days after any Material Contract is
terminated or amended or any new Material Contract is entered into, or upon
becoming aware of any material default by any Person under a Material Contract,
a written statement describing such event with copies of such amendments or new
Material Contracts and, with respect to any such terminations or material
defaults, an explanation of any actions being taken (if any) with respect
thereto;
(h) promptly
upon receipt, copies of all notices provided to any Loan Party or their
Affiliates pursuant to any documents evidencing First Lien Secured Obligations
(other than the Obligations) or Second Lien Secured Obligations relating to
material defaults or material delays and promptly upon execution and delivery
thereof, copies of all amendments to any of the documents evidencing First Lien
Secured Obligations (other than the Obligations) or Second Lien Secured
Obligations;
(i) to
the extent not included in subsections (a) through (h) above, no later than the
date the same are required to be delivered thereunder, copies of all agreements,
documents or other instruments (excluding legal opinions of counsel of the Loan
Parties but including, without limitation, (i) audited and unaudited, pro
forma and other financial statements, reports, forecasts, and projections,
together with any required certifications thereon by independent public auditors
or officers of any Loan Party or otherwise, (ii) press releases,
(iii) statements or reports furnished to any other holder of the securities
of any Loan Party and (iv) regular, periodic and special securities
reports) that any Loan Party is required to provide pursuant to the terms of the
First Lien Secured Obligations (other than the Obligations) or Second Lien
Secured Obligations;
(j) [INTENTIONALLY
OMITTED]
(k) within
twenty days after the end of each fiscal quarter of the Borrower, a schedule of
all Proceedings involving an alleged liability of, or claims against, any Loan
Party equal to or greater than $10,000,000, and promptly after request by the
Administrative Agent such other information as may be reasonably requested by
the Administrative Agent to enable the Administrative Agent and its counsel to
evaluate any of such Proceedings;
(l) promptly,
such additional financial and other information as any Lender may from time to
time reasonably request;
(m) upon
any officer of a Loan Party obtaining knowledge thereof, the occurrence of any
Default or Event of Default;
(n) upon
any officer of a Loan Party obtaining knowledge thereof, the institution of any
action, suit, proceeding (whether administrative, judicial or otherwise),
governmental investigation or arbitration against or affecting any Loan Party,
or any Property of a Loan Party (collectively, “Proceedings”) not
previously disclosed in writing by the Borrower to the Administrative Agent
that, in any case (i) if adversely determined, has a reasonable possibility of
giving rise to a Material Adverse Effect or (ii) seeks to enjoin or otherwise
prevent
108
the
consummation of, or to recover any damages or obtain relief as a result of, the
transactions contemplated hereby, or any material development in any such
Proceeding;
(o) the
following events, as soon as possible and in any event within 30 days after any
Loan Party knows thereof: (i) the occurrence of any Reportable Event
with respect to any Plan, a material failure to make any required contribution
to a Plan, the creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of any
other action by the PBGC, the Borrower, any other Loan Party or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal from,
or the termination, Reorganization or Insolvency of, any Plan; and
(p) any
other development or event that has had or could reasonably be expected to have
a Material Adverse Effect.
Each
notice pursuant to clauses (m) through (p) of this Section shall be
accompanied by a statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the relevant Loan Party
proposes to take with respect thereto.
6.3 Payment of
Obligations. To
the extent not otherwise subject to valid subordination, standstill,
intercreditor or similar arrangements, pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all
its obligations of whatever nature, except where (a) the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the relevant Loan Party or (b) the failure to do so
could not reasonably be expected to have a Material Adverse Effect.
6.4 Conduct of Business and
Maintenance of Existence, etc.
(a) (a)
Preserve, renew and keep in full force and effect its corporate or limited
liability company existence and in each case remain a Wholly Owned Subsidiary of
Wynn Resorts and (b) take all reasonable action to maintain all rights,
privileges, franchises, Permits and licenses necessary or desirable in the
normal conduct of its business, except, in each case, as otherwise permitted by
Section 7.4 and except, in the case of subsection (b) above, to the extent that
failure to do so could not (individually or in the aggregate) reasonably be
expected to have a Material Adverse Effect.
6.5 Maintenance of Property;
Leases; Insurance.
(a) Keep
all material Property and systems useful and necessary in its business in good
working order and condition, ordinary wear and tear excepted.
(b) Maintain
all rights of way, easements, grants, privileges, licenses, certificates, and
Permits necessary for the intended use of any Real Estate, except any such item
the loss of which, individually or in the aggregate, could not reasonably be
expected to materially and adversely affect or interfere with the Permitted
Business of any Loan Party or have a material adverse effect on the
Site.
(c) Comply
with the terms of each lease or other grant of Real Estate, including easement
grants, so as to not permit any material uncured default on its part to exist
109
thereunder,
except, in each case, where noncompliance therewith could not reasonably be
expected to materially and adversely affect or interfere with the Permitted
Business or Property of any Loan Party.
(d) At
all times maintain liability, casualty and other insurance (subject to customary
deductibles and retentions) with responsible insurance companies in such amounts
and against such risks as is commonly carried by responsible companies engaged
in similar businesses and owning similar assets in the general areas in which
the Borrower and the other Loan Parties operate and, in each case, which is
reasonably acceptable in all material respects to the Administrative Agent (in
consultation with the Insurance Advisor) from time to time. In
addition, the Borrower and each of the other Loan Parties shall obtain such
other or additional insurance (as to risks covered, policy amounts, policy
provisions or otherwise) as the Administrative Agent (in consultation with the
Insurance Advisor) may reasonably request from time to time; provided that such
insurance and such amounts are then commonly insured against with respect to
similar properties in Las Vegas, and are available on commercially reasonable
terms. Notwithstanding anything herein to the contrary, the insurance
maintained by the Borrower and the other Loan Parties pursuant to this Section
6.5(d) shall include terrorism insurance and shall not include key-man life
insurance; provided that the Borrower and the Loan Parties shall not be required
to maintain terrorism insurance at any time, if any (and only for such time),
that such insurance is not available on any terms. All material
insurance policies shall provide that no cancellation thereof shall be effective
until at least 30 days after receipt by the Administrative Agent of written
notice thereof. The Administrative Agent shall be named as an
additional insured on all material liability insurance policies of the Borrower
and each of the Loan Parties (other than directors and officers liability
insurance) and the Collateral Agent shall be named as loss payee on all material
property insurance policies of each such person.
(e) Deliver
to the Administrative Agent on behalf of the Secured Parties, (i) upon
request of any Secured Party from time to time, information as to the insurance
carried, (ii) forthwith, notice of any cancellation or non-renewal of any
material insurance policy of any Loan Party or any material change in coverage
of any Loan Party and (iii) promptly after such information is available to
any Loan Party, information as to any claim for an amount in excess of
$5,000,000 with respect to any property and casualty insurance policy maintained
by any such Loan Party.
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6.6 Inspection of Property;
Books and Records; Discussions.
(a) Keep in all material respects, adequate books of records and account in
which entries shall be made of all dealings and transactions in relation to its
business and activities to allow preparation of the financial statements
referred to in Section 6.1 in accordance with GAAP and (b) subject to any
Nevada Gaming Laws restricting such actions, permit representatives of any
Lender, coordinated through the Administrative Agent, to visit and inspect any
of its properties and examine and, at such Person’s expense (unless a Default or
Event of Default is continuing, in which case at the Borrower’s expense), make
abstracts from any of its books and records at any reasonable time and upon
reasonable prior notice and as often as may reasonably be desired and, during
normal business hours, to discuss the business, operations, properties and
financial and other condition of any Loan Party with officers of such Loan Party
and with their respective independent certified public accountants (provided
that a Responsible Officer may be present for any such discussions with
independent certified public accountants if the Borrower so
chooses).
6.7 INTENTIONALLY
OMITTED.
6.8 Environmental
Laws;
Permits.
(a) Comply
in all material respects with, and use best efforts to ensure compliance in all
material respects by all tenants and subtenants, if any, with, all applicable
Environmental Laws and Environmental Permits, and obtain, maintain and comply in
all material respects with, and use best efforts to ensure that all tenants and
subtenants obtain, maintain and comply in all material respects with, any and
all licenses, approvals, notifications, registrations or Permits required by
applicable Environmental Laws except, in each case, to the extent any
non-compliance could not reasonably be expected to result in any material
liability to the Loan Parties or their Properties or in an inability of the Loan
Parties to perform their respective obligations in any material respect under
the Operative Documents.
(b) In
the event that the Borrower or any other Loan Party fails to comply with
Section 6.8(a), the Administrative Agent may (i) retain, at the Borrower’s
expense, an independent professional consultant to review any environmental
audits, investigations, analyses and reports relating to the non-compliance and
the conditions giving rise to the non-compliance and (ii) conduct its own
investigation of the non-compliance and the conditions giving rise to the
non-compliance. For purposes of conducting such a review and/or
investigation, the Administrative Agent and its agents, employees, consultants
and contractors shall have, upon reasonable prior notice, the right to enter
into or onto the Site or the Project and to perform such tests on such property
(including taking samples of soil, groundwater and suspected asbestos-containing
materials) as are reasonably necessary in connection therewith. Any
such investigation shall be conducted, unless otherwise agreed to by a Loan
Party and the Administrative Agent, during normal business hours and shall be
conducted so as not to unreasonably interfere with the ongoing operations at the
Site or the Project or to cause any damage or loss to any property at the Site
or the Project. Any report of any investigation conducted at the
request of the Administrative Agent pursuant to this Section will be obtained
and shall be used by the Administrative Agent and the Lenders for the purposes
of the Lenders’ internal credit decisions, to monitor and police the Loans and
to protect the Lenders’ security interests, if any, created by the Loan
Documents. A copy of such report shall be provided to the
111
Borrower. The
Administrative Agent agrees that any such investigation shall be conducted by an
environmental consulting firm qualified and licensed by the State of
Nevada.
(c) Deliver
to the Administrative Agent (i) as soon as practicable following receipt
thereof, copies in any Loan Party’s possession or any Loan Party’s control of
all material environmental audits, investigations, analyses and reports of any
kind or character, whether prepared by personnel of the Loan Parties or by
independent consultants, governmental authorities or any other Persons (other
than any Lender), with respect to Environmental Matters at the Site or the
Project or with respect to any Environmental Claims, (ii) promptly upon the
occurrence thereof, written notice describing in reasonable detail (A) any
Release required to be reported to any federal, state or local governmental or
regulatory agency under any applicable Environmental Laws, (B) any remedial
action taken by any Person in response to (1) any Hazardous Materials Activities
the existence of which has a reasonable possibility of resulting in one or more
Environmental Claims against a Loan Party that could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect, or (2)
any Environmental Claims against a Loan Party that could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect, (iii)
as soon as practicable following the sending or receipt thereof by any Loan
Party, a copy of any and all written communications with respect to (A) any
Environmental Claims that could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect, (B) any Release required to
be reported to any federal, state or local governmental or regulatory agency and
(C) any request for information from any governmental agency indicating that
such agency is investigating whether any Loan Party may be potentially
responsible for any Hazardous Materials Activity, (iv) prompt written notice
describing in reasonable detail (A) any proposed acquisition of stock, assets,
or property by any Loan Party that could reasonably be expected to (1) expose
any Loan Party to, or result in, Environmental Claims that could reasonably be
expected to result, individually or in the aggregate, in a Material Adverse
Effect or (2) affect the ability of any Loan Party to maintain in full force and
effect all material Permits required under any Environmental Laws for their
respective operations and (B) any proposed action to be taken by any Loan Party
to modify current operations in a manner that could reasonably be expected to
subject such Loan Party to any material additional obligations or requirements
under any Environmental Laws that could reasonably be expected to result,
individually or in the aggregate, in a Material Adverse Effect, (v) any notice
that any Governmental Authority may condition approval of, or any application
for, any material Permit held by any Loan Party on terms and conditions that are
materially burdensome to such Loan Party, or to the operation of any of its
businesses or any property owned, leased or otherwise operated by such Person,
(vi) notice of any actions or proceedings of the types described in Sections
4.17(c) through (e), (vii) as soon as practicable, all documents submitted to,
filed with or received from any Governmental Authority, including, without
limitation, the Nevada Public Utilities Commission and the State of Nevada,
Division of Water Resources, with respect to any material water permits held by
any Loan Party or otherwise utilized or expected to be utilized with respect to
the Project and (viii) with reasonable promptness, such other documents and
information as from time to time may be reasonably requested by the
Administrative Agent in relation to any matters disclosed pursuant to this
Section 6.8(c).
6.9 Dissolution of the
Completion Guarantor. As
is reasonably practicable, following the Phase II Final Completion Date,
liquidate, wind up and dissolve the Completion
112
Guarantor. After
the Completion Guarantor is dissolved in accordance with this Section 6.9, all
references to the Completion Guarantor contained in this Agreement or any other
Loan Document shall be deemed deleted and any provisions with respect to or
affecting the Completion Guarantor (whether representations, warranties,
covenants or otherwise) shall be of no further force or effect.
6.10 Additional Collateral,
Discharge of Liens, etc.
(a) With
respect to any Property acquired after the Closing Date by any Loan Party as to
which the Collateral Agent, for the benefit of the Secured Parties, does not
have a perfected security interest (other than (I) Property described in
paragraph (b) below, (II) the Aircraft, (III) subject to
Section 6.11(b), cash and cash equivalents, (IV) the Macau Loan to the
extent made directly to Xxxx Macau and (V) any other Excluded Assets),
subject to compliance with applicable Nevada Gaming Laws and restrictions on the
granting of Liens permitted pursuant to Section 7.13, promptly (and in any event
within five Business Days following the date of such acquisition or such longer
period as may be reasonably approved by the Administrative Agent)
(i) execute and deliver to the Collateral Agent such amendments to the
Security Agreement or such other documents as the Administrative Agent or the
Collateral Agent reasonably deems necessary or advisable to grant to the
Collateral Agent, for the benefit of the Secured Parties, a security interest in
such Property and (ii) take all actions reasonably necessary or advisable to
grant to the Collateral Agent, for the benefit of the Secured Parties, a
perfected first priority security interest in such Property (subject to
Permitted Liens), including, without limitation, the filing of UCC financing
statements in such jurisdictions as may be reasonably required by the Security
Agreement or by law or as may be requested by the Administrative Agent or the
Collateral Agent. In addition to the foregoing, in the event any such
Property acquired after the Closing Date consists of Real Estate or other
Property with respect to which a recording in the real property records of an
appropriate jurisdiction is required or advisable in order to perfect a security
interest therein, promptly (and, in any event, within five Business Days
following the date of such acquisition or such longer period approved by the
Administrative Agent) (A) execute and deliver a mortgage, substantially in the
form of the Mortgages (with such modifications, if any, as are necessary to
comply with Requirements of Law or that the Administrative Agent or the
Collateral Agent may reasonably request), such mortgage to be recorded in the
real property records of the appropriate jurisdiction, or execute and deliver to
the Collateral Agent for recording a supplement to an existing Mortgage, in
either case pursuant to which the applicable Loan Party grants to the Collateral
Agent on behalf of the Secured Parties a Lien on such Real Estate subject only
to Permitted Liens, (B) provide the Collateral Agent on behalf of the
Secured Parties with a commitment to issue title and extended coverage insurance
covering such Real Estate in an amount at least equal to the fair market value
of such Real Estate, and in any event consistent with (except for coverage
amount) the title and extended coverage insurance covering the Site obtained
pursuant to the Disbursement Agreement on the Closing Date and from time to time
thereafter, or obtain a commitment to issue an appropriate endorsement or
supplement to an existing Title Policy (in the case of an appropriate
endorsement or supplement to an existing Title Policy, without any increase in
the coverage amount of such Title Policy), (C) execute and deliver an
environmental indemnity agreement with respect to such Real Estate,
substantially in the form of the Indemnity Agreements (with such modifications,
if any, as are necessary to comply with Requirements of Law or that the
Administrative Agent may reasonably request) and (D) execute and/or deliver such
other
113
documents
or provide such other information in furtherance thereof as the Administrative
Agent or the Collateral Agent may reasonably request, including delivering
documents and taking such other actions which would have been required under
Section 3.1 of the Disbursement Agreement (as in effect on the Closing Date) if
such Real Estate were part of the Mortgaged Property on the Closing
Date.
(b) With
respect to any new Subsidiary created or acquired after the Closing Date by any
Loan Party, subject to compliance with Nevada Gaming Laws, promptly (and in any
event within five Business Days following the date of such acquisition or
creation or such longer period as may be reasonably approved by the
Administrative Agent) (i) execute and deliver to the Collateral Agent such
amendments to (if any) the Security Agreement as the Administrative Agent or the
Collateral Agent reasonably deems necessary or advisable to grant to the
Collateral Agent, for the benefit of the Secured Parties, a perfected first
priority security interest in the Capital Stock of such new Subsidiary (subject
to Permitted Liens), (ii) deliver to the Collateral Agent the certificates
(if any) representing such Capital Stock, together with undated stock or similar
powers, in blank, executed and delivered by a duly authorized officer of such
Loan Party, as applicable, (iii) cause such new Subsidiary (A) to become a
party to the Guarantee, the Security Agreement, the Subordinated Intercompany
Note and, to the extent applicable, the Intellectual Property Security
Agreements and (B) to take such actions reasonably necessary or advisable to
grant to the Collateral Agent for the benefit of the Secured Parties a perfected
first priority security interest (subject to Permitted Liens) in the Collateral
described in the Security Agreement and, to the extent applicable, the
Intellectual Property Security Agreements with respect to such new Subsidiary,
including, without limitation, the recording of instruments in the United States
Patent and Trademark Office and the United States Copyright Office, the
execution and delivery by all necessary Persons of Control Agreements and the
filing of UCC financing statements in such jurisdictions as may be required by
the Security Agreement, the Intellectual Property Security Agreements or by law
or as may be reasonably requested by the Administrative Agent or the Collateral
Agent, (iv) if requested by the Administrative Agent or the Collateral Agent,
deliver to the Collateral Agent legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent and (v) execute and/or
deliver such other documents or provide such other information as the
Administrative Agent or the Collateral Agent may reasonably request, including
delivering documents and taking such other actions which would have been
required under Section 3.1 of the Disbursement Agreement (as in effect on the
Closing Date) if such new Subsidiary were a Loan Party on the Closing
Date. In addition to the foregoing, in the event any such new
Subsidiary owns or otherwise has interests in any Real Estate or other Property
with respect to which a recording in the real property records of an appropriate
jurisdiction is required or advisable in order to perfect a security interest
therein, promptly (and, in any event, within five Business Days following the
date of such acquisition or such longer period as may be approved by the
Administrative Agent) (1) execute and deliver a mortgage, substantially in the
form of the Mortgages (with such modifications, if any, as are necessary to
comply with Requirements of Law or that the Administrative Agent or the
Collateral Agent may reasonably request), such mortgage to be recorded in the
real property records of the appropriate jurisdiction, or execute and deliver to
the Collateral Agent for recording a supplement to an existing Mortgage, in
either case pursuant to which the applicable Loan Party grants to the Collateral
Agent on behalf of the Secured Parties a Lien on such Real Estate subject only
to Permitted Liens, (2) provide the Collateral Agent on behalf of the Secured
114
Parties
a commitment to issue title and extended coverage insurance covering such Real
Estate in an amount at least equal to the fair market value of such Real Estate,
and in any event consistent with (except for coverage amount) the title and
extended coverage insurance covering the Site obtained pursuant to the
Disbursement Agreement on the Closing Date and from time to time thereafter, or
obtain a commitment to issue an appropriate endorsement or supplement to an
existing Title Policy (in the case of an appropriate endorsement or supplement
to an existing Title Policy, without any increase in the coverage amount of such
Title Policy), (3) execute and deliver an environmental indemnity agreement
with respect to such Real Estate, substantially in the form of the Indemnity
Agreements (with such modifications, if any, as are necessary to comply with
Requirements of Law or that the Administrative Agent may reasonably request) and
(4) execute and/or deliver such other documents or provide such other
information in furtherance thereof as the Administrative Agent or the Collateral
Agent may reasonably request, including delivering documents and taking such
other actions which would have been required under Section 3.1 of the
Disbursement Agreement (as in effect on the Closing Date) if such Real Estate
were part of the Mortgaged Property on the Closing Date.
(c) Notwithstanding
anything to the contrary in this Section 6.10, paragraphs (a) and (b) of this
Section 6.10 (other than clause (C) of paragraph (a)) shall not apply to any
Property or new Subsidiary created or acquired after the Closing Date, as
applicable, as to which the Administrative Agent has determined in its sole
discretion that the collateral value thereof is insufficient to justify the
difficulty, time and/or expense of obtaining either (i) a perfected security
interest therein or (ii) with respect to Real Estate, title and extended
coverage insurance. Additionally, to the extent any such acquisition
relates to Real Estate, the definitions, exhibits and schedules to this
Agreement and any other Loan Document (including the Disbursement Agreement)
related to descriptions of Real Estate shall be deemed amended to the extent
necessary to reflect such acquisition.
6.11 Use of Proceeds and
Revenues.
(a) Use
the proceeds of the Loans and request the issuance of Letters of Credit, only
for the purposes specified in Section 4.16; provided, that on and
after the Amended and Restated Effective Date, no more than an aggregate of
$2,000,000 of proceeds of extensions of credit hereunder shall be applied toward
Project Costs with respect to the Phase I Project. For purposes of
this Section 6.11(a), until the Amended and Restated Disbursement Agreement
Effective Date, (x) all Advances made from the Bank Proceeds Account, the 2014
Notes Proceeds Account and from the Revolving Credit Facility in respect of
Project Costs related to the Phase I Project shall be deemed to have been drawn
in accordance with the ratio set forth in Section 2.4.1(b) of the Disbursement
Agreement and (y) the Company may allocate Advances from the Company’s Funds
Account or the Company’s Concentration Account between the Phase I Project and
the Phase II Project at its discretion.
(b) Deposit
in a Funding Account and, until utilized, maintain on deposit in a Funding
Account, all cash and cash equivalents other than (i) On-Site Cash, (ii) cash
and cash equivalents required pursuant to Nevada Gaming Laws or by Nevada Gaming
Authorities to be deposited into Gaming Reserves, and (iii) cash or cash
equivalents that in the ordinary course of business are not maintained on
deposit in a bank or other deposit or
115
investment
account pending application toward working capital or other general corporate
purposes of the Loan Parties.
6.12 Compliance with Laws,
Project Documents, etc.; Permits.
(a) Comply
with all Requirements of Law, noncompliance with which could reasonably be
expected to cause, individually or in the aggregate, a Material Adverse Effect
and comply in all material respects with its Governing Documents.
(b) Comply,
duly and promptly, in all respects with its respective obligations and enforce
all of its respective rights under all Project Documents, except where the
failure to comply with its obligations or enforce all of its respective rights,
as the case may be, could not reasonably be expected to have a Material Adverse
Effect.
(c) From
time to time (i) obtain, maintain, retain, observe, keep in full force and
effect and comply with the terms, conditions and provisions of all Permits as
shall now or hereafter be necessary under applicable laws, except to the extent
the noncompliance therewith could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect and (ii) maintain,
retain, observe and keep in full force and effect and comply with all material
terms conditions and provisions of all material water permits held by any Loan
Party or otherwise utilized or expected to be utilized with respect to the
Project.
6.13 Further
Assurances. From
time to time execute and deliver, or cause to be executed and delivered, such
additional instruments, certificates or documents, and take all such actions, as
the Administrative Agent may reasonably request, for the purposes of
implementing or effectuating the provisions of this Agreement and the other Loan
Documents, or of more fully perfecting or renewing the rights of the Collateral
Agent and the Secured Parties with respect to the Collateral (or with respect to
any additions thereto or replacements or proceeds or products thereof or with
respect to any other property or assets hereafter acquired by any Loan Party
which may be deemed to be part of the Collateral) pursuant hereto or
thereto. Upon the exercise by the Administrative Agent or any Lender
of any power, right, privilege or remedy pursuant to this Agreement or the other
Loan Documents which requires any consent, approval, recording, qualification or
authorization of any Governmental Authority, the Borrower shall, or shall cause
any other applicable Loan Party to, execute and deliver, or will cause the
execution and delivery of, all applications, certifications, instruments and
other documents and papers that the Administrative Agent or such Lender may be
required to obtain from the Borrower or the applicable Loan Party for such
governmental consent, approval, recording, qualification or
authorization. In the event that, notwithstanding the covenants
contained in Article 7, a Lien not otherwise permitted under this Agreement
shall encumber the Mortgaged Property or any portion thereof (or a mechanics’ or
materialmen’s claim of lien shall be filed or otherwise asserted against the
Mortgaged Property or any portion thereof), the relevant Loan Party shall
promptly discharge or cause to be discharged by payment to the lienor or lien
claimant or promptly secure removal by recording a bond as provided in NRS
108.2413 et seq. or
otherwise or, at the Administrative Agent’s option, and if obtainable promptly
obtain title insurance against, any such Lien or mechanics’ or materialmen’s
claims of lien filed or otherwise asserted against the Mortgaged Property or any
other item of Collateral or any portion thereof within 60 days after the date of
notice thereof; provided, that the
provisions of this Section 6.13 (and compliance
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therewith)
shall not be deemed to constitute a waiver of any of the provisions of Article
7. Each of the Loan Parties shall fully preserve the Lien and the
priority of each of the Mortgages and the other Security Documents without cost
or expense to the Administrative Agent, the Collateral Agent or the Secured
Parties. If any Loan Party fails to promptly discharge, remove or
bond off any such Lien or mechanics’ or materialmen’s claim of lien as described
above, which is not being contested by the applicable Loan Party in good faith
by appropriate proceedings promptly instituted and diligently conducted, within
30 days after the receipt of notice thereof, then the Administrative Agent may,
but shall not be required to, procure the release and discharge of such Lien,
mechanics’ or materialmen’s claim of lien and any judgment or decree thereon,
and in furtherance thereof may, in its sole discretion, effect any settlement or
compromise with the lienor or lien claimant or post any bond or furnish any
security or indemnity as the Administrative Agent, in its sole discretion, may
elect. In settling, compromising or arranging for the discharge of
any Liens under this subsection, the Administrative Agent shall not be required
to establish or confirm the validity or amount of the Lien. The
Borrower agrees that all costs and expenses expended or otherwise incurred
pursuant to this Section 6.13 (including reasonable attorneys’ fees and
disbursements) by the Administrative Agent shall constitute Obligations and
shall be paid by the Borrower in accordance with the terms hereof.
SECTION
7. NEGATIVE COVENANTS
The
Borrower hereby agrees that, so long as the Commitments remain in effect, any
Letter of Credit remains outstanding (that has not been cash collateralized
pursuant to the terms of this Agreement) or any Loan or other amount is owing to
any Lender, any Arranger, any Manager or any Agent hereunder or under any other
Loan Document (other than contingent obligations not then due and payable), the
Borrower shall not, and shall not permit any of the other Loan Parties to,
directly or indirectly:
7.1 Financial Condition
Covenants.
(a) Consolidated Leverage Ratio
– Pre-Initial Phase II Calculation Date. Permit the
Consolidated Leverage Ratio (calculated in accordance with Section 1.3) as at
the last day of any period of four full consecutive fiscal quarters (or such
shorter period ending on any Quarterly Date set forth below and beginning on the
first day of the fiscal quarter ending on the first Quarterly Date) ending on
any Quarterly Date prior to the Initial Phase II Calculation Date to exceed the
ratio set forth below opposite such Quarterly Date:
Quarterly
Date
|
Consolidated
Leverage
Ratio
|
|||
Quarterly
Dates ending June 30, 2006 and September 30, 2006
|
6.00:1
|
|||
Quarterly
Date ending December 31, 2006
|
5.75:1
|
|||
Quarterly
Date ending March 31, 2007
|
5.50:1
|
|||
Quarterly
Date ending June 30, 2007
|
5.25:1
|
|||
Quarterly
Dates from and after September 30, 2007, but prior to the Initial Phase II
Calculation Date
|
5.00:1
|
117
(b) Consolidated Leverage Ratio
– Post-Initial Phase II Calculation Date. Permit the
Consolidated Leverage Ratio (calculated in accordance with Section 1.3) as at
the last day of any period of four full consecutive fiscal quarters ending on
the Initial Phase II Calculation Date or any Quarterly Date thereafter to exceed
the ratio set forth below opposite such Quarterly Date:
Quarterly
Date
|
Consolidated
Leverage
Ratio
|
|||
Quarterly
Date ending June 30, 2011
|
6.50:1
|
|||
Quarterly
Date ending September 30, 2011
|
6.25:1
|
|||
Quarterly
Dates from and after December 31, 2011
|
6.00:1
|
(c) Consolidated Interest
Coverage Ratio. Permit the Consolidated Interest Coverage
Ratio (calculated in accordance with Section 1.3) for any period of four full
consecutive fiscal quarters (or such shorter period ending on any Quarterly Date
set forth below and beginning on the first day of the fiscal quarter ending on
the first Quarterly Date) ending on any Quarterly Date set forth below to be
less than the ratio set forth below opposite such Quarterly Date:
Quarterly
Date
|
Consolidated
Interest Coverage Ratio |
|||
Quarterly
Dates on or prior to December 31, 2007
|
2.00:1
|
|||
Quarterly
Dates from March 31, 2008 through and including September 30,
2008
|
1.75:1
|
|||
Quarterly
Date ending December 31, 2008
|
1.40:1
|
|||
Quarterly
Date ending March 31, 2009
|
1.35:1
|
|||
Quarterly
Dates from June 30, 2009 through and including March 31,
2011
|
1.25:1
|
|||
Quarterly
Dates from and after June 30, 2011
|
1.75:1
|
7.2 Limitation on
Indebtedness. Create,
incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness
created under any Loan Document;
(b) Unsecured
Indebtedness of any Loan Party (other than Capital Corp. and Xxxx Golf, unless
the proceeds of such Indebtedness are necessary for the organizational
maintenance of any such party) to any other Loan Party; provided, that in
each case such Indebtedness is evidenced by, and subject to the terms and
conditions of, the Subordinated Intercompany Note;
(c) Indebtedness
secured by Liens permitted by Section 7.3(j) in an aggregate principal amount
not less than 50% and not more than 100% of the fair market value of the
Aircraft determined at the time of the incurrence of such
Indebtedness;
118
(d) Indebtedness
(other than the Indebtedness referred to in Section 7.2(f)) outstanding on the
Amended and Restated Effective Date and listed on Schedule 7.2(d) and
any refinancings, refundings, renewals or extensions thereof (without any
increase in the principal amount thereof or any shortening of the maturity of
any principal amount thereof);
(e) Unsecured
Guarantee Obligations made in the ordinary course of business by any Loan Party
of obligations of the Borrower or any other Loan Party (other than Capital Corp.
and Xxxx Golf);
(f) (i)
Indebtedness of the Borrower and Capital Corp. created under the 2010
Notes Indenture in respect of the 2010 Notes in an aggregate principal amount
not to exceed $10,000,000 (reduced by any principal payments from time to time
made thereon) and Guarantee Obligations of any Loan Party in respect thereto;
and (ii) Indebtedness of the Borrower and Capital Corp. created under the
2014 Notes Indenture in respect of the 2014 Notes in an aggregate principal
amount, including all Permitted Refinancing Indebtedness incurred to refund,
refinance or replace any Indebtedness incurred pursuant to this subclause (ii),
not to exceed $1,700,000,000 (reduced by any principal payments from time to
time made thereon) and Guarantee Obligations of any Loan Party in respect
thereto;
(g) Indebtedness
(including, without limitation, Capital Lease Obligations) secured by Liens
permitted by Section 7.3(s) in an aggregate principal amount not to exceed
$30,000,000 (or, from and after the Phase II Opening Date, $100,000,000) at any
time outstanding;
(h) Indebtedness
to any employees of Wynn Resorts or its Wholly Owned Subsidiaries (or their
estates or trusts) incurred in connection with the repurchase, redemption or
other acquisition or retirement for value of Capital Stock of Wynn Resorts
permitted pursuant to Section 7.6(e); provided, that such
Indebtedness outstanding at any time, when aggregated with the aggregate of all
payments previously made under Section 7.6(e), will not exceed
$10,000,000;
(i) Subordinated
Debt not to exceed an aggregate of $25,000,000 at any time outstanding; provided, that on and
after the Phase II Opening Date, the aggregate amount of Subordinated Debt
incurred by the Borrower shall not be limited so long as the Borrower and its
Subsidiaries shall be in pro forma compliance with each of the covenants set
forth in Section 7.1 as of the most recent Quarterly Date of the Borrower after
giving pro forma effect to any such Subordinated Debt as if such Subordinated
Debt was incurred (and the repayment of Indebtedness required by the following
proviso made) on the first day of the period being tested on such Quarterly Date
under the covenants set forth in Section 7.1; and provided further, that in each
such case the Net Cash Proceeds of such Subordinated Debt shall be applied
within two Business Days of the receipt of such proceeds to the prepayment of
the Obligations in accordance with Section 2.12(a);
(j) prior
to the Phase I Final Completion Date (to the extent related to the development
and construction of the Phase I Project) and prior to the Phase II Final
Completion Date (to the extent related to the development and construction of
the Phase II Project), Indebtedness in respect of performance bonds, guaranties,
commercial or standby letters
119
of
credit (other than Letters of Credit), bankers’ acceptances or similar
instruments issued by a Person other than Wynn Resorts or any Subsidiary of Wynn
Resorts for the benefit of a trade creditor of any Loan Party, in an aggregate
amount not to exceed $40,000,000 at any time outstanding so long as (i) such
Indebtedness is incurred in the ordinary course of business and (ii) the
obligations of any Loan Party, as the case may be, supported by such performance
bonds, guaranties, trade letters of credit, bankers’ acceptances or similar
instruments (1) consist solely of payment obligations with respect to costs
incurred in accordance with the Phase I Project Budget or the Phase II Project
Budget, as the case may be, which would otherwise be permitted to be paid by the
applicable Loan Party pursuant to the Disbursement Agreement, (2) are
secured and (3) are secured solely by Liens permitted by Section
7.3(u);
(k) Indebtedness
in respect of performance bonds, guaranties, commercial or standby letters of
credit (other than Letters of Credit), bankers’ acceptances or similar
instruments issued by a Person other than Wynn Resorts or any Affiliate of Wynn
Resorts for the benefit of a trade creditor of any Loan Party, in an aggregate
amount not to exceed $25,000,000 at any time outstanding so long as such
Indebtedness (i) is incurred in the ordinary course of business; (ii) does
not consist of payment obligations with respect to Project Costs related to the
Phase II Project; and (iii) if secured, are secured solely by Liens
permitted by Section 7.3(v);
(l) Indebtedness,
the Net Cash Proceeds of which are used for the development, construction and
opening of an Additional Entertainment Facility and/or Retail Facility, in an
aggregate principal amount (or original accreted value, as applicable) at any
time not to exceed 66⅔% of the aggregate cost of such Additional Entertainment
Facility and/or Retail Facility; provided that net
cash proceeds have been received by the Borrower as a contribution to its equity
capital in an amount equal to at least 33⅓% of the projected aggregate cost of
such Additional Entertainment Facility and/or Retail Facility, which amount has
been irrevocably committed substantially concurrent with the date of incurrence
of such Indebtedness for use to develop, construct and open such Additional
Entertainment Facility and/or Retail Facility; provided, further, the Borrower
shall cause equity capital to be contributed to the Borrower such that 33⅓% of
the costs related to the Additional Entertainment Facility and/or Retail
Facility shall have been funded with equity capital;
(m)
additional Indebtedness in an aggregate principal amount (for all Loan Parties)
not to exceed $50,000,000 at any time outstanding; and
(n)
Indebtedness of the Borrower and/or Capital Corp. in an aggregate principal
amount, including all Permitted Refinancing Indebtedness incurred to refund,
refinance or replace any such Indebtedness, not to exceed the lesser of (x)
$500,000,000, (y) the amount of such Indebtedness permitted to be incurred under
the 2014 Notes Indenture by the Loan Parties on the date that such Indebtedness
is initially issued or obtained in reliance on this clause (n) in accordance
with clause (i) below and (z) the principal amount of Indebtedness initially
issued or obtained in reliance on this clause (n) in accordance with clause (i)
below (in any such case, reduced by any principal payments from time to time
made thereon) and Guarantee Obligations of any Loan Party with respect thereto
(the “Senior Unsecured
Debt”); provided that (i) the
Senior Unsecured Debt shall initially be issued by the Borrower and/or Capital
Corp. in a single issuance (and thereafter, except with respect to Permitted
Refinancing Indebtedness related
120
thereto,
no other Indebtedness shall be issued in reliance on this clause (n)), (ii) the
Senior Unsecured Debt shall have a final maturity date not earlier than the
final maturity date of, and have a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the 2014 Notes and (iii)
subject to clause (ii) above, the terms and conditions of the Senior Unsecured
Debt (including the pricing, covenants and restrictions contained in the
agreements governing the Senior Unsecured Debt) shall be in form and substance
satisfactory to the Majority of the Arrangers.
7.3 Limitation on
Liens. Create,
incur, assume or suffer to exist any Lien upon any of its Property, whether now
owned or hereafter acquired, except for:
(a) Liens
for taxes, assessments or governmental charges or claims not yet due and payable
or which are being contested in good faith by appropriate proceedings, provided that
adequate reserves with respect thereto are maintained on the books of the
applicable Loan Party, to the extent required by GAAP;
(b) carriers’,
warehousemen’s, mechanics’, materialmen’s, suppliers’ repairmen’s or other like
Liens arising in the ordinary course of business for amounts which are not
overdue for a period of more than 30 days or that are being contested in good
faith by appropriate proceeding (and, in any event, there has been no
commencement of the sale of any portion of the Collateral on account of such
Lien); provided, that
adequate reserves with respect thereto are maintained on the books of the
applicable Loan Party, to the extent required by GAAP;
(c) Liens
arising in connection with workers’ compensation, unemployment insurance, old
age pensions and social security benefits or other similar
benefits;
(d) Liens
incurred on deposits made to secure the performance of bids, tenders, trade
contracts (other than for borrowed money), leases, statutory obligations, appeal
bonds, indemnities, release bonds, fee and expense arrangements with trustees
and fiscal agents and other obligations of a like nature incurred in the
ordinary course of business;
(e) easements,
covenants, rights-of-way, restrictions, subdivisions, parcelizations,
encroachments and other similar encumbrances and other minor defects and
irregularities in title that, in the aggregate, are not substantial in amount,
which do not in any case materially detract from the value of the Real Estate
including, without limitation, those matters set forth on any title policy
provided to the Administrative Agent subsequent to the Amended and Restated
Effective Date with respect to Real Estate acquired subsequent to the Amended
and Restated Effective Date;
(f) Liens
in existence on the Amended and Restated Effective Date listed on Schedule 7.3(f);
provided, that
no such Lien is spread to cover any additional Property (other than proceeds of
the sale or other disposition thereof) after the Amended and Restated Effective
Date;
(g) Liens
created pursuant to the Security Documents or otherwise securing the Obligations
(including Liens created thereunder securing Specified Hedge
Agreements);
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(h) leases
and subleases in each case permitted under the Loan Documents, and any leasehold
mortgage in favor of any party financing the lessee under any such lease or
sublease; provided, that
no Loan Party is liable for the payment of any principal of, or interest,
premiums or fees on, such financing;
(i) Liens
created by the Golf Course Lease;
(j) Liens
securing Indebtedness permitted under Section 7.2(c); provided that such
Liens attach only to the Aircraft, the beneficial interest of any trust which
owns the Aircraft and/or such Loan Party that either directly owns the Aircraft
or owns the beneficial interest in any trust that owns the Aircraft (in the case
of any such Loan Party, so long as such Loan Party owns no material Property
other than the Aircraft and/or the beneficial interest of any such trust) and
any proceeds thereof;
(k) Liens
securing Indebtedness permitted under Section 7.2(f)(ii);
(l) Liens
in respect of an agreement to Dispose of any Property, to the extent such
Disposition is permitted by Section 7.4 or 7.5;
(m)
so long as the Disbursement Agreement is in effect, any “Permitted Liens” as
defined under the Disbursement Agreement;
(n) any
attachment, judgment, writs or warrants of attachment or other similar Liens not
constituting an Event of Default under Section 8.1(h);
(o) Permitted
Encumbrances;
(p) Liens
arising from the filing of UCC financing statements relating solely to
leases;
(q) Liens
in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of
goods;
(r) any
zoning or similar law or right reserved to or vested in any Governmental
Authority to control or regulate the use of any Real Estate;
(s) Liens
on any Property (including the interest of a lessee under a Capitalized Lease or
Synthetic Lease Obligation) securing Indebtedness incurred or assumed for the
purpose of financing (or financing the purchase price within 180 days after the
respective purchase of Property) all or any part of the acquisition, design,
installation, construction, repair or improvement cost of such Property; provided, that (i)
such Liens do not at any time encumber any Property other than the Property (and
proceeds of the sale or other Disposition thereof and the proceeds (including
insurance proceeds), products, rents, profits, accession and replacements
thereof or thereto) financed by such Indebtedness, (ii) such Lien either exists
on the date hereof or is created in connection with the acquisition, design,
installation, construction, repair or improvement of such Property, (iii) the
Indebtedness secured by any such Lien does not exceed 100% of the fair market
value of such Property and is otherwise permitted to be incurred pursuant to
Section 7.2(g) and (iv) the Property financed by such Indebtedness is not of a
type
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that
will become affixed to the Project such that the removal thereof could
reasonably be expected to physically damage the Project in any material
respect;
(t) Liens
in respect of customary rights of set off, revocation, refund or chargeback or
similar rights under deposit, disbursement, concentration account agreements or
under the UCC or arising by operation of law of banks or other financial
institutions where any Loan Party maintains deposit, disbursement or
concentration accounts in the ordinary course of business permitted by this
Agreement;
(u) Liens
on cash deposited with, or held for the account of, any Loan Party securing
reimbursement obligations under performance bonds, guaranties, commercial or
standby letters of credit, bankers’ acceptances or similar instruments permitted
under Section 7.2(j), granted in favor of the issuers of such performance bonds,
guaranties, commercial letters of credit or bankers’ acceptances, so long as (i)
any cash disbursed to secure such reimbursement obligations is invested (if at
all) in Permitted Securities only (to the extent the Borrower has the right to
direct the investment thereof) and is segregated from the Loan Parties’ general
cash accounts so that such Liens attach only to such cash and Permitted
Securities and (ii) the amount of cash and/or Permitted Securities secured by
such Liens is not less than the amount of Indebtedness secured thereby and in
any event does not exceed 110% of the amount of the Indebtedness secured thereby
(ignoring any interest earned or paid on such cash and any dividends or
distributions declared or paid in respect of such Permitted
Securities);
(v) Liens
on cash deposited with, or held for the account of, any Loan Party securing
reimbursement obligations under performance bonds, guaranties, commercial or
standby letters of credit, bankers’ acceptances or similar instruments permitted
under Section 7.2(k), granted in favor of the issuers of such performance bonds,
guaranties, commercial letters of credit or bankers’ acceptances, so long as (i)
any cash used as security for such reimbursement obligations is invested (if at
all) in Cash Equivalents only (to the extent the Borrower has the right to
direct the investment thereof) and is segregated from the Loan Parties’ general
cash accounts so that such Liens attach only to such cash and Cash Equivalents
and (ii) the amount of cash and/or Cash Equivalents secured by such Liens does
not exceed 110% of the amount of the Indebtedness secured thereby (ignoring any
interest earned or paid on such cash and any dividends or distributions declared
or paid in respect of such Cash Equivalents);
(w)
Liens created or expressly contemplated by the Affiliate Agreements, in each
case as in effect on the date hereof, so long as such Liens do not secure
Indebtedness;
(x) Liens
securing Indebtedness permitted under Section 7.2(f)(i); provided that such
Liens attach only to the 2010 Notes Satisfaction Proceeds;
(y) to
the extent the Macau Loan was made directly to Xxxx Macau, Liens of any lenders
or other providers of debt, loan facilities or stand-by facilities to Xxxx Macau
on such Macau Loan and the proceeds thereof (in each case only to the extent
that the Macau Loan is effectively subordinated in right of payment to the
Indebtedness or other obligations of any such lenders or other providers of
debt, loan facilities or stand-by facilities);
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provided that the
Indebtedness or other obligations secured by any such Lien shall be non-recourse
to the Loan Parties (other than with respect to the Macau Loan);
(z) additional
Liens incurred by any Loan Party so long as the value of the Property subject to
such Liens (valued at the time such Lien is incurred) do not exceed $15,000,000
in the aggregate at any time;
(aa) to
the extent constituting Liens, any trust’s ownership interest in the Aircraft;
and
(bb) Liens
of sellers of goods to any Loan Party arising under Article 2 of the UCC or
similar provisions of applicable law in the ordinary course of business,
covering only the goods sold and securing only the unpaid purchase price for
such goods and related expenses.
7.4 Limitation on Fundamental
Changes. Enter
into any merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or Dispose of all or
substantially all of its Property or business, except that:
(a) any
Loan Party may be merged or consolidated with or into any other Loan Party
(provided, that
in the event any such merger or consolidation involves (i) the Borrower,
the Borrower shall be the continuing or surviving entity or (ii) Capital Corp.
or Xxxx Golf, neither Capital Corp. nor Xxxx Golf shall be the continuing or
surviving entity);
(b) any
Loan Party may Dispose of any or all of its assets (upon voluntary liquidation
or otherwise) to the Borrower or any other Loan Party (other than Capital Corp.
or Xxxx Golf);
(c) any
Loan Party (other than the Borrower) may liquidate, wind up or dissolve if the
Borrower determines in good faith that such liquidation or dissolution is in the
best interests of the Borrower and its Subsidiaries taken as a whole and is not
materially disadvantageous to the Lenders; and
(d) any
Loan Party may Dispose of any of its Property in accordance with Section
7.5.
7.5 Limitation on Disposition of
Property. Dispose
of any of its Property (including, without limitation, receivables and leasehold
interests), whether now owned or hereafter acquired, or issue or sell any shares
of Capital Stock to any Person, except:
(a) the
Disposition for fair market value of obsolete or worn out Property or Property
no longer useful in the business of the Loan Parties;
(b) the
Disposition of cash or cash equivalents, Investments permitted pursuant to
Section 7.8, inventory (in the ordinary course of business (other than the sale
of condominiums, time shares, integral ownerships or other similar interests))
and receivables (in connection with the collection thereof and otherwise as
customary in gaming operations of the type conducted by the Loan
Parties);
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(c) Dispositions
permitted by Section 7.4;
(d) the
sale or issuance of any Loan Party’s Capital Stock (other than Disqualified
Stock) to its direct parent;
(e) Dispositions
of Property having a fair market value not in excess of $40,000,000 in the
aggregate (with respect to all the Loan Parties) in any Fiscal Year; provided, that (i)
the consideration received for such Property shall be in an amount at least
equal to the fair market value thereof; and (ii) the consideration received
therefor shall be at least 75% in cash or cash equivalents;
(f) subject
to the last paragraph of this Section 7.5, the Borrower may enter into any
leases with respect to any space on or within the Project;
(g) the
dedication of space or other Dispositions of Property in connection with and in
furtherance of constructing (i) a mass transit system, (ii) a pedestrian bridge
over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar
structures to facilitate the movement of pedestrians or vehicular traffic, (iii)
a right turn lane or other roadway dedication or (iv) such other structures or
improvements reasonably related to the development, construction and operation
of the Project; provided, that (A) in
each case such dedication or other Dispositions are in furtherance of, and do
not materially impair or interfere in the use or operations (or intended use or
operations) of, the Project and (B) in no event shall the Loan Parties in the
aggregate Dispose of (other than by way of dedication to a Governmental
Authority) more than five acres of Real Estate pursuant to this Section
7.5(g);
(h) any
Loan Party may (i) license trademarks, trade names and other Intellectual
Property in the ordinary course of business and not interfering in any material
respect with the ordinary conduct of the business of the Loan Parties and (ii)
abandon any trademarks, trade names or other Intellectual Property no longer
useful in the business of the Loan Parties;
(i) the
incurrence of Liens permitted under Section 7.3; provided, that any
leases other than those permitted pursuant to Section 7.3(i) (whether or not
constituting Permitted Liens) shall be permitted only to the extent provided in
subsection (f) above and the last paragraph of this Section 7.5;
(j) Disposition
of the Xxxx Home Site Land to or as directed by Xx. Xxxx provided that
(i) no Default or Event of Default has occurred and is continuing at the
time of such Disposition and such Disposition is not prohibited under the other
Financing Agreements, (ii) the cash purchase price paid by Xx. Xxxx or his
designee for the Xxxx Home Site Land is in immediately available funds (which,
if received by a Person other than the Borrower, shall be held by such Person in
trust for the benefit of the Borrower and paid to the Borrower no later than one
Business Day after receipt of such funds) and equal to or greater than the fair
market value of the Xxxx Home Site Land, as determined in good faith by the Loan
Parties, (iii) the Mortgaged Properties affected by the Disposition of the Xxxx
Home Site Land constitute separate legal parcels under NRS, Chapter 278, (iv)
the Borrower shall have certified that construction of Xx. Xxxx’x personal
residence on the Xxxx Home Site could not reasonably be expected to materially
interfere with the use or operations of the Golf Course and
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could
not otherwise reasonably be expected to impair the overall value of the Project,
(v) appropriate reconveyance documentation in form and substance reasonably
satisfactory to the Administrative Agent and the Collateral Agent shall have
been prepared reflecting the release of the Xxxx Home Site Land from the Lien of
the applicable Mortgage(s) and such documentation shall have been recorded at
the Xxxxx County, Nevada Recorder’s Office, (vi) the Borrower shall have
delivered to the Administrative Agent and the Collateral Agent an endorsement,
or a commitment by the Title Insurer to issue an endorsement, to the Title
Policy, in either case in form and substance reasonably satisfactory to the
Administrative Agent, insuring that the execution and recordation of the
reconveyance documentation described in clause (v) above does not impair the
Lien of the Mortgage(s) affected by such reconveyance documentation and (vii) no
Points of Diversion with respect to any water permits held by any Loan Party or
otherwise utilized or expected to be utilized with respect to the Project, xxxxx
associated therewith or rights-of-way necessary for the transportation of water
available under such water permits to the Golf Course Land or the water features
of the Project, as the case may be, are located on the Xxxx Home Site
Land. Upon satisfaction of the foregoing conditions, the
Administrative Agent shall execute and deliver to the Loan Parties such
documents and instruments, including UCC-3 termination statements and deeds of
reconveyance, all as may be reasonably requested by the Loan Parties to release
the Liens granted for the benefit of the Secured Parties in the Xxxx Home Site
Land, and to effectuate such Disposition; provided, that an
instrument reasonably acceptable to the Administrative Agent is recorded against
the Xxxx Home Site Land to the effect that until the earlier of (x) the
Disposition of the Golf Course Land in accordance with Section 7.5(k) or (y) the
payment in full of the Obligations, only a personal residence for Xx. Xxxx will
be developed on the Xxxx Home Site Land, the provisions of such instrument to
burden the Xxxx Home Site Land for the benefit of the Golf Course
Land;
(k) Disposition
of the Golf Course Land and/or, at the option of the Loan Parties, Disposition
of the Capital Stock of Xxxx Golf; provided, that
(i) no Default or Event of Default has occurred and is continuing at the
time of such Disposition and such Disposition is not prohibited under the other
Financing Agreements, (ii) such Disposition occurs on or after the last day of
the second full fiscal quarter of the Borrower occurring after the Phase II
Completion Date, (iii) at the time of such Disposition, the Consolidated
Leverage Ratio (calculated in accordance with Section 1.3(b)) for the period of
four full consecutive fiscal quarters ending on each of the two most recent
Quarterly Dates was 5.0 to 1.0 or less (provided, that, in
each such case, there shall be excluded from such calculations of the
Consolidated Leverage Ratio the Consolidated EBITDA, if any, derived from the
Golf Course during any applicable period) and (iv) no Points of Diversion with
respect to any water permits held by any Loan Party or otherwise utilized or
expected to be utilized with respect to the water features of the Project (other
than the Golf Course), xxxxx associated therewith or rights-of-way necessary for
the transportation of water available under such water permits to the water
features of the Project (other than the Golf Course) are located on the Golf
Course Land (or otherwise Xxxx Golf shall have transferred (previously or in
connection with such Disposition) at no cost to the Borrower such easements as
are necessary for the Borrower to access such Points of Diversion, own and
operate such xxxxx and transport such water to the water features of the Project
and the Borrower shall have taken all actions required pursuant to Section 6.10
with respect to any Property thereby acquired). Upon satisfaction of
the foregoing conditions, the Administrative Agent shall execute and deliver to
the applicable Loan Parties such documents and instruments, including UCC-3
termination statements, deeds of reconveyance and certificates of Capital
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Stock,
all as may be reasonably requested by the Loan Parties to release the Liens
granted for the benefit of the Secured Parties in the Golf Course Land and/or
Xxxx Golf, as applicable, and to effectuate such Disposition;
(l) Disposition
of the Home Site Land; provided that
(i) no Default or Event of Default has occurred and is continuing at the
time of such Disposition and such Disposition is not prohibited under the other
Financing Agreements, (ii) such Disposition occurs on or after the last day of
the fourth full fiscal quarter of the Borrower occurring after the Phase II
Completion Date, (iii) at the time of such Disposition, the Consolidated EBITDA
of the Borrower for the most recent period of four full consecutive fiscal
quarters of the Borrower was equal to or greater than $325,000,000, (iv) the
Mortgaged Properties (other than the Home Site Land) affected by the Disposition
of the Home Site Land constitute separate legal parcels under Nevada Revised
Statutes, Chapter 278, (v) the Borrower shall have certified that construction
of permitted improvements on the Home Site Land could not reasonably be expected
to materially interfere with the use or operations of the Golf Course and could
not otherwise reasonably be expected to materially impair the overall value of
the Project, (vi) appropriate reconveyance documentation in form and substance
reasonably satisfactory to the Administrative Agent and the Collateral Agent
shall have been prepared reflecting the release of the Home Site Land from the
Lien of the applicable Mortgage(s) and such documentation shall have been
recorded at the Xxxxx County, Nevada Recorder’s Office, (vii) the Borrower shall
have delivered to the Administrative Agent and the Collateral Agent an
endorsement, or a commitment by the Title Insurer to issue an endorsement, to
the Title Policy, in either case in form and substance reasonably satisfactory
to the Administrative Agent, insuring that the execution and recordation of the
reconveyance documentation described in clause (vi) above does not impair the
Lien of the Mortgage(s) affected by such reconveyance documentation and (viii)
no Points of Diversion with respect to any water permits held by any Loan Party
or otherwise utilized or expected to be utilized with respect to the water
features of the Project or the Golf Course, xxxxx associated therewith or
rights-of-way necessary for the transportation of water available under such
water permits to the Golf Course Land or the water features of the Project, as
the case may be, are located on the Home Site Land (or otherwise Xxxx Golf shall
have transferred or reserved for the benefit of the Golf Course Land (previously
or in connection with such Disposition) at no cost to the Loan Parties such
easements as are necessary for the Loan Parties to access such Points of
Diversion, own and operate such xxxxx and transport such water to the water
features of the Project and/or the Golf Course and the Loan Parties shall have
taken all actions required pursuant to Section 6.10 with respect to any Property
thereby acquired). Upon satisfaction of the foregoing conditions, the
Administrative Agent shall execute and deliver to the Loan Parties such
documents and instruments, including UCC-3 termination statements and deeds of
reconveyance, all as may be reasonably requested by the Loan Parties to release
the Liens for the benefit of the Secured Parties in the Home Site Land, and to
effectuate such Disposition; provided, that an
instrument reasonably acceptable to the Administrative Agent is recorded against
the Home Site Land to the effect that until the earlier of (x) the Disposition
of the Golf Course Land in accordance with Section 7.5(k) or (y) the payment in
full of the Obligations, only residential housing and other non-gaming related
developments will be developed on the Home Site Land, the provisions of such
instrument to burden the Home Site Land for the benefit of the Golf Course
Land;
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(m)
Dispositions of all or a portion of the Xxxxx Land; provided that (i) any
such Disposition shall be in furtherance of the development, construction and
operation of the Project (including, without limitation, the construction,
development and operation of employee parking facilities and other ancillary
facilities) on the Xxxxx Land and/or on adjacent Property acquired or to be
acquired by any Loan Party pursuant to the transaction or series of transactions
related to such Disposition, (ii) any such Disposition shall be at fair market
value (after taking into consideration any cash and non-cash consideration
received for such Disposition from any transaction or series of transactions
related to such Disposition), (iii) any Net Cash Proceeds of any such
Disposition that are not reinvested or otherwise utilized in furtherance of the
matters described in clause (i) above within 360 days after such Disposition
shall be deemed Net Cash Proceeds and shall be required to be applied to the
prepayment of the Obligations in accordance with Section 2.12(b) (without any
right of reinvestment thereunder) and (iv) the Loan Parties shall have taken all
actions required pursuant to Section 6.10 with respect to any Property acquired
in connection with any transaction or series of transactions related to any such
Disposition;
(n)
any Event of Eminent Domain; provided, that the
Loan Parties otherwise comply with Sections 2.12(c) and 2.24, as applicable;
and
(o)
Dispositions by any Loan Party to any other Loan Party (other than Capital Corp.
or Xxxx Golf (except with respect to Dispositions, the proceeds of which are
necessary for the organizational maintenance of Capital Corp. or Xxxx Golf);
provided, that
in each case each Loan Party shall have taken all actions required pursuant to
Section 6.10 with respect to any Property acquired by it pursuant to this clause
(o);
Notwithstanding
the foregoing provisions of this Section 7.5, subsection (f) above shall be
subject to the additional provisos that: (a) no Event of Default
shall exist and be continuing at the time of such transaction, lease or sublease
or would occur as a result of entering into such transaction, lease or sublease
(or immediately after any renewal or extension thereof at the option of the
Borrower), (b) such transaction, lease or sublease could not reasonably be
expected to materially interfere with, or materially impair or detract from, the
operation of the Project, (c) no gaming, hotel or casino operations (other than
the operation of arcades and games for minors) may be conducted on any space
that is subject to such transaction, lease or sublease other than by and for the
benefit of the Loan Parties and (d) no lease or sublease may provide that a Loan
Party subordinate its fee, condominium or leasehold interest to any lessee or
any party financing any lessee; provided, that (x)
the Administrative Agent on behalf of the Lenders shall agree to provide the
tenant under any such lease or sublease with a subordination, non-disturbance
and attornment agreement and (y) unless the Administrative Agent shall otherwise
waive such requirement, with respect to any such lease having a term of five
years or more and reasonably anticipated annual rents (whether due to base rent,
fixed rents, reasonably anticipated percentage rents or other reasonably
anticipated rental income from such lease or sublease) in excess of $500,000
(other than leases solely between Loan Parties), the applicable Loan Party(ies)
shall enter into, and cause the tenant under any such lease or sublease to enter
into with the Administrative Agent for the benefit of the Lenders, a
subordination, non-disturbance and attornment agreement, in each case
substantially in the form of Exhibit N hereto with such changes as the
Administrative Agent may approve, which approval shall not be unreasonably
withheld, conditioned or delayed (provided, that such
changes do not materially and adversely
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affect
the security interests granted in favor of the Lenders under any of the Security
Documents).
7.6 Limitation on Restricted
Payments. Declare
or pay any dividend (other than dividends payable solely in common stock or in
options, warrants or other rights to purchase such common stock (excluding
Disqualified Stock) of the Person making such dividend) on, or make any payment
on account of, or set apart assets for a sinking or other analogous fund for,
the purchase, redemption, defeasance, retirement or other acquisition of, any
Capital Stock of any Loan Party, whether now or hereafter outstanding, or make
any other distribution in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of any Loan Party, or enter into
any derivatives or other transaction with any financial institution, commodities
or stock exchange or clearinghouse (a “Derivatives
Counterparty”) obligating any Loan Party to make payments to such
Derivatives Counterparty as a result of any change in market value of any such
Capital Stock (collectively, “Restricted
Payments”), except that:
(a) any
Loan Party may pay dividends or other distributions (not in excess of
$20,000,000 in the aggregate from and after the Amended and Restated Effective
Date) to Wynn Resorts, through any intermediate Wholly Owned Subsidiaries of
Wynn Resorts, of amounts necessary to repurchase Capital Stock or Indebtedness
of Wynn Resorts (other than Capital Stock held by the Existing Stockholders) to
the extent required by the Nevada Gaming Authorities for not more than the fair
market value thereof in order to avoid the suspension, revocation or denial by
the Nevada Gaming Authorities of a gaming license or other authorization
necessary for the ownership, construction, maintenance, lease, financing or
operation of the Project, in any event to the extent such suspension, revocation
or denial would have a Material Adverse Effect; provided, that so
long as such efforts do not jeopardize any such gaming license or other
authorization necessary for the ownership, construction, maintenance, lease,
financing or operation of the Project, Wynn Resorts and its Subsidiaries shall
have diligently and in good faith attempted to find a third-party purchaser(s)
for such Capital Stock or Indebtedness and no third-party purchaser(s)
acceptable to the Nevada Gaming Authorities was willing to purchase such Capital
Stock or Indebtedness within a time period acceptable to the Nevada Gaming
Authorities;
(b) to
the extent constituting Restricted Payments, (i) any Loan Party may consummate a
transaction permitted pursuant to Section 7.4, (ii) any Loan Party may make
Dispositions permitted pursuant to Section 7.5 (other than Section 7.5(b) and
Section 7.5(k) (any Dispositions permitted pursuant to Section 7.5(k), to the
extent constituting Restricted Payments, being governed by Section 7.6(h)
below)), (iii) any Loan Party may make Investments permitted pursuant to Section
7.8, (iv) any Loan Party may pay Management Fees to Wynn Resorts permitted
pursuant to Section 7.22 and (v) any Loan Party may take actions permitted
pursuant to Section 7.10;
(c) any
Loan Party may make Restricted Payments to the Borrower or any other Loan Party
(other than Capital Corp. and Xxxx Golf);
(d) any
Loan Party may make distributions to the direct or indirect owners of such Loan
Party with respect to any period during which such Loan Party is a Pass
129
Through
Entity or a Consolidated Member, such distributions in an aggregate amount not
to exceed such owners’ Tax Amounts for such period;
(e) so
long as no Default or Event of Default shall have occurred and be continuing (or
would result therefrom), the Borrower may pay dividends directly or indirectly
to Wynn Resorts to permit Wynn Resorts to repurchase, redeem or otherwise
acquire or retire Capital Stock of Wynn Resorts held by members of management of
Wynn Resorts or its Wholly Owned Subsidiaries (or their estates or trusts) upon
the death, disability or termination of employment of such employees in
accordance with any applicable Governing Documents, employment agreements,
employee benefit plans or option plans or agreements; provided, that the
aggregate amount of payments under this subsection (e) will not exceed (i)
$4,000,000 in any Fiscal Year and (ii) $10,000,000 in the aggregate from and
after the Amended and Restated Effective Date (less any Indebtedness of the Loan
Parties then outstanding pursuant to Section 7.2(h));
(f) so
long as no Default or Event of Default shall have occurred and be continuing and
no Material Adverse Effect shall have occurred and be continuing (or, in either
case, would result therefrom), the Loan Parties may make Restricted Payments not
otherwise permitted under any other subsection of this Section 7.6 in an amount
not to exceed an aggregate of (i) $12,000,000 from and after the Amended and
Restated Effective Date, plus, for each Fiscal
Year occurring after the 2006 Fiscal Year, $2,000,000 or (ii) if the Phase II
Opening Date occurs, $50,000,000 from and after the Amended and
Restated Effective Date, plus, for each Fiscal
Year occurring after the Fiscal Year in which the Phase II Opening Date occurs,
50% of the Consolidated Net Income of the Borrower for such Fiscal
Year;
(g) to
the extent constituting Restricted Payments, the Borrower may (i) pay Project
Costs as permitted pursuant to the Disbursement Agreement and (ii) make payments
permitted pursuant to Section 3.7 (or from and after the Amended and Restated
Disbursement Agreement Effective Date, the first proviso of Section 6.7) of the
Disbursement Agreement; and
(h) any
Loan Party may make Restricted Payments consisting of any portion of the Golf
Course Collateral so long as (i) the Disposition of such Golf Course Collateral
is permitted pursuant to Section 7.5(k) or (ii) the Lien on such Golf Course
Collateral has been released pursuant to Section 10.22.
7.7 Limitation on Capital
Expenditures. Make
or incur Capital Expenditures in any Fiscal Year indicated below in an aggregate
amount among all Loan Parties in excess of the corresponding amount set forth
below opposite such Fiscal Year; provided that (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
130
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
|
Maximum
Capital Expenditures
|
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).
7.8 Limitation on
Investments. Make
any advance (other than deposits with financial institutions available for
withdrawal on demand, prepaid expenses and similar items), loan, extension of
credit (by way of guaranty or otherwise) or capital contribution to, or purchase
any Capital Stock, bonds, notes, debentures or other debt securities of,
purchase all or substantially all of the assets constituting the business of a
division, branch or other unit operation from, or make any other investment in,
any other Person (all of the foregoing, “Investments”),
except:
(a) extensions
of trade credit in the ordinary course of business (including, without
limitation, advances to patrons of the Project’s casino operation consistent
with ordinary course gaming operations);
(b) Investments
in Cash Equivalents;
(c) to
the extent constituting Investments, the incurrence of Indebtedness permitted by
Sections 7.2(b), 7.2(c), 7.2(d) and 7.2(e);
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(d) loans
and advances to employees of the Loan Parties in the ordinary course of business
(including, without limitation, for travel, entertainment and relocation
expenses) in an aggregate amount for all Loan Parties not to exceed $5,000,000
at any one time outstanding;
(e) Investments
by any Loan Party in the Borrower or any other Loan Party (other than Capital
Corp. or Xxxx Golf (except with respect to Investments, the proceeds of which
are necessary for the corporate maintenance of Capital Corp. or Xxxx
Golf));
(f) Investments
consisting of securities received in settlement of debt created in the ordinary
course of business or in satisfaction of judgments;
(g) capital
contributions in connection with and in furtherance of the formation of new
Subsidiaries in accordance with Section 7.17;
(h) to
the extent constituting Investments, (i) any Loan Party may consummate a
transaction permitted pursuant to Section 7.4, (ii) any Loan Party may make
Dispositions permitted pursuant to Section 7.5 (including, without limitation,
the assignment of gaming debts evidenced by a credit instrument, including what
are commonly referred to as “markers,” to an Affiliate of the Borrower for the
purpose of collecting amounts outstanding under such gaming debts or “markers”
due to the Borrower thereunder; provided, however, that any
Affiliate receiving any such assignment enters into a binding agreement to pay
all amounts so collected back to the Borrower within 30 days of receipt of
payment of such collected amounts; provided, further,
that any such Affiliate is not, at the time of any such assignment, in default
of its obligations under any such binding agreement previously delivered with
respect to any such assignment), (iii) any Loan Party may make Restricted
Payments permitted pursuant to Section 7.8 and (iv) any Loan Party may take
actions permitted pursuant to Section 7.10;
(i) Investments
consisting of pledges or deposits made in the ordinary course of
business;
(j) Investments
consisting of Hedge Agreements permitted by Section 7.18;
(k) Investments
consisting of debt securities and other non-cash consideration received as
consideration for a Disposition permitted by Section 7.5;
(l) the
Macau Loan;
(m)
to the extent constituting Investments, any Loan Party’s beneficial ownership
interests in a trust that owns the Aircraft;
(n)
Investments in joint ventures that solely provide retail services at the Project
so long as (i) a Loan Party owns 50% of each such joint venture and (ii) such
investments do not exceed $10,000,000 at any time outstanding;
(o) Investments
by the Borrower in the Completion Guarantor as expressly permitted under the
Disbursement Agreement;
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(p) any
repurchase of 2014 Notes permitted by Section 7.9; and
(q) in
addition to Investments otherwise expressly permitted by this Section 7.8, so
long as no Default or Event of Default shall have occurred and be continuing at
the time such Investment is made or would result therefrom, Investments by the
Loan Parties in an aggregate amount (valued at cost) not to exceed $20,000,000
at any time outstanding.
7.9 Limitation on Optional
Payments and Modifications of Governing Documents. (a)
Make or make a binding offer to make any optional or voluntary payment,
prepayment, repurchase or redemption of, or otherwise voluntarily or optionally
defease, any Senior Unsecured Debt or any Indebtedness that is either
subordinate or junior in right of payment to the Obligations (including any
Subordinated Debt), or segregate funds for any such payment, prepayment,
repurchase, redemption or defeasance, or enter into any derivative or other
transaction with any Derivatives Counterparty obligating any Loan
Party to make payments to such Derivatives Counterparty as a result of any
change in market value of such Indebtedness, (b) make or make a binding offer to
make any optional or voluntary payment, prepayment, repurchase or redemption of,
or otherwise voluntarily or optionally defease the 2014 Notes unless at such
time no Default or Event of Default shall have occurred and be continuing and,
except for Permitted Notes Repurchases, the aggregate Available Revolving Credit
Commitments immediately prior to and after such actions shall be no less than
$100,000,000 (and for the avoidance of doubt, any 2014 Notes repurchased or
redeemed by the Borrower or any other Loan Party shall be cancelled and retired
immediately upon the consummation of the repurchase or redemption of such 2014
Notes), (c) amend or modify, or permit the amendment or modification of its
Governing Documents in any manner materially adverse to the Lenders or (d)
permit the Completion Guarantor to amend, modify or otherwise change the
provisions of its operating agreement relating to “conduct and
separateness”.
7.10 Limitation on Transactions
with Affiliates. Enter
into any transaction, including, without limitation, any purchase, sale, lease
or exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than such
transactions solely between or among Loan Parties (other than any such
transactions providing benefit to Capital Corp. or Xxxx Golf)) unless such
transaction is:
(a) on
terms that are not less favorable to that Loan Party than those that might be
obtained at the time in a comparable arm’s length transaction with Persons who
are not Affiliates of such Loan Party and the applicable Loan Party has
delivered to the Administrative Agent prior to the consummation of any such
transaction (1) with respect to any transaction or series of related
transactions involving aggregate consideration in excess of $10,000,000, a
resolution of the Board of Directors of the applicable Loan Party certifying
that such transaction or series of related transactions complies with this
Section 7.10 and that such transaction or series of related transactions has
been approved by a majority of the disinterested members of the Board of
Directors of the applicable Loan Party, to the extent there are any such
disinterested members of such Board of Directors and (2) with respect to any
such transaction or series of related transactions that involves aggregate
consideration in excess of $25,000,000, an opinion as to the fairness to the
applicable Loan Party at the time such transaction or series of related
transactions is entered into from a financial point of view issued by an
accounting, appraisal or investment banking firm of national standing; provided, that, in no
such case shall
133
such
a transaction or series of related transactions consist of, contain, or provide
for the payment of (i) Affiliated Overhead Expenses or (ii) any fee, profit or
similar component benefiting any Loan Party or Affiliate of a Loan Party (other
than a Loan Party other than Capital Corp. or Xxxx Golf);
(b) a
Disposition permitted pursuant to Section 7.5 (provided, that the
requirements of subsection (a) above shall apply to leases of the Project by the
Borrower permitted pursuant to Section 7.5(f) (other than the Dealership Lease
Agreement) and Dispositions permitted pursuant to Section 7.5(b)), an Investment
permitted pursuant to Section 7.8 or a Restricted Payment permitted pursuant to
Section 7.6;
(c) the
reimbursement by the Borrower and the other Loan Parties to Wynn Resorts of
Allocable Overhead to the extent incurred by Wynn Resorts; provided, that the
amount of Allocable Overhead reimbursable by the Loan Parties pursuant to this
Section 7.10(c) during any 12-month period shall not exceed, in the aggregate,
2.00% of Net Revenues for the period of four full consecutive fiscal quarters of
the Borrower most recently ended prior to the commencement of such 12-month
period;
(d) expressly
contemplated by the Affiliate Agreements (but, with respect to the Management
Agreement, only to the extent (i) not related to the use of any aircraft
(including the Aircraft) (such use being governed pursuant to Section 7.10(f))
or (ii) payments thereunder do not constitute Management Fees (payments of such
amounts being governed pursuant to Section 7.22)) and payment of Management Fees
as permitted by Section 7.22; provided, however, that any
amendments, modifications or supplements thereto after the Closing Date shall
comply with Section 7.10(a);
(e) the
payment of Project Costs as permitted pursuant to the Disbursement
Agreement;
(f) associated
with the use of any aircraft (including the Aircraft) for any purpose not
reasonably related to the Project or the Project-related Permitted Businesses of
the Loan Parties, in which case either (i) if such use is by management of Wynn
Resorts or any of its Subsidiaries (other than any Loan Party), the applicable
Loan Party shall be reimbursed in an amount determined pursuant to the Standard
Industry Fare Level formula, as described in
Treasury
Regulation Section 1.61-21(g) or (ii) the applicable Loan Party shall be
reimbursed promptly for all variable costs and expenses (including, without
limitation, fuel costs, personnel costs, overhead and similar operating costs
and expenses but in no event costs or expenses related to the acquisition,
maintenance or repair of any such aircraft or any fixed assets related thereto)
incurred by such Loan Party in connection with such use;
(g) associated
with an employment agreement entered into by any Loan Party with a Person in the
ordinary course of business;
(h) to
the extent not constituting Allocable Overhead or Management Fees, the payment
of reasonable directors’/managers’ fees to directors and managers of any Loan
Party or the Completion Guarantor, and customary indemnification and insurance
arrangements in favor of such directors and managers, in each case in the
ordinary course of business;
134
(i) the
issuance by the Borrower and/or Capital Corp. of the exchange notes contemplated
by the 2014 Notes Indenture as of the Closing Date (including any exchange notes
issued in exchange for Additional 2014 Notes);
(j) the
Disposition or issuance by any Loan Party of its Capital Stock permitted
pursuant to Section 7.5;
(k) the
transfer of funds between the Borrower and the Completion Guarantor as
contemplated by the Disbursement Agreement; or
(l) any
repurchase of 2014 Notes permitted by Section 7.9.
7.11 Limitation on Sales and
Leasebacks.
Enter into any arrangement with any Person providing for the leasing by any Loan
Party of Property which has been or is to be sold or transferred by any Loan
Party to such Person or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such Property or rental obligations
of any Loan Party.
7.12 Limitation on Changes in
Fiscal Periods. Permit
the fiscal year of any Loan Party to end on a day other than December 31 or
change any Loan Party’s method of determining fiscal quarters.
7.13 Limitation on Negative
Pledge Clauses. Enter
into or suffer to exist or become effective any agreement that prohibits or
limits the ability of a Loan Party to create, incur, assume or suffer to exist
any Lien upon any of its Property or revenues, whether now owned or hereafter
acquired, to secure the Obligations other than (a) this Agreement and the
other Financing Agreements, (b) any agreements governing any Liens
permitted pursuant to Sections 7.3(d), 7.3(f), 7.3(s), 7.3(u), 7.3(v) and 7.3(x)
or Capital Lease Obligations otherwise permitted hereby (in which case, any
prohibition or limitation shall only be effective against the Property financed
thereby or subject to such Lien and proceeds thereof); provided, that, with
respect to agreements governing Liens permitted pursuant to Section 7.3(s), the
principal amount of Indebtedness thereunder shall exceed 75% of the original
purchase price of the assets financed thereby, (c) any agreements governing
Indebtedness described in Section 7.2(c) secured by a Lien on the Aircraft
permitted pursuant to Section 7.3(j) (in which case any such prohibition or
limitation shall only be effective against the Aircraft and proceeds thereof),
(d) to the extent the Macau Loan was made directly to Xxxx Macau, any agreements
governing the Macau Loan (in which case, any such prohibition or limitation
shall only be effective against the Macau Loan and proceeds thereof), (e)
customary nonassignment provisions contained in leases, licenses and similar
agreements and other contracts (in each case other than those with respect to
Real Estate (other than Real Estate excluded from the Collateral pursuant to
Section 6.10(c)) and so long as such restrictions are limited to such leases,
licenses and similar agreements or other contracts, or, in the case of leases,
licenses and similar agreements, the Property subject thereto) which, taken as a
whole, are not material to the business and operations of the Loan Parties, (f)
any agreements governing the 2010 Notes Satisfaction Proceeds, (g) any
agreements governing any Excluded Assets or Released Assets (in which case any
prohibition or limitation shall only be effective against such Excluded Assets
or Released Assets applicable thereto and proceeds
135
thereof)
and (h) as required by applicable law or any applicable rule or order,
including those of any Nevada Gaming Authority.
7.14 Limitation on Restrictions
on Subsidiary Distributions, etc. Enter
into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Loan Party to (a) make Restricted
Payments in respect of any Capital Stock of such Loan Party held by, or pay or
subordinate any Indebtedness owed to, any other Loan Party, (b) make
Investments in any other Loan Party or (c) transfer any of its assets to
any other Loan Party, except for such encumbrances or restrictions existing
under or by reason of (i) any restrictions existing under the Loan
Documents, (ii) any restrictions under the Financing Agreements,
(iii) as required by applicable law or any applicable rule or order,
including those of any Nevada Gaming Authority, (iv) any restrictions imposed
pursuant to an agreement that has been entered into in connection with the
Disposition of all or substantially all of the Capital Stock or Property of a
Loan Party or the Disposition of Property covered by such restriction, (v) any
restrictions imposed with respect to any Property subject to a Lien permitted in
accordance with Section 7.3 pursuant to an agreement that has been entered into
in connection with the incurrence of such Liens so long as such restrictions
relate solely to the Property subject to such Liens and (vi) customary
nonassignment provisions in leases, licenses and similar agreements and other
contracts which, taken as a whole, are not material to the business and
operations of the Loan Parties.
7.15 Limitation on Lines of
Business. Enter
into any business or investment activities, whether directly or indirectly,
other than Permitted Businesses; provided, however, that (a)
Capital Corp. shall not hold any material Property, incur any Indebtedness or
become liable for any material obligations or engage in any business activities
(other than as co-obligor or guarantor with respect to the Financing Agreements)
or have any Subsidiaries and (b) Xxxx Golf shall not hold any material Property
other than the Golf Course Land or engage in any business activities other than
those pursuant to the Golf Course Lease.
7.16 Restrictions on
Changes.
(a) Agree
to any amendment to, assignment or termination of, or waive any of its rights
under, any Permit or Material Contract without in each case obtaining the prior
written consent of the Required Lenders if in any such case such amendment,
assignment, termination or waiver could reasonably be expected to have a
Material Adverse Effect (taking into consideration any viable replacements or
substitutions therefor at the time such determination is made).
(b) Except
in connection with a full redemption or other repayment under any Financing
Agreements (other than the Loan Documents) with Permitted Refinancing
Indebtedness, amend or otherwise change the terms of any Financing Agreements
(other than the Loan Documents) or make any payment consistent with an amendment
thereof or change thereto (i) if the effect of such amendment or change is to
increase the interest rate or fees on the Indebtedness evidenced thereby, change
to earlier or more frequent dates any dates upon which payments of principal or
interest are due thereon (including, without limitation, changes to, or new
additions of, mandatory prepayment provisions) or (ii) if the effect of such
amendment or change, together with all other amendments and changes previously
made, is to materially
136
increase
the obligations of the obligors thereunder or to confer any additional rights on
the holders of the Indebtedness or obligations evidenced thereby (or a trustee
or other representative on their behalf) which could reasonably be expected to
be materially adverse to the Loan Parties (taken as a whole) or the Lenders;
provided, that
the Borrower may amend the terms of any other Financing Agreement to increase
the principal amount thereof if such increase is otherwise permitted by this
Agreement.
7.17 Limitation on Formation and
Acquisition of Subsidiaries and Purchase of Capital Stock. Form,
create or acquire any Subsidiary, except the Borrower and its Subsidiaries may
form, create or acquire new Domestic Subsidiaries; provided, that (a)
any such new Subsidiary shall be a Wholly Owned Subsidiary of the Borrower and
(b) any such new Subsidiary shall become a Loan Party hereunder and otherwise
comply with the requirements of Section 6.10.
7.18 Limitation on Hedge
Agreements. Enter
into any Hedge Agreement other than Hedge Agreements entered into in the
ordinary course of business, and not for speculative purposes, and to protect
against changes in interest rates, foreign exchange rates or commodity prices
(with respect to commodities utilized by any Loan Party in a Permitted Business,
including natural gas).
7.19 Limitation on Sale or
Discount of Receivables. Except
as permitted pursuant to Section 7.5(b), sell with recourse, or discount or
otherwise sell for less than the face value thereof, any of its notes or
accounts receivable other than an assignment for purposes of collection in the
ordinary course of business.
7.20 Limitation on Zoning and
Contract Changes and Compliance. Initiate,
consent to or acquiesce to (a) any zoning downgrade of the Mortgaged Properties
or seek any material variance under any existing zoning ordinance except, in
each case, to the extent such downgrade or variance could not reasonably be
expected to materially and adversely affect the occupancy, use or operation of
all or any material portion of the Site, (b) use or permit the use of the
Mortgaged Properties in any manner that could result in such use becoming a
non-conforming use (other than a non-conforming use otherwise in compliance with
applicable land use laws, rules and regulations by virtue of a variance or
otherwise) under any zoning ordinance or any other applicable land use law, rule
or regulation or (c) any change in any laws, requirements of Governmental
Authorities or obligations created by private contracts which now or hereafter
could reasonably be expected to materially and adversely affect the occupancy,
use or operation of all or any material portion of the Site.
7.21 No Joint Assessment;
Separate Lots. Suffer,
permit or initiate the joint assessment of any Mortgaged Property with any other
real property constituting a separate tax lot.
137
7.22 Restrictions on Payments of
Management Fees. Pay
to Wynn Resorts any Management Fees unless:
(a) no
Default or Event of Default shall have occurred and be continuing or would
result from such payment and no Material Adverse Effect shall have occurred and
be continuing or would result from such payment;
(b) the
Consolidated Leverage Ratio (calculated in accordance with Section 1.3(b)) for
the period of four full consecutive fiscal quarters ending on the Quarterly Date
immediately preceding the date on which such Management Fee is proposed to be
paid is no greater than 3.5 to 1.0 (calculated on a pro forma basis, giving
effect to the payment of the Management Fees proposed to be paid and any
Indebtedness proposed to be incurred to finance the payment of such Management
Fees as if the same was paid and/or incurred during such prior period);
and
(c) such
Management Fees in the aggregate do not exceed, during any 12-month period, 1.5%
of the Net Revenues for the period of four full consecutive fiscal quarters of
the Borrower most recently ended prior to the commencement of such 12-month
period.
Any
Management Fees not permitted to be paid during a particular 12-month period
pursuant to this Section 7.22 shall be deferred and shall
accrue. Such accrued and unpaid Management Fees may be paid in any
subsequent 12-month period to the extent such payment would be permitted under
subsections (a), (b) and (c) of this Section 7.22 and not prohibited by the
Management Fee Subordination Agreement.
7.23 [INTENTIONALLY
OMITTED]
7.24 Permitted Activities of Xxxx
Resorts Holdings. Permit
Xxxx Resorts Holdings to (a) engage in any business or activity or own any
assets other than (i) holding 100% of the Capital Stock of the Borrower and
performing activities incidental thereto (including making dividends to Wynn
Resorts with the proceeds of Restricted Payments received by it from the
Borrower in accordance with the Loan Documents) and (ii) activities associated
with or incidental to any Intellectual Property it may hold from time to time,
including pursuant to the Wynn IP Agreement, (b) sell or otherwise Dispose of
any Capital Stock of the Borrower or (c) fail to hold itself out to the public
as a legal entity separate and distinct from all other Persons; provided that nothing
in this Section 7.24 shall restrict or prohibit Xxxx Resorts Holdings from
Disposing of any of its Property other than the Capital Stock of the
Borrower.
7.25 Limitation on Golf Course
Land and Golf Course Development. At
any time prior to the Disposition of any of the Golf Course Collateral in
accordance with Section 7.5(k) or release of the Golf Course Collateral in
accordance with Section 10.22 (i) construct upon, develop or improve, or permit
to be constructed upon, developed or improved, the Golf Course Land in any
material respect, including any excavation or site work on the Golf Course Land,
(ii) enter into, or permit to be entered into, any contract or agreement for
such construction, development or improvement, or for any materials, supplies or
labor necessary in connection with such construction, development or improvement
(other than a contract or agreement that is conditional upon the Disposition of
the Golf Course Land in accordance with
138
Section
7.5(k)) or (iii) incur any Indebtedness, the proceeds of which are expected to
be used, or are used, for the construction, development or improvement of the
Golf Course Land, except:
(a) maintenance
and repairs in the ordinary course of business necessary to keep all associated
Property and systems reasonably related to the operation of the Golf Course Land
and the Golf Course in good and working order and condition;
(b) modifications
and/or reconfigurations of the Golf Course either (x) in connection with and in
furtherance of the Disposition of the Xxxx Home Site Land or the Home Site Land
in accordance with Sections 7.5(j) and 7.5(l) or (y) desirable, in the
reasonable opinion of the Borrower, in order to enhance or improve the Golf
Course;
(c) use
and operation of the Golf Course on the Golf Course Land consistent with the
Golf Course Lease; and
(d) in
the event of loss or damage to the Golf Course Land or improvements thereon or
any Event of Eminent Domain, the repair and restoration of such Property in
accordance with Section 2.24.
7.26 Acquisition of Real
Property. Acquire
a fee, easement or other interest in any real property (including, without
limitation, any lease of real property, but excluding (x) the acquisition (but
not the exercise) of any options to acquire any such interests in real property
and (y) the transactions contemplated by the Golf Course Lease and any other
leasehold interests acquired by a Loan Party over real property already subject
to the Lien of the Mortgages) unless (a) the Borrower or an applicable
other Loan Party shall have delivered to the Administrative Agent a Phase I
Report with respect to such real property along with a corresponding reliance
letter from an environmental consultant reasonably satisfactory to the
Administrative Agent confirming that no Hazardous Substances were found in, on
or under such real property in a manner that could reasonably be expected to
result in a material liability to such Loan Party and that a Phase II
Report is not warranted by the findings of such Phase I Report and
(b) if Hazardous Substances were found in, on or under such real property
pursuant to such Phase I Report in a manner that could reasonably be
expected to result in a material liability to such Loan Party or a Phase II
Report is warranted by the findings of such Phase I Report, the Borrower or
an applicable other Loan Party shall have either (i) delivered to the
Administrative Agent on behalf of the Lenders a Phase II Report with
respect to such real property along with a corresponding reliance letter from an
environmental consultant reasonably satisfactory to the Administrative Agent,
confirming, in form and substance reasonably satisfactory to the Administrative
Agent, either (A) that no Hazardous Substances were found in, on or under
such real property in a manner that could reasonably be expected to result in a
material liability to such Loan Party or (B) matters otherwise reasonably
satisfactory to the Administrative Agent or (ii) delivered to the
Administrative Agent an environmental indemnity agreement in form and substance
reasonably satisfactory to the Administrative Agent pursuant to which an
indemnitor reasonably satisfactory to the Administrative Agent indemnifies the
Borrower, the relevant other Loan Parties and the Lenders from any and all
damages or other liabilities relating to or arising from Hazardous Substances
then in, on or under such real property or otherwise caused by or attributable
to such indemnitor. Notwithstanding the foregoing, this Section 7.26
shall not apply to the acquisition by the Borrower or any other Loan Party of
any fee, easement or other interest
139
in
any real property as to which the Majority of the Arrangers have determined that
the size, location and proposed use thereof are insufficient to justify the time
and expense of satisfying the terms of this Section 7.26.
7.27 [INTENTIONALLY
OMITTED]
7.28 Golf Course Lease
Termination. Terminate
or permit the termination of, or reduce or permit the reduction of the Real
Estate or other Property covered by, the Golf Course Lease until such time as
the Golf Course Land is Disposed of in accordance with Section 7.5(k) or the
Golf Course Collateral is otherwise released in accordance with Section 10.22
(provided, that
the Real Estate or other Property subject to the Golf Course Lease may be
reduced in connection with (a) the Disposition of the Xxxx Home Site Land
pursuant to Section 7.5(j) or the Disposition of the Home Site Land in
accordance with Section 7.5(l), in either case so long as such reduction is only
with respect to such Real Estate or other Property being Disposed of pursuant to
such Disposition, (b) any event of loss or damage or Event of Eminent Domain so
long as there is no breach or default of the provisions of Section 2.24
applicable thereto and (c) any Liens permitted pursuant to Section
7.3(e)).
SECTION
8. EVENTS OF DEFAULT
If
any of the following events shall occur and be continuing:
(a) (i)
The Borrower shall fail to pay any principal of any Loan when due in accordance
with the terms hereof; or (ii) the Borrower shall fail to pay any principal of
any Reimbursement Obligation within two Business Days after such Reimbursement
Obligation becomes due in accordance with the terms hereof; or (iii) the
Borrower shall fail to pay any interest on any Loan or Reimbursement Obligation
or any Loan Party shall fail to pay any other Obligation payable hereunder or
under any other Loan Document within five days after any such interest or other
amount under this clause (iii) becomes due in accordance with the terms hereof;
provided, that
the failure to pay any amount due under the Disbursement Agreement (and not
otherwise due hereunder) shall constitute an Event of Default hereunder only to
the extent such failure to pay constitutes a Disbursement Agreement Event of
Default; or
(b) Any
representation or warranty made or deemed made by Xxxx Resorts Holdings, the
Completion Guarantor or any Loan Party herein or in any other Loan Document or
that is contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or any
such other Loan Document shall prove to have been inaccurate in any material
respect on or as of the date made or deemed made; provided, that the
inaccuracy of any representation or warranty contained only in the Disbursement
Agreement shall constitute an Event of Default hereunder only to the extent such
inaccuracy constitutes a Disbursement Agreement Event of Default;
or
(c) (i) Any
Loan Party shall default in the observance or performance of any covenant or
agreement contained in Section 6.2(m), Section 6.4(a) or Section 7 hereof,
(ii) the Completion Guarantor shall default in the observance or performance of
any covenant or agreement contained in the Completion Guaranty, (iii) an “Event
of Default” under and as defined in any Mortgage shall have occurred and be
continuing, (iv) a Disbursement Agreement
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Event
of Default shall have occurred and be continuing or (v) any Loan Party shall
fail to at all times maintain in full force and effect the insurance policies
and programs required by Section 6.5(d) (except for automobile, workers
compensation, pollution liability and design errors and omissions insurance);
or
(d) Xxxx
Resorts Holdings or any Loan Party shall default in the observance or
performance of any other covenant or agreement contained in this Agreement or
any other Loan Document to which it is a party (other than as provided in
subsections (a) through (c) of this Section), and such default shall continue
unremedied for a period of 30 days after the earlier of (i) the Borrower or any
other Loan Party becoming aware of such default or (ii) receipt by the Borrower
or any other Loan Party of written notice from the Administrative Agent or any
Lender of such default; provided, that the
failure to perform or comply with any such provision of the Disbursement
Agreement shall constitute an Event of Default hereunder only to the extent such
failure to perform or to comply constitutes a Disbursement Agreement Event of
Default; or
(e) The
Borrower or any other Loan Party shall (i) default in making any payment of any
principal of or interest on any Indebtedness (other than Indebtedness referred
in Section 8(a)) beyond the period of grace, if any, provided in the instrument
or agreement under which such Indebtedness was created; or (ii) default in the
observance or performance of any other agreement or condition relating to any
such Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to
permit the holder or beneficiary of such Indebtedness (or a trustee or agent on
behalf of such holder or beneficiary) to cause with the giving of notice and
after the expiration of all grace and cure periods related thereto immediately
such Indebtedness to become due prior to its stated maturity or (in the case of
any such Indebtedness constituting a Guarantee Obligation) to become payable;
provided, that
a default, event or condition described in subsection (i) or (ii) of this
subsection (e) shall not at any time constitute an Event of Default unless, at
such time, one or more defaults, events or conditions of the type described in
subsections (i) and (ii) of this subsection (e) shall have occurred and be
continuing with respect to Indebtedness the outstanding principal amount of
which exceeds in the aggregate $30,000,000; provided, further, that clause
(ii) above shall not apply to (A) Indebtedness that becomes due solely as a
result of the voluntary sale or transfer of property or assets or as a result of
a mandatory prepayment or a regularly scheduled repayment or (B) prepayments
that become due as a result of any incurrence of Indebtedness (in each case to
the extent such sale, transfer or incurrence is permitted by the terms of such
Indebtedness); or
(f) (i) Xxxx
Resorts Holdings, the Completion Guarantor, the Borrower or any other Loan Party
shall commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or Xxxx Resorts Holdings, the Completion Guarantor, the Borrower or any
other Loan Party shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against Wynn Resorts
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Holdings,
the Completion Guarantor, the Borrower or any other Loan Party any case,
proceeding or other action of a nature referred to in subsection (i) above that
(A) results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period of
60 days; or (iii) there shall be commenced against Xxxx Resorts Holdings, the
Completion Guarantor, the Borrower or any other Loan Party any case, proceeding
or other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its assets
that results in the entry of an order for any such relief that shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60 days from
the entry thereof; or (iv) Xxxx Resorts Holdings, the Completion Guarantor, the
Borrower or any other Loan Party shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts set
forth in subsection (i), (ii), or (iii) above; or (v) Xxxx Resorts Holdings, the
Completion Guarantor, the Borrower or any other Loan Party shall generally not,
or shall admit in writing its inability to, pay its debts as they become due;
or
(g) (i) Any
Person shall engage in any “prohibited transaction” (as defined in Section 406
of ERISA or Section 4975 of the Code) involving any Plan, (ii) any
“accumulated funding deficiency” (as defined in Section 302 of ERISA), whether
or not waived, shall exist with respect to any Plan or any Lien in favor of the
PBGC or a Plan shall arise on the assets of any Loan Party or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is
likely to result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of
ERISA other than in a standard termination under Section 4041(b) of ERISA, (v)
any Loan Party or any Commonly Controlled Entity shall, or is reasonably likely
to, incur any liability in connection with a withdrawal from, or the Insolvency
or Reorganization of, a Multiemployer Plan or (vi) any Loan Party, or any
of their Subsidiaries or any Commonly Controlled Entity shall be required to
make during any Fiscal Year payments pursuant to any employee welfare benefit
plan (as defined in Section 3(1) of ERISA) that provides benefits to retired
employees (or their dependents), other than as required by Sections 601 et. seq.
of ERISA, Section 4980B of the Code, or the corresponding provisions of
applicable state law; and in each case in subsections (i) through (vi) above,
such event or condition, together with all other such events or conditions, if
any, could reasonably be expected to have a Material Adverse Effect;
or
(h) One
or more judgments or decrees shall be entered against any Loan Party involving
for the Loan Parties, taken as a whole, a liability (to the extent not paid or
adequately covered by insurance as to which the relevant insurance company has
acknowledged coverage) of $30,000,000 or more, and enough of such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending appeal
within 60 days from the entry thereof to reduce the aggregate liability therefor
below $30,000,000; or
(i) Any
of the Security Documents or the guarantee contained in Section 2 of the
Guarantee shall cease, for any reason (other than pursuant to the terms
thereof), to be in full force and effect, or any Loan Party shall so assert or
shall assert that any provision of any Loan Document is not in full force and
effect, or any Lien created by any of the Security
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Documents
shall cease to be enforceable and of the same effect and priority purported to
be created thereby; provided, that no
default, event or condition described in this paragraph (i) with respect to any
Security Document existing solely as a result of any action or failure to act on
the part of a party to any such Security Document other than a Loan Party shall
constitute a Default or Event of Default; or
(j) Any
of the Operative Documents shall terminate or be terminated or canceled, become
invalid or illegal or otherwise cease to be in full force and effect prior to
its stated expiration date or the Borrower, any other Loan Party or any other
Person shall breach or default under any term, condition, provision, covenant,
representation or warranty contained in any Project Document (after the giving
of any applicable notice and the expiration of any applicable grace period);
provided, that
the occurrence of any of the foregoing events with respect to any Project
Document shall constitute an Event of Default hereunder only if the same could
reasonably be expected to result in a Material Adverse Effect and the same shall
continue unremedied for thirty (30) days after the earlier of (i) the
Borrower or any other Loan Party becoming aware of such occurrence or (ii)
receipt by the Borrower or any other Loan Party of written notice from the
Administrative Agent or any Lender of such occurrence; provided, however, that in the
case of any such Project Document, if the occurrence is the result of actions or
inactions by a party other than a Loan Party, then no Event of Default shall be
deemed to have occurred as a result thereof if the Borrower provides written
notice to the Administrative Agent immediately upon (but in no event more than
five (5) Business Days after) the Borrower or any Loan Party becoming aware
of, or receiving notice of, such occurrence that the relevant Loan Party intends
to replace such Project Document and (x) within sixty (60) days of such
occurrence, such Loan Party obtains a replacement obligor or obligors for the
affected party, (y) within sixty (60) days of such occurrence, such Loan
Party enters into a replacement Project Document on terms no less beneficial to
such Loan Party and the Secured Parties in any material respect than the Project
Document being replaced; provided, however, that the
replacement Project Document may require the applicable Loan Party to pay
amounts under the replacement Project Document in excess of those that would
have been payable under the replaced Project Document and (z) such
occurrence, after considering any replacement obligor and replacement Project
Document and the time required to implement such replacement, has not had and
could not reasonably be expected to have a Material Adverse Effect; and provided, further, that a
breach, default or termination under any Construction Agreement shall constitute
an Event of Default hereunder only to the extent such breach, default or
termination constitutes a Disbursement Agreement Event of Default;
or
(k) [INTENTIONALLY
OMITTED]
(l) A
Change of Control shall occur; or
(m) Any
Subordinated Debt or the Management Fees payable under the Management Agreement
shall cease, for any reason, to be validly subordinated to the Obligations of
the Loan Parties as provided in the Management Agreement, the Management Fee
Subordination Agreement and the documentation, instruments or other agreements
related to the Subordinated Debt, as the case may be; or
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(n) A
License Revocation that continues for three consecutive Business Days affecting
gaming operations accounting for five percent or more of the consolidated gross
revenues (calculated in accordance with GAAP) of the Borrower related to gaming
operations; or
(o) The
Borrower or any other Loan Party shall fail to observe, satisfy or perform, or
there shall be a violation or breach of, any of the terms, provisions,
agreements, covenants or conditions attaching to or under the issuance to such
Person of any Permit or any such Permit or any provision thereof shall be
suspended, revoked, cancelled, terminated or materially and adversely modified
or fail to be in full force and effect or any Governmental Authority shall
challenge or seek to revoke any such Permit, if such failure to perform,
violation, breach, suspension, revocation, cancellation, termination or
modification could reasonably be expected to have a Material Adverse Effect;
or
(p) Xxxx
Resorts Holdings takes any actions in violation of Section 7.24;
then,
and in any such event, (A) if such event is an Event of Default specified
in subsection (i) or (ii) of paragraph (f) above with respect to Xxxx Resorts
Holdings or any Loan Party, automatically the Commitments shall immediately
terminate and the Loans hereunder (with accrued interest thereon) and all other
Obligations (including, without limitation, all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit shall
have presented the documents required thereunder) shall immediately become due
and payable and (B) if such event is any other Event of Default, either or both
of the following actions may be taken: (i) with the consent of
the Required Facility Lenders for the respective Facility, the Administrative
Agent may, or upon the request of the Required Facility Lenders for the
respective Facility, the Administrative Agent shall, by notice to the Borrower,
declare the Revolving Credit Commitments, the New Term Loan Commitments, and/or
the Term B Loan Commitments, as the case may be, to be terminated forthwith,
whereupon the applicable Commitments shall immediately terminate; and (ii) with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other Obligations (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) to be due and
payable forthwith, whereupon the same shall immediately become due and
payable. Upon the occurrence and during the continuation of an Event
of Default, the Administrative Agent and the Lenders shall be entitled to
exercise any and all remedies available under the Security Documents (subject to
applicable Nevada Gaming Laws and the UCC and securing any required Nevada
Gaming Approvals), including, without limitation, the Security Agreement and the
Mortgages, or otherwise available under applicable law, in equity or otherwise,
including, without limitation, the right to (I) enter into possession of the
Project and perform any and all work and labor necessary to complete the Project
or to operate and maintain the Project and (II) set off and apply all monies on
deposit in any Account or any amounts paid under the Completion Guaranty or any
other monies of a Loan Party on deposit with the Administrative Agent or any
Lender to the satisfaction of the Obligations. With respect to all
Letters of Credit with respect to which presentment for honor shall not have
occurred at the time of an acceleration pursuant to this paragraph, the Borrower
shall at such
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time
deposit in a cash collateral account opened by the Administrative Agent an
amount in immediately available funds equal to the aggregate
then undrawn and unexpired amount of such Letters of Credit (and the Borrower
hereby grants to the Administrative Agent, for the ratable benefit of the
Secured Parties, a continuing security interest in all amounts at any time on
deposit in such cash collateral account to secure the undrawn and unexpired
amount of such Letters of Credit and all other Obligations). If at
any time the Administrative Agent determines that any funds held in such cash
collateral account are subject to any right or claim of any Person other than
the Administrative Agent and the Secured Parties or that the total amount of
such funds is less than the aggregate undrawn and unexpired amount of
outstanding Letters of Credit, the Borrower shall, forthwith upon demand by the
Administrative Agent, pay to the Administrative Agent, as additional funds to be
deposited and held in such cash collateral account, an amount equal to the
excess of (a) such aggregate undrawn and unexpired amount over (b) the total
amount of funds, if any, then held in such cash collateral account that the
Administrative Agent determines to be free and clear of any such right and
claim. Amounts held in such cash collateral account shall be applied
by the Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
Obligations of the Loan Parties. After all such Letters of Credit
shall have expired or been fully drawn upon, all Reimbursement Obligations shall
have been satisfied and all other Obligations of the Loan Parties shall have
been paid in full, the balance, if any, in such cash collateral account shall be
returned to the Loan Parties (or such other Person as may be lawfully entitled
thereto). Notwithstanding anything to the contrary contained in this
Agreement, in the event the consent of the Lenders (whether the Required
Lenders, the Required Facility Lenders for a particular Facility or otherwise)
is required in connection with the exercise of remedies pursuant to this Section
8, for purposes of determining the required lender consent pursuant to the
applicable definitions thereto (whether the “Required Lenders”, the “Required
Facility Lenders” or otherwise), the Commitments of the Lenders shall be deemed
terminated. Anything in this Section 8 to the contrary
notwithstanding, the Administrative Agent shall, at the request of the Required
Lenders, rescind and annul any acceleration of the Loans and the termination of
the Commitments by written instrument filed with the Borrower. Upon
any such rescission and annulment, the Administrative Agent shall promptly
return to the Borrower any cash collateral delivered pursuant to this
paragraph.
SECTION
9. THE AGENTS; THE ARRANGERS; THE MANAGERS
9.1 Appointment. Each
Lender hereby irrevocably designates and appoints the Agents as the agents of
such Lender under this Agreement and the other Loan Documents, and each such
Lender irrevocably authorizes each Agent, in such capacity, to take such action
on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to such Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Agent shall have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against any Agent.
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9.2 Delegation of
Duties. Each
Agent, with respect to the Initial Lending Institution Provisions, each Initial
Lending Institution or, with respect to Section 7.23 or the Disbursement
Agreement, each Arranger, may execute any of its duties under this Agreement and
the other Loan Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such
duties. Each Lender hereby acknowledges and consents to the
Administrative Agent’s appointment of the Collateral Agent pursuant to and in
accordance with the terms of the Intercreditor Agreement. No Agent,
Initial Lending Institution (with respect to the Initial Lending Institution
Provisions) or Arranger (with respect to Section 7.23 and the Disbursement
Agreement) shall be responsible for the negligence or misconduct of any agents
or attorneys in-fact selected by it with reasonable care.
9.3 Exculpatory
Provisions. No
Arranger, Manager, Agent, Initial Lending Institution (with respect to the
Initial Lending Institution Provisions), Managing Agent nor any of their
respective officers, directors, partners, employees, agents, attorneys and other
advisors, attorneys-in-fact or affiliates shall be (i) liable to any other
Arranger, Manager, Agent, Initial Lending Institution or Managing Agent for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Document (except to the extent
that any of the foregoing are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted solely and proximately from its
or such Person’s own gross negligence or willful misconduct in breach of a duty
owed to the party asserting liability) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made
by any Person or any officer thereof contained in this Agreement or any other
Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Arrangers, the Managers, the
Agents, the Managing Agents or, with respect to the Initial Lending Institution
Provisions, the Initial Lending Institutions under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of any Person party thereto to perform its
obligations hereunder or thereunder. Neither the Agents, the
Managers, the Arrangers, the Managing Agents nor the Initial Lending
Institutions (with respect to the Initial Lending Institution Provisions) shall
be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Person.
9.4 Reliance. Each
Agent, each Initial Lending Institution (with respect to the Initial Lending
Institution Provisions) and each Arranger (with respect to Section 7.23 and the
Disbursement Agreement) shall be entitled to rely, and shall be fully protected
in relying, upon any instrument, writing, resolution, notice, consent,
certificate, affidavit, letter, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation, counsel
to the Loan Parties), independent accountants and other experts selected by such
Agent. The Agents may deem and treat the payee of any Note as the
owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Administrative
Agent. Each Agent, each Initial Lending Institution (with respect to
the Initial Lending Institution Provisions) and each Arranger (with respect to
Section 7.23 and the Disbursement
146
Agreement)
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders or the requisite Lenders required under
Section 10.1 to authorize or require such action (or, if so specified by this
Agreement, all Lenders) as it deems appropriate or it shall first be indemnified
to its satisfaction by the Lenders against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such
action. Each Agent, each Initial Lending Institution (with respect to
the Initial Lending Institution Provisions) and each Arranger (with respect to
Section 7.23 and the Disbursement Agreement) shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Loan Documents in accordance with a request of the Required Lenders or the
requisite Lenders under Section 10.1 to authorize or require such action (or, if
so specified by this Agreement, all Lenders), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders
and all future holders of the Loans and Letters of Credit.
9.5 Notice of
Default. No
Agent shall be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default hereunder unless such Agent has received notice from
a Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a “notice of
default”. In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give notice thereof to the
Lenders. The Administrative Agent shall take such action with respect
to such Default or Event of Default as shall be reasonably directed by the
requisite Lenders (or, if so specified by this Agreement, all Lenders); provided, that unless
and until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the
Lenders.
9.6 Non-Reliance on Agents,
Managers, Arrangers, Managing Agents and Other Lenders. Each
Lender expressly acknowledges that neither the Arrangers, the Agents, the
Managers, the Managing Agents nor any of their respective officers, directors,
employees, agents, attorneys and other advisors, partners, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act by
any Arranger, Agent, Managing Agent or Manager hereinafter taken, including any
review of the affairs of a Loan Party, the Completion Guarantor, Wynn Resorts,
Xxxx Resorts Holdings or any other Person, shall be deemed to constitute any
representation or warranty by any Arranger, Agent, Managing Agent or Manager to
any Lender. Each Lender represents to the Arrangers, the Agents, the
Managing Agents and the Managers that it has, independently and without reliance
upon any Arranger, Agent, Managing Agent or Manager or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
financial and other condition, prospects and creditworthiness of the Loan
Parties and the Completion Guarantor and their affiliates and made its own
decision to make its Loans (and in the case of the Issuing Lender, its Letters
of Credit) hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon any Arranger,
Agent, Managing Agent or Manager or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition, prospects and
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creditworthiness
of the Loan Parties, Wynn Resorts, Xxxx Resorts Holdings and the Completion
Guarantor and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, no Arranger, Agent, Managing Agent or Manager
shall have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of any Loan Party, Wynn
Resorts, Xxxx Resorts Holdings or the Completion Guarantor or any other Person
that may come into the possession of such Arranger, Agent, Managing Agent or
Manager or any of its officers, directors, employees, agents, attorneys and
other advisors, partners, attorneys-in-fact or affiliates.
9.7 Indemnification.
(a) The
Lenders agree to indemnify each Arranger, Agent, Managing Agent and Manager in
its capacity as such (to the extent not reimbursed by the Borrower as may be
required hereunder and without limiting any obligation of the Borrower to do
so), ratably according to their respective Aggregate Exposure Percentages in
effect on the date on which indemnification is sought under this Section 9.7(a)
(or, if indemnification is sought after the date upon which the Commitments
shall have terminated and the Loans shall have been paid in full, ratably in
accordance with such Aggregate Exposure Percentages immediately prior to such
date), from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever that may at any time (including, without limitation, at any time
following the payment of the Loans) be imposed on, incurred by or asserted
against such Arranger, Agent, Managing Agent or Manager in any way relating to
or arising out of, the Commitments, this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by such Arranger, Agent, Managing Agent or Manager under or in connection with
any of the foregoing (including, without limitation, pursuant to the
Disbursement Agreement); provided, that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted solely and proximately
from such Arranger’s, Agent’s, Managing Agent’s or Manager’s gross negligence or
willful misconduct in breach of a duty owed to such Lender. The
agreements in this Section 9.7(a) shall survive the payment of the Loans and
Letters of Credit and all other amounts payable hereunder.
(b) The
Lenders agree to indemnify each Initial Lending Institution in its capacity as
such (to the extent not reimbursed by the Borrower as may be required hereunder
and without limiting any obligation of the Borrower to do so), ratably according
to their respective Aggregate Exposure Percentages in effect on the date on
which indemnification is sought under this Section 9.7(b) (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentages immediately prior to such date), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time (including, without limitation, at any time
following the payment of the Loans) be imposed on, incurred by or asserted
against such Initial Lending Institution in any way relating to or arising out
of any
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action
taken or omitted by such Initial Lending Institution under or in connection with
any Initial Lending Institution Provisions; provided, that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted solely and proximately
from such Initial Lending Institution’s gross negligence or willful
misconduct. The agreements in this Section 9.7(b) shall survive the
payment of the Loans and Letters of Credit and all other amounts payable
hereunder.
9.8 Arrangers, Agents, Managing
Agents and Managers in Their Individual Capacities. Each
Arranger, Agent, Managing Agent and Manager and their respective affiliates may
make loans to, accept deposits from and generally engage in any kind of business
with the Completion Guarantor, any Loan Party, Wynn Resorts or Xxxx Resorts
Holdings as though such Arranger was not an Arranger, such Agent was not an
Agent, such Managing Agent was not a Managing Agent and such Manager was not a
Manager. With respect to any Loans made or renewed by it and with
respect to any Letter of Credit issued or participated in by it, each Arranger,
Agent, Managing Agent and Manager shall have the same rights and powers under
this Agreement and the other Loan Documents as any Lender and may exercise the
same as though it were not an Arranger, an Agent, a Managing Agent or a Manager,
as the case may be, and the terms “Lender” and “Lenders” shall include each
Arranger, Agent, Managing Agent and Manager in their respective individual
capacities.
9.9 Successor
Agents. The
Administrative Agent may resign as Administrative Agent upon 30 days’ notice to
the Lenders and the Borrower. If the Administrative Agent shall
resign as Administrative Agent under this Agreement and the other Loan
Documents, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders, which successor agent shall (unless an Event of
Default under Section 8(a) or Section 8(f) with respect to the Borrower shall
have occurred and be continuing) be subject to approval by the Borrower (which
approval shall not be unreasonably withheld, conditioned or delayed), whereupon
such successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term “Administrative Agent” shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent’s rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans or Letters of Credit. If a successor
Administrative Agent shall not have been so appointed within said 30 day period,
the Administrative Agent shall appoint a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 8(a) or Section
8(f) with respect to the Borrower shall have occurred and be continuing) be
subject to approval by the Borrower (which approval shall not be unreasonably
withheld, conditioned or delayed), whereupon such successor agent shall succeed
to the rights, powers and duties of the Administrative Agent, and the term
“Administrative Agent” shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent’s rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans or Letters of
Credit. If no successor agent has accepted appointment as
Administrative Agent by the date that is 40 days following a retiring
Administrative Agent’s notice of resignation, the retiring Administrative
Agent’s resignation shall nevertheless thereupon become effective, and the
Lenders shall assume and perform all of
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the
duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for
above. After any retiring Administrative Agent’s resignation as the
Administrative Agent, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Administrative Agent under this Agreement and the other Loan
Documents.
9.10 Authorization. The
Administrative Agent is hereby irrevocably authorized by each of the Lenders to
release any Lien (or to direct the Collateral Agent or any other Person to
release any Lien) covering any Property of the Completion Guarantor, Wynn
Resorts Holdings, the Borrower or any of the other Loan Parties or any other
Person that is the subject of a Disposition which is permitted by this Agreement
or any other Loan Document or which has been consented to in accordance with
Section 10.1. The Administrative Agent is further authorized by the
Lenders to enter into agreements supplemental hereto with any Loan Party for the
purpose of curing any formal defect, inconsistency, omission or ambiguity in
this Agreement or any Loan Document to which it is a party (without any consent
or approval by the Lenders).
9.11 The Arrangers, Managers, Managing
Agents, Syndication Agent and Documentation Agents. The
Arrangers (except with respect to Section 7.23 and the Disbursement Agreement),
Managers, the Syndication Agent, the Documentation Agent and the Managing
Agents, each in their capacity as such, shall have no duties or
responsibilities, and shall incur no liability, under this Agreement and the
other Loan Documents.
9.12 Withholdings.
(a) To
the extent required by any applicable law, the Administrative Agent may withhold
from any interest payment to any Lender an amount equivalent to any applicable
withholding tax. If the forms or other documentation required by
Section 2.20(f) are not delivered to the Administrative Agent, then the
Administrative Agent may withhold from any interest payment to any Lender not
providing such forms or other documentation, an amount equivalent to the
applicable withholding tax.
(b) If
the Internal Revenue Service or any authority of the United States or other
jurisdiction asserts a claim that the Administrative Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered, was not properly executed, or because such
Lender failed to notify the Administrative Agent of a change in circumstances
which rendered the exemption from, or reduction of, withholding tax ineffective,
or for any other reason), such Lender shall indemnify the Administrative Agent
fully for all amounts paid, directly or indirectly, by the Administrative Agent
as tax or otherwise, including penalties and interest, together with all
expenses incurred, including legal expenses, allocated staff costs and any out
of pocket expenses.
(c) If
any Lender sells, assigns, grants a participation in, or otherwise transfers its
rights under this Agreement, the purchaser, assignee, participant or transferee,
as applicable, shall comply and be bound by the terms of Sections 2.20(f) and
2.20(g) and this Section 9.12.
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SECTION
10. MISCELLANEOUS
10.1 Amendments and
Waivers.
(a) No
amendment, supplement, modification or waiver of any provision of this Agreement
or any other Loan Document shall in any event be effective unless the same shall
be in writing and signed by the Required Lenders (or, with the written consent
of the Required Lenders, the Administrative Agent) and each Loan Party party
thereto. Notwithstanding the foregoing but subject to the Borrower’s
rights under Section 2.25, no such waiver and no such amendment, supplement
or modification shall (i) forgive the principal amount or extend the final
scheduled date of maturity of any Loan or Reimbursement Obligation, extend the
scheduled date of any amortization payment in respect of any Term Loan, reduce
the stated rate of any interest or fee payable hereunder or forgive the payment
of any interest or fee payable hereunder or extend the scheduled date of any
payment of any interest or fee payable hereunder, in each case without the
consent of each Lender (other than a Defaulting Lender) directly affected
thereby (such consent being in lieu of the consent of the Required Lenders) or
increase the amount or extend the expiration date of any Commitment of any
Lender without the consent of such Lender (such consent being in lieu of the
consent of the Required Lenders); (ii) amend, modify or waive any provision
of this Section 10.1(a) or reduce any percentage or number specified in the
definition of Required Lenders, Required Facility Lenders, Applicable Facility
Lenders, Majority of the Arrangers or Majority Initial Lending Institutions,
consent to the assignment or transfer by any Loan Party, the Completion
Guarantor or Wynn Resorts Holdings of any of its rights and obligations under
this Agreement and the other Loan Documents, release all or substantially all of
the Collateral or release a significant Guarantor from its guarantee obligations
under the Guarantee, in each case without the consent of all Lenders (other than
Defaulting Lenders); (iii) amend, modify or waive any provision of Section 9
without the consent of any Arranger, Agent, Manager, Managing Agent or Initial
Lending Institution directly affected thereby (in addition to the consent of the
Required Lenders); (iv) amend, modify or waive any provision of Section 2.6 or
2.7 without the written consent of the Swing Line Lender (in addition to the
consent of the Required Lenders); (v) amend, modify or waive any provision of
Section 2.12(g) or Section 2.18 without the consent of the Required Facility
Lenders with respect to the Facility directly affected thereby (such consent
being in lieu of the consent of the Required Lenders); (vi) amend, modify or
waive any provision of Section 3 without the consent of the Issuing Lender (in
addition to the consent of the Required Lenders), (vii) amend, modify or waive
any condition, provision or requirement to the funding of Loans (or the release
of the proceeds thereof pursuant to the Disbursement Agreement) or the issuance
or amendment of Letters of Credit without, in each case, the consent of (I) in
the case of Term B Loans, the Required Facility Lenders with respect to the Term
B Loan Facility, (II) in the case of New Term Loans, the Required Facility
Lenders with respect to the New Term Loan Facility and (III) in the case of
Revolving Credit Loans or the issuance or amendment of Letters of Credit, the
Required Facility Lenders with respect to the Revolving Credit Facility (in each
case such consent being in lieu of the consent of the Required Lenders), (viii)
amend, modify or waive any provision of Section 2.4.1 of the Disbursement
Agreement prior to the Amended and Restated Disbursement Agreement Effective
Date without the written consent of all Lenders (other than Defaulting Lenders),
or (ix) amend, modify or waive Section 7.23 without the consent of the Majority
of the Arrangers in consultation with the Construction Consultant (such consent
being in lieu of the consent of the Required Lenders); provided, however, that to the
extent that
151
(A)
determinations, waivers or amendments pursuant to the Initial Lending
Institution Provisions are to be made by the Initial Lending Institutions or (B)
determinations, waivers or amendments pursuant to the Disbursement Agreement are
to be made by the Majority of the Arrangers, such determinations shall be made
at the sole discretion of the Majority Initial Lending Institutions and the
Majority of the Arrangers, respectively, and shall not require the consent of
any other Lender pursuant to this Section 10.1 or otherwise; provided that if
any such determinations, waivers or amendments are not made by the Initial
Lending Institutions or the Majority of the Arrangers, respectively, then any
such determinations, waivers or amendments may be made with the approval of the
Required Lenders. Any such waiver and any such amendment, supplement,
modification or determination shall apply equally to each of the Lenders and
shall be binding upon the Loan Parties, the Lenders, the Agents, the Arrangers,
the Managers, the Managing Agents and all future holders of the Loans and
Letters of Credit. In the case of any waiver, the Loan Parties, the
Lenders, the Arrangers, the Managers, the Managing Agents and the Agents shall
be restored to their former position hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
waived and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent
thereon. Any such waiver, amendment, supplement or modification shall
be effected by a written instrument signed by the parties required to sign
pursuant to the foregoing provisions of this Section 10.1; provided, that
delivery of an executed signature page of any such instrument by facsimile
transmission shall be effective as delivery of a manually executed counterpart
thereof. Notwithstanding the foregoing but subject to determinations
to be made pursuant to (A) if prior to the Amended and Restated Disbursement
Agreement Effective Date, Sections 3.2.10, 5.1.4(b), 8.1 and 9.6 of the
Disbursement Agreement, the definition of “Consents” set forth in the
Disbursement Agreement and Exhibit L to the Disbursement Agreement and (B) if
after the Amended and Restated Disbursement Agreement Effective Date, Sections
5.1(b), 8.1 and 9.6 of the Disbursement Agreement and the definition of
“Consents” set forth in the Disbursement Agreement, and which in each case shall
be made in the sole discretion of the Administrative Agent, to the extent the
Administrative Agent is entitled or required to make any determinations (whether
a consent, waiver or otherwise) under the Intercreditor Agreement or the
Disbursement Agreement, the Administrative Agent shall make such determinations
upon the advice of the Required Lenders.
(b) Notwithstanding
anything to the contrary in this Section 10.1, (i) the parties to the
Administrative Agent Fee Letter and the Facility Fee Letter may, (A) enter into
written amendments, supplements or modifications to the Administrative Agent Fee
Letter or the Facility Fee Letter, as the case may be (including amendments and
restatements thereof), for
the purpose of adding any provisions thereto or changing in any manner the
rights thereunder of the parties thereto or (B) waive, on such terms and
conditions as may be specified in the instrument of waiver, (1) any of the
requirements of the Administrative Agent Fee Letter or the Facility Fee Letter,
as the case may be, or (2) any Default or Event of Default to the extent (and
only to the extent) relating to the Administrative Agent Fee Letter or the
Facility Fee Letter, it being understood that the waiver of any Default or Event
of Default (or portion thereof) relating to any of the other Loan Documents may
be accomplished only as set forth in the immediately preceding paragraph, (ii)
this Agreement and any other Loan Document may be amended, amended and restated,
modified or supplemented with the written consent of the applicable Loan Parties
and the Required Lenders (A) to increase the aggregate Commitments of the
Lenders, (B) to add one or more additional credit facilities of Loans to
this Agreement and to permit the
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extensions
of credit from time to time outstanding thereunder and the accrued interest and
fees in respect thereof to share ratably in the benefits of this Agreement and
other Loan Documents with the other then outstanding Obligations and (C) to
include appropriately the lenders holding such additional credit facilities in
any determination of the Required Lenders, Required Facility Lenders and
Applicable Facility Lenders, and (iii) any Permitted C-Corp.
Conversion shall require the consent of the Required Lenders only.
(c) Notwithstanding
anything to the contrary contained in the Loan Documents and so long as at such
time of such amendment and restatement (A) there exists no Default or Event of
Default, (B) the Phase I Final Completion Date has occurred, (C) there remain no
funds on deposit in the 2014 Notes Proceeds Account and (D) the Borrower has or
has caused the Company’s Payment Account and the Cash Management Account (each
as defined in the Disbursement Agreement) to be terminated, if the Borrower so
requests in a written notice to the Administrative Agent, the Borrower,
Administrative Agent and Disbursement Agent, shall, within 10 Business Days of
the Administrative Agent’s receipt of such notice, amend and restate the
Disbursement Agreement in the form of Exhibit K hereto (with any necessary
changes to reflect amendments, modifications and supplements to the Disbursement
Agreement that are made in accordance with this Agreement between the Amended
and Restated Effective Date and the date of any such amendment and restatement,
the implementation of any such changes to be in form and substance reasonably
satisfactory to the Administrative Agent and the Disbursement Agent), and in
such event the Lenders shall be deemed to have approved such amendment and
restatement to the Disbursement Agreement.
10.2 Notices. All
notices, requests and demands to or upon the respective parties hereto to be
effective shall be in writing (including by telecopy), and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when
delivered, or three Business Days after being deposited in the mail, postage
prepaid, or, in the case of telecopy notice, when received, addressed (a) in the
case of the Borrower, the Arrangers, the Managers and the Agents, as follows and
(b) in the case of the Lenders, as set forth on their respective signature pages
hereto or, in the case of a Lender which becomes a party to this Agreement
pursuant to an Assignment and Acceptance or Joinder Agreement, in such
Assignment and Acceptance or Joinder Agreement or (c) in the case of any party,
to such other address as such party may hereafter notify to the other parties
hereto:
The
Borrower:
|
Xxxx
Las Vegas, LLC
0000
Xxx Xxxxx Xxxxxxxxx, Xxxxx
Xxx
Xxxxx, Xxxxxx 00000
Attention: President
Telecopy: (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
Telecopy: (000)
000-0000
Telephone: (000)
000-0000
|
153
with
a copy to:
|
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
000
X. Xxxxx Xxxxxx
Xxx
Xxxxxxx, XX 00000
Attention:
Xxxxx Xxxxxxx, Esq.
Telecopy: (000)
000-0000
Telephone: (000)
000-0000
|
||
The
Administrative Agent
or
Swing Line Lender:
|
Deutsche
Bank Trust Company Americas
000
Xxxxxxxx Xxxxx
Xxxxx
000
Xxxxxx,
Xxxxx 00000
Attention: Xxxxxx
X. Xxxxxx
Telecopy: (000)
000-0000
Telephone: (000)
000-0000
|
||
Deutsche
Bank Securities Inc., as lead arranger and joint book running
manager:
|
000
Xxxxxxxx Xxxxx
Xxxxx
000
Xxxxxx,
Xxxxx 00000
Attention: Xxxxxx
X. Xxxxxx
Telecopy: (000)
000-0000
Telephone: (000)
000-0000
|
||
Banc
of America Securities LLC, as lead arranger and joint book running
manager:
|
0
Xxxx 00xx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention: Xxxxx
Xxxxxxxx
Telecopy: (000)
000-0000
Telephone: (000)
000-0000
|
||
Bank
of America, N.A., as Syndication Agent
|
0000
Xxxxxxx Xxxxxxxxx
XX
4-706-05-09
Xxxxxxx,
Xxxxxxxxxx 00000-0000
Attention: Xxxx
Xxxxxx
Telecopy: (000)
000-0000
Telephone: (000)
000-0000
|
||
X.X.
Xxxxxx Securities Inc., as arranger and joint book running
manager:
|
000
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention: Xxx
Xxxxxxxx
Telecopy: (000)
000-0000
Telephone: (000)
000-0000
|
||
154
JPMorgan
Chase Bank, N.A., as joint documentation agent:
|
000
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention: Xxx
Xxxxxxxx
Telecopy: (000)
000-0000
Telephone: (000)
000-0000
|
||
SG
Americas Securities, LLC, as arranger and joint book running
manager:
|
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx
Xxx
Telecopy: (000)
000-0000
Telephone: (000)
000-0000
|
||
Societe
Generale, as joint documentation agent:
|
0000
Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Attention: Xxxxxx
Xxx
Telecopy: (000)
000-0000
Telephone: (000)
000-0000
|
||
in
the case of any Agent, Manager or Arranger, with a copy
to:
|
Xxxxxx
& Xxxxxxx LLP
000
Xxxx Xxxxxxxx, Xxxxx 0000
Xxx
Xxxxx, XX 00000
Attention: Xxxxx
Xxxxxxxxxx, Esq.
Telecopy: (000)
000-0000
Telephone: (000)
000-0000
|
||
Issuing
Lender:
|
As
notified by the Issuing Lender to the Administrative Agent and the
Borrower
|
Notwithstanding
the foregoing, each Lender agrees and acknowledges that any notice, request,
demand or other information to be delivered by the Administrative Agent to such
Lender pursuant to this Agreement or any of the other Loan Documents (whether
pursuant to Section 6.1, 6.2 or otherwise) shall be effectively delivered to
such Lender by the Administrative Agent posting such notice, request, demand or
other information to IntraLinks.
10.3 No Waiver; Cumulative
Remedies. No
failure to exercise and no delay in exercising, on the part of any Arranger, any
Agent, any Manager, any Managing Agent or any Lender, any right, remedy, power
or privilege hereunder or under the other Loan Documents shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by
law.
10.4 Survival of Representations
and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder
155
until
repayment of the Loans in full, no Letters of Credit remain outstanding (unless
otherwise cash collateralized pursuant to the terms of this Agreement) and the
termination of the Commitments.
10.5 Payment of
Expenses;
Indemnification. The
Borrower agrees (a) to pay or reimburse the Arrangers, the Agents, the Managers,
the Managing Agents, the Securities Intermediary and, with respect to the
Initial Lending Institution Provisions, the Initial Lending Institutions for all
their reasonable and itemized out-of-pocket costs and expenses incurred in
connection with the syndication of the Facilities (other than fees payable to
syndicate members) and the preparation, negotiation and execution of, and any
amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby (including, without limitation, the Arrangers’ and Initial Lending
Institutions’ administration and other actions in furtherance of Section 7.23,
the Disbursement Agreement and the Initial Lending Institution Provisions, as
the case may be) including, without limitation, the reasonable fees and
disbursements and other charges of the Collateral Agent, the Nevada Collateral
Agent and Xxxxxx & Xxxxxxx LLP, special counsel to the Administrative
Agent and the Disbursement Agent, and any local counsel in the State of Nevada
retained by the Administrative Agent and the charges of IntraLinks and the fees,
expenses and disbursements of the Construction Consultant and the Insurance
Advisor, (b) to pay or reimburse each Lender, Arranger, Manager, Managing
Agent and Agent (after the occurrence of an Event of Default) for all its costs
and expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the fees and disbursements of counsel
(including the allocated fees and disbursements and other charges of in-house
counsel) to each Lender and of counsel to each Arranger, Manager, Managing Agent
and Agent and the charges of IntraLinks, (c) to pay, indemnify, and hold each
Lender, Arranger, Manager, Managing Agent and Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any Loan Party’s delay in paying, stamp, excise and other taxes,
if any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the other Loan
Documents and any such other documents and (d) to pay, indemnify, and hold each
Lender, Arranger, Agent, Manager, Managing Agent, Securities Intermediary, their
respective affiliates, and their respective officers, directors, partners,
trustees, employees, affiliates, advisors, agents, attorneys–in–fact and
controlling persons (each, an “Indemnitee”) harmless
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments or suits, of any kind or nature whatsoever with
respect to or arising out of the execution, delivery, enforcement, performance
and administration of this Agreement, the other Loan Documents and any such
other documents, including, without limitation, any of the foregoing relating to
the use of proceeds of the Loans or Letters of Credit, the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of any Loan Party or any of their Properties or the use by
unauthorized persons of information or other materials sent through electronic,
telecommunications or other information transmission systems that are
intercepted by such persons and the reasonable fees, costs and expenses and
disbursements and other charges of legal counsel in connection with claims,
actions or proceedings by any Indemnitee against the Borrower hereunder (all the
foregoing in
156
this
subsection (d), collectively, the “Indemnified
Liabilities”), provided, that the
Borrower shall have no obligation hereunder to any Indemnitee with respect to
Indemnified Liabilities to the extent such Indemnified Liabilities are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted solely from the gross negligence or willful misconduct of such
Indemnitee in breach of a duty owed to the Borrower. All amounts due
under this Section shall be payable not later than five Business Days after
written demand therefor. Statements payable by the Borrower pursuant
to this Section shall be submitted to the Borrower in accordance with Section
10.2, or to such other Person or address as may be hereafter designated by the
Borrower in a written notice to the Administrative Agent. The
agreements in this Section shall survive repayment of the Loans and Letters of
Credit and all other amounts payable hereunder.
10.6 Successors and Assigns;
Participations and Assignments.
(a) This
Agreement shall be binding upon and inure to the benefit of the Borrower, the
Lenders, the Arrangers, the Agents, the Managers, the Managing Agents, all
future holders of the Loans and Letters of Credit and their respective
successors and assigns, except that the Borrower may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Administrative Agent and each Lender. No Lender may
assign its rights and obligations under this Agreement, except as provided in
this Section 10.6. Any purported sale, assignment, participation or
other transfer by any Lender of any of its rights or obligations hereunder,
other than as expressly permitted under this Section 10.6, shall be null and
void and of no force and effect.
(b) Any
Lender may, without the consent of the Borrower or any other Person, in
accordance with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a “Participant”)
participating interests in any Loan owing to such Lender, any Commitment of such
Lender or any other interest of such Lender hereunder and under the other Loan
Documents. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender’s obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of any such Loan for all purposes under this Agreement
and the other Loan Documents, and the Borrower, the Arrangers, the Agents, the
Managing Agents and the Managers shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this
Agreement and the other Loan Documents. In no event shall any
Participant under any such participation have any right to approve any amendment
or waiver of any provision of any Loan Document, or any consent to any departure
by any Loan Party therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Loans or any fees
payable hereunder, or postpone the date of the final maturity of the Loans, in
each case to the extent subject to such participation. The Borrower
agrees that if amounts outstanding under this Agreement and the Loans are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to have
157
agreed
to share with the Lenders the proceeds thereof as provided in Section 10.7(a) as
fully as if it were a Lender hereunder. The Borrower also agrees that
each Participant shall be entitled to the benefits of Sections 2.19, 2.20 and
2.21 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if it was a Lender; provided, that, in
the case of Section 2.20, such Participant shall have fully complied with the
requirements of Section 2.20 and provided, further, that no
Participant shall be entitled to receive any greater amount pursuant to Section
2.19, 2.20 or 2.21 than the transferor Lender would have been entitled to
receive in respect of the amount of the participation transferred by such
transferor Lender to such Participant had no such transfer
occurred.
(c) Any
Lender (an “Assignor”) may, in
accordance with applicable law and upon written notice to the Administrative
Agent, at any time and from time to time assign to the Borrower (only in
connection with a Permitted Loan Repurchase), any Lender, any Affiliate of the
assigning Lender or of another Lender or any Affiliated Fund of the assigning
Lender or of another Lender (provided, that if any
funding obligations are assigned to such an Affiliate or such an Affiliated
Fund, such Affiliate or Affiliated Fund, as applicable, shall have demonstrable
resources to comply with such obligations) or, with the consent of the Borrower
and the Administrative Agent and, in the case of any assignment of Revolving
Credit 2 Commitments, the written consent of the Issuing Lender and the Swing
Line Lender (which, in the case of the Borrower, the Administrative Agent, the
Issuing Lender and the Swing Line Lender, shall not be unreasonably withheld,
conditioned or delayed), to an additional bank, financial institution or other
entity that is an Eligible Assignee (an “Assignee”) all or any
part of its rights and obligations under this Agreement pursuant to an
assignment and acceptance agreement, substantially in the form of Exhibit E
hereto or such other form as shall be approved by the Administrative Agent (such
approval not to be unreasonably withheld) (an “Assignment and
Acceptance”; provided, that to the extent approved by the Administrative
Agent, an Assignment and Acceptance may be electronically executed and delivered
to the Administrative Agent via an electronic settlement system then acceptable
to the Administrative Agent, which shall initially be the settlement system of
ClearPar, LLC), executed by such Assignee and such Assignor (and, where the
consent of the Borrower, the Administrative Agent or the Issuing Lender or the
Swing Line Lender is required pursuant to the foregoing provisions,
by the Borrower and such other Persons) and delivered to the Administrative
Agent for its acceptance and recording in the Register; provided, that no
such assignment to an Assignee (other than the Borrower (in connection with a
Permitted Loan Repurchase), any Lender or any Affiliate of the assigning Lender
or of another Lender or Affiliated Fund of the assigning Lender or of another
Lender) shall be in an aggregate principal amount of less than $5,000,000 with
respect to Revolving Credit 1 Commitments or Revolving Credit 2 Commitments or
$1,000,000 with respect to Term Loan Commitments or Term Loans, unless otherwise
agreed by the Borrower and the Administrative Agent (provided, that for
purposes of the foregoing limitations only, any two or more funds that
concurrently invest in Loans and are managed by the same investment advisor, or
investment advisors that are Affiliates of one another, shall be treated as a
single Assignee). Any such assignment need not be ratable as among
the Facilities. Upon such execution, delivery, acceptance and
recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Assignee thereunder (unless such Assignee is
the Borrower) shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
with a Commitment and/or Loans as set forth therein and (y) the Assignor
thereunder shall, to the extent provided in such
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Assignment
and Acceptance, be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all of an Assignor’s rights
and obligations under this Agreement, such Assignor shall cease to be a party
hereto). Notwithstanding any provision of this Section 10.6(c), the
consent of the Borrower shall not be required for any assignment that occurs at
any time when any Event of Default shall have occurred and be
continuing. Furthermore, to the extent necessary in order to achieve
the Commitments and Term B Loan Extensions of Credit on the Amended and Restated
Effective Date set forth on Annex B hereto in accordance with Section 5.4(a),
the Lenders under the Original Credit Agreement immediately prior to the Amended
and Restated Effective Date shall be deemed to have assigned their respective
Commitments and Term B Loan Extensions of Credit in existence immediately prior
to the Amended and Restated Effective Date to Lenders party to this Agreement
immediately after satisfaction of Section 5.4(a), and in each case the Borrower
consents to such assignments.
(d) The
Administrative Agent shall, on behalf of the Borrower, maintain at its address
referred to in Section 10.2 a copy of each Assignment and Acceptance delivered
to it and a register (the “Register”) for the
recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Loans owing to, each Lender from time to
time. The entries in the Register shall be conclusive, in the absence
of manifest error, and the Borrower, the Administrative Agent and the Lenders
shall treat each Person whose name is recorded in the Register as the owner of
the Loans and any Notes evidencing such Loans recorded therein for all purposes
of this Agreement. Any assignment of any Loan, whether or not
evidenced by a Note, shall be effective only upon appropriate entries with
respect thereto being made in the Register (and each Note shall expressly so
provide). Any assignment or transfer of all or part of a Loan
evidenced by a Note shall be registered on the Register only upon surrender for
registration of assignment or transfer of the Note evidencing such Loan,
accompanied by a duly executed Assignment and Acceptance; thereupon one or more
new Notes in the same aggregate principal amount shall be issued to the
designated Assignee, and the old Notes shall be returned by the Administrative
Agent to the Borrower marked “canceled”. The Register shall be
available for inspection by the Borrower or any Lender (with respect to any
entry relating to such Lender’s Loans) at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon
its receipt of an Assignment and Acceptance executed by an Assignor and an
Assignee (and, in any case where the consent of any other Person is required by
Section 10.6(c), by each such other Person) together with payment by the
Assignee or the Assignor to the Administrative Agent of a registration and
processing fee of $3,500 (except that no such registration and processing fee
shall be payable in the case of an Assignee which is already a Lender or is an
Affiliate of the assigning Lender or of another Lender or an Affiliated Fund of
the assigning Lender or of another Lender or with respect to the initial
syndication of the Commitments), the Administrative Agent shall (i) promptly
accept such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to the Borrower. On or
prior to such effective date, the Borrower, at its own expense, upon request,
shall execute and deliver to the Administrative Agent (in exchange for the
Revolving Credit 1 Note, Revolving Credit 2 Note, Term B Note and/or New Term
Note, as the case may be, of the assigning Lender) a new Revolving Credit 1
Note, Revolving Credit 2 Note, Term B Note and/or New Term Note, as the case may
be, to such Assignee or its registered assigns in an amount
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equal
to the Revolving Credit 1 Commitment, Revolving Credit 2 Commitment, Term B
Loans and/or New Term Loan or New Term Loan Commitment, as the case may be,
assumed or acquired by it pursuant to such Assignment and Acceptance and, if the
Assignor has retained a Revolving Credit 1 Commitment, a Revolving Credit 2
Commitment, Term B Loans and/or New Term Loans or a New Term Loan Commitment, as
the case may be, upon request, a new Revolving Credit 1 Note, Revolving Credit 2
Note, Term B Note and/or New Term Note, as the case may be, to the Assignor or
its registered assigns in an amount equal to the Revolving Credit 1 Commitment,
Revolving Credit 2 Commitment, Term B Loans and/or New Term Loans or New Term
Loan Commitment, as the case may be, retained by it hereunder. Such
new Note or Notes shall be in the form of the Note or Notes replaced
thereby.
(f) For
the avoidance of doubt, the parties to this Agreement acknowledge that the
provisions of this Section concerning assignments of Loans and Notes relate only
to absolute assignments and that such provisions do not prohibit assignments
creating security interests, including, without limitation, any pledge or
assignment by a Lender of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.
(g) Notwithstanding
anything to the contrary contained herein, the Borrower shall be permitted to
acquire Loans (other than Swing Line Loans) pursuant to a Permitted Loan
Repurchase so long as any Loans so acquired are cancelled and retired
immediately upon the closing of such Permitted Loan Repurchase. For
all purposes under this Agreement, upon the closing of a Permitted Loan
Repurchase, any Loans acquired by the Borrower pursuant to such Permitted Loan
Repurchase (i) shall be deemed not to be outstanding and to have no principal
amount and (ii) shall be deemed to be automatically cancelled and retired
without any further action by the Borrower, the Administrative Agent, the
Lenders or any other Person; provided, however, that the Borrower
shall take such actions and execute such documents and agreements as may be
reasonably requested by the Administrative Agent to further evidence such
cancellation and retirement. Immediately upon the cancellation and
retirement of any Revolving Credit 1 Loans or Revolving Credit 2 Loans acquired
by the Borrower from a Revolving Credit Lender pursuant to a Permitted Loan
Repurchase, the Revolving Credit 1 Commitment or Revolving Credit 2 Commitment
of such Lender (as applicable) shall be reduced by an amount equal to (i) such
Revolving Credit Lender’s Revolving Credit 1 Commitment or Revolving Credit 2
Commitment (as applicable), multiplied by (ii) the quotient obtained by dividing
(A) the principal amount of the Revolving Credit 1 Loans or Revolving Credit 2
Loans so acquired by (B) the aggregate amount of all Revolving 1 Extensions of
Credit or Revolving 2 Extensions of Credit (as applicable) of such Lender
immediately prior to such Permitted Loan Repurchase. For purposes of
clarification, Permitted Loan Repurchases shall not constitute payments (or
prepayments) of Loans for any purpose hereunder.
10.7 Adjustments;
Set-off.
(a) Except
for Permitted Loan Repurchases and except to the extent that this Agreement
provides for payments to be allocated to a particular Lender or to the Lenders
holding particular Loans or under a particular Facility, if any Lender (a “Benefited Lender”)
shall at any time receive any payment of all or part of the Obligations owing to
it, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant
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to
events or proceedings of the nature referred to in Section 8(f), or otherwise),
in a greater proportion than any such payment to or collateral received by any
other Lender, if any, in respect of such other Lender’s Obligations, such
Benefited Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender’s Obligations, or shall
provide such other Lenders with the benefits of any such collateral, as shall be
necessary to cause such Benefited Lender to share the excess payment or benefits
of such collateral ratably with each of the Lenders; provided, however, that if all
or any portion of such excess payment or benefits is thereafter recovered from
such Benefited Lender, such purchase shall be rescinded, and the purchase price
and benefits returned, to the extent of such recovery, but without
interest.
(b) In
addition to any rights and remedies of the Lenders provided by law, upon the
occurrence and during the continuance of an Event of Default each Lender shall
have the right, without prior notice to the Borrower, any such notice being
expressly waived by the Borrower to the extent permitted by applicable law, upon
any amount becoming due and payable by the Borrower hereunder (whether at the
stated maturity, by acceleration or otherwise), to set off and appropriate and
apply against such amount any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or the
account of the Borrower. Each Lender agrees to notify promptly the
Borrower and the Administrative Agent after any such setoff and application made
by such Lender, provided that the
failure to give such notice shall not affect the validity of such setoff and
application.
10.8 Counterparts. This
Agreement may be executed by one or more of the parties to this Agreement on any
number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. Delivery
of an executed signature page of this Agreement by facsimile transmission shall
be effective as delivery of a manually executed counterpart hereof. A
set of the copies of this Agreement signed by all the parties shall be lodged
with the Borrower and the Administrative Agent.
10.9 Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.10 Integration. Other
than the promises, undertakings, representations or warranties set forth in the
Administrative Agent Fee Letter and the Facility Fee Letter, this Agreement and
the other Loan Documents represent the agreement of the Borrower, the Agents,
the Arrangers, the Managers, the Managing Agents and the Lenders with respect to
the subject matter hereof, and there are no promises, undertakings,
representations or warranties by any Arranger, any Manager, any Managing Agent,
any Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
10.11 GOVERNING
LAW. THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT
SHALL BE
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GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF OTHER THAN SECTIONS
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
10.12 Submission To Jurisdiction;
Waivers. The
Borrower hereby irrevocably and unconditionally:
(a) submits
for itself and its Property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District of
New York, and appellate courts from any thereof;
(b) to
the extent permitted by applicable law, consents that any such action or
proceeding may be brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to the Borrower at its address set forth
in Section 10.2 or at such other address of which the Administrative Agent shall
have been notified pursuant thereto;
(d) agrees
that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to xxx in any other
jurisdiction; and
(e) waives,
to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section 10.12 any
special, punitive or consequential damages.
10.13 Certain Matters Affecting
Lenders.
(a) If
(i) the Nevada Gaming Authorities shall determine that any Lender does not meet
suitability standards prescribed under the Nevada Gaming Laws or (ii) any other
gaming authority with jurisdiction over the gaming business of the Borrower
shall determine that any Lender does not meet its suitability standards (in any
such case, a “Former
Lender”), the Administrative Agent shall have the right (but not the
duty) to designate bank(s) or other financial institution(s) (in each case, a
“Substitute
Lender”) that agree to become a Substitute Lender and to assume the
rights and obligations of the Former Lender, subject to receipt by the
Administrative Agent of evidence that such Substitute Lender (if not a Lender or
an Affiliate of a Lender or an Affiliated Fund of a Lender) is an Eligible
Assignee. The Substitute Lender shall assume the rights and
obligations of the Former Lender under this Agreement. The Borrower
shall bear the reasonable costs and expenses of any Lender required by the
Nevada Gaming Authorities, or any other gaming authority with jurisdiction over
the gaming business of the Borrower, to file an application for a finding of
suitability in connection with the investigation of an application by the
Borrower for a license to operate a gaming
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establishment. In
the event a Former Lender is replaced by a Substitute Lender in accordance with
this Section 10.13(a), the Borrower and the Substitute Lender shall pay to the
Former Lender (or the Administrative Agent pursuant to Section 10.6) all amounts
that would have been required to be paid pursuant to Section 2.25 had such
Former Lender been replaced in accordance with such provisions.
(b) Notwithstanding
the provisions of subsection (a) of this Section 10.13, if any Lender becomes a
Former Lender, and if the Administrative Agent fails to find a Substitute Lender
pursuant to subsection (a) of this Section 10.13 within any time period
specified by the appropriate gaming authority for the withdrawal of a Former
Lender (the “Withdrawal Period”),
the Borrower shall immediately prepay in full the outstanding amount of all
Revolving Extensions of Credit, Term B Loan Extensions of Credit and New Term
Loan Extensions of Credit of such Former Lender, together with accrued interest
thereon to the earlier of (x) the date of payment or (y) the last day of the
applicable Withdrawal Period and any other amounts that would have been required
to be paid to such Former Lender pursuant to Section 2.25 had such Former Lender
been replaced in accordance with such provisions.
(c) Upon
the prepayment of all amounts owing to any Lender in accordance with this
Section 10.13, such replaced Lender shall no longer constitute a “Lender” for
purposes hereof; provided, any rights
of such Lender to indemnification hereunder shall survive as to such
Lender.
10.14
Acknowledgments. The
Borrower hereby acknowledges that:
(a) it
has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents;
(b) neither
any Arranger, any Agent, any Manager, any Managing Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower, the Completion Guarantor or
any other Loan Party arising out of or in connection with this Agreement or any
of the other Loan Documents, and the relationship between the Arrangers, the
Agents, the Managers, the Managing Agents and the Lenders, on one hand, and the
Borrower, the Completion Guarantor and any other Loan Party, on the other hand,
in connection herewith or therewith is solely that of debtor and creditor;
and
(c) no
joint venture is created hereby or by the other Loan Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Arrangers,
the Agents, the Managers, the Managing Agents and the Lenders or among the
Borrower, the Completion Guarantor, the other Loan Parties and the
Lenders.
10.15 Confidentiality. Subject
to Section 10.21, each of the Arrangers, the Agents, the Managers, the Managing
Agents and the Lenders agrees to keep confidential all non-public information
provided to it by any Loan Party pursuant to this Agreement; provided, that
nothing herein shall prevent any Arranger, any Agent, any Manager, any Managing
Agent or any Lender from disclosing any such information (a) to any Arranger,
any Agent, any Manager, any Managing Agent, any other Lender or any affiliate of
any thereof, (b) to any Participant or Assignee (each, a “Transferee”) or
prospective Transferee that agrees to comply with the
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provisions
of this Section 10.15, (c) to any of its or its Affiliates’ employees,
directors, agents, auditors, regulators, attorneys, accountants and other
professional advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
information and instructed to keep such information confidential in accordance
with this Section 10.15), (d) to any financial institution that is a direct
or indirect contractual counterparty in swap agreements or such contractual
counterparty’s professional advisor (so long as such contractual counterparty or
professional advisor to such contractual counterparty agrees to be bound by the
provisions of this Section 10.15), (e) upon the request or demand of any
Governmental Authority having jurisdiction over it or any of its affiliates, (f)
in response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (g) if required to do
so in connection with any litigation or similar proceeding, (h) that has been
publicly disclosed other than in breach of this Section 10.15, (i) to the
National Association of Insurance Commissioners or any similar organization or
any nationally recognized rating agency that requires access to information
about a Lender’s investment portfolio in connection with ratings issued with
respect to such Lender or (j) in connection with the exercise of any remedy
hereunder or under any other Loan Document. In the event any
confidential or non-public information is disclosed pursuant to
clauses (e), (f) or (g) above, the applicable Arranger, Agent, Manager,
Managing Agent or Lender, as the case may be, shall give the Borrower notice
thereof.
10.16 Release of Collateral and
Guarantee Obligations. Notwithstanding
anything to the contrary contained herein or in any other Loan Document, upon
request of the Borrower in connection with any Disposition of Property permitted
by the Loan Documents, the Administrative Agent shall (or shall direct the
Collateral Agent or other applicable Person to, in either case, without notice
to or vote or consent of any Lender, or any affiliate of any Lender that is a
party to any Specified Hedge Agreement) take such actions as shall be required
to release its security interest in any Collateral being Disposed of in such
Disposition, and to release any guarantee obligations of any Person being
Disposed of in such Disposition, to the extent necessary to permit consummation
of such Disposition in accordance with the Loan Documents provided that the
Borrower and, if applicable, the appropriate Loan Party shall have delivered to
the Administrative Agent, at least five Business Days prior to the date of the
proposed release (or such shorter period as agreed to by the Administrative
Agent), a written request for release identifying the relevant Collateral being
Disposed of in such Disposition and the terms of such Disposition in reasonable
detail, including the date thereof, the price thereof and any expenses in
connection therewith, together with a certification by the Borrower and, if
applicable, the appropriate Loan Party stating that such transaction is in
compliance with this Agreement and the other Loan Documents and that the
proceeds of such Disposition will be applied in accordance with this Agreement
and the other Loan Documents. In addition, to the extent any such
permitted Disposition includes a Disposition of Real Estate, the definitions,
exhibits and schedules to this Agreement and any other Loan Document (including
the Disbursement Agreement) related to descriptions of Real Estate shall be
deemed amended to the extent necessary to reflect such
Disposition. At such time as the Loans, the Reimbursement Obligations
and the other Obligations (other than obligations under or in respect of Hedge
Agreements) shall have been paid in full in cash, the Commitments have
terminated and no Letters of Credit shall be outstanding which have not been
cash collateralized to the satisfaction of the Issuing Lender, the Collateral
shall be automatically released from the Liens created by the Security Documents
for the benefit of the Secured Parties and the obligations (other than those
expressly stated to
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survive
such termination) of the Administrative Agent, the Collateral Agent and each
Loan Party under the Security Documents, in each case incurred in connection
with the Obligations hereunder, shall automatically terminate, all without
delivery of any instrument or performance of any act by any Person.
10.17 Accounting Terms and
Changes. Financial
statements and other information required to be delivered by the Borrower
pursuant to Section 6.1 shall be prepared in accordance with GAAP as in effect
at the time of such preparation; provided that
calculations in connection with the definitions, covenants and other provisions
of this Agreement shall continue to be calculated and determined on the basis of
such principles in effect on the date hereof and consistent with those used in
the preparation of the most recent audited financial statements delivered
pursuant to Section 4.1, unless otherwise modified pursuant to this Section
10.17. In the event that any “Accounting Change” (as defined below)
shall occur and such change results in a change in the method of calculation of
definitions, covenants and other provisions of this Agreement, then the Borrower
and the Administrative Agent agree to enter into negotiations in order to amend
such provisions of this Agreement so as to equitably reflect such Accounting
Changes with the desired result that the criteria for evaluating the Borrower’s
and the other Loan Parties’ financial condition (including the requirements and
restrictions associated with the provisions of this Agreement applicable
thereto) shall be the same after such Accounting Changes as if such Accounting
Changes had not been made. Until such time as such an amendment shall
have been executed and delivered by the Borrower, the Administrative Agent and
the Required Lenders, all definitions, covenants and other provisions of this
Agreement shall continue to be calculated or construed as if such Accounting
Changes had not occurred. “Accounting Changes” refers to changes in
accounting principles required or permitted by the promulgation of any rule,
regulation, pronouncement or opinion by the Financial Accounting Standards Board
of the American Institute of Certified Public Accountants or, if applicable, the
SEC.
10.18
INTENTIONALLY
OMITTED.
10.19 Construction.
Each
covenant contained herein shall be construed (absent express provision to the
contrary) as being independent of each other covenant contained herein, so that
compliance with any one covenant shall not (absent such an express contrary
provision) be deemed to excuse compliance with any other
covenant. Where any provision herein refers to action to be taken by
any Person, or which such Person is prohibited from taking, such provision shall
be applicable whether such action is taken directly or indirectly by such
Person.
10.20 WAIVERS
OF JURY TRIAL. THE
BORROWER, THE ARRANGERS, THE AGENTS, THE MANAGERS AND THE LENDERS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
10.21 Gaming
Authorities. The
Arrangers, the Agents, the Managers, the Managing Agents and each Lender agree
to cooperate with the Nevada Gaming Authorities in connection with the
administration of their regulatory jurisdiction over Wynn Resorts, the Borrower
and the other Loan Parties, including, without limitation, to the extent not
inconsistent
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with
the internal policies of such Lender, Arranger, Agent, Managing Agent or Manager
and any applicable legal or regulatory restrictions, the provision of such
documents or other information as may be requested by any such Nevada Gaming
Authorities relating to the Arrangers, the Agents, the Managers, the Managing
Agents, any of the Lenders, Wynn Resorts or the Borrower or any other Loan
Party, or the Loan Documents. Notwithstanding any other provision of
this Agreement, the Borrower expressly authorizes, and will cause each other
Loan Party to authorize, each Agent, Manager, Managing Agent, Arranger and
Lender to cooperate with the Nevada Gaming Authorities as described
above.
10.22 Release of Golf Course
Collateral. Upon
the request of the Borrower made at such time as the conditions set forth in
clauses (i) through (iv) of the proviso contained in clause (k) of Section 7.5
are satisfied and so long as not prohibited by the Financing Agreements, the
Administrative Agent shall (or shall direct the Collateral Agent or other
applicable Person to, in either case, without notice to or vote or consent of
any Lender, or any affiliate of any Lender that is a party to any Specified
Hedge Agreement) take such actions as shall be required to release its security
interest in any Golf Course Collateral, and to release any guarantee obligations
of Xxxx Golf. In connection therewith, the Administrative Agent shall
(or shall direct the Collateral Agent or other applicable Person to) execute and
deliver to the applicable Loan Parties such documents and instruments, including
UCC-3 termination statements, deeds of reconveyance and certificates of Capital
Stock, all as may be reasonably requested by the Loan Parties to release the
Liens granted for the benefit of the Secured Parties in the Golf Course
Collateral and to effectuate the release of Xxxx Golf's guarantee of the
Obligations. After the consummation of the actions set forth in this
Section 10.22, Xxxx Golf shall no longer be deemed a “Loan Party” for purposes
of this Agreement or the other Loan Documents. As soon as is
reasonably practicable after the release of the Golf Course Collateral in
accordance with this Section 10.22, the Borrower shall (or shall cause the
applicable Loan Parties to) Dispose of the Golf Course Collateral and/or
distribute the Capital Stock of Xxxx Golf to any Person other than Xxxx Resorts
Holdings or any other Loan Party (unless, in the case of Xxxx Resorts Holdings
or another Loan Party, such Person is acting as an intermediary for purposes of
distributing the Capital Stock of Xxxx Golf as otherwise so
required).
10.23 Binding Effect; Amendment
and Restatement.
(a) This
Agreement shall become effective when it shall have been executed by each of the
parties hereto and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto.
(b) On
the Amended and Restated Effective Date, the Original Credit Agreement shall be
amended and restated in its entirety by this Agreement and the Original Credit
Agreement shall thereafter be of no further force and effect except to evidence
the incurrence by the Borrowers of the “Obligations” under and as defined in the
Original Credit Agreement (whether or not such “Obligations” are contingent as
of the Amended and Restated Effective Date). This Agreement is not in
any way intended to constitute a novation of the obligations and liabilities
existing under the Original Credit Agreement or evidence payment of all or any
portion of such obligations and liabilities.
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(c) Notwithstanding
the foregoing or anything else contained in this Agreement or the other Loan
Documents, to the extent any Default or Event of Default existed under the
Original Credit Agreement (including any Potential Event of Default (as defined
in the Disbursement Agreement) or Disbursement Agreement Event of Default under
the Disbursement Agreement) immediately prior to the Amended and Restated
Effective Date, whether as a result of the representations and warranties made
by the Borrower and the other Loan Parties under the Original Credit Agreement
or the other Loan Documents (including the Disbursement Agreement) prior to the
Amended and Restated Effective Date or any action or omission performed or
required to be performed pursuant to the Original Credit Agreement or the other
Loan Documents (including the Disbursement Agreement) prior to the Amended and
Restated Effective Date (including any failure, prior to the Amended and
Restated Effective Date, to comply with the covenants contained in the Original
Credit Agreement or the other Loan Documents (including the Disbursement
Agreement)), such Defaults and/or Events of Default (including any Potential
Event of Default (as defined in the Disbursement Agreement) or Disbursement
Agreement Event of Default under the Disbursement Agreement) are hereby
permanently waived for all purposes under the Credit Agreement, the Disbursement
Agreement and any other Loan Document (it being understood that the foregoing
shall not relieve the Borrower, the other Loan Parties or such other Persons
from complying with their respective obligations under the Loan Documents from
and after the Amended and Restated Effective Date, including with respect to
matters that were waived pursuant to this clause (c) but otherwise create
Defaults or Events of Defaults under the provisions of the Loan Documents after
the Amended and Restated Effective Date).
(d) On
and after the Amended and Restated Effective Date, (i) all references to the
Original Credit Agreement in the Loan Documents (other than this Agreement)
shall be deemed to refer to the Original Credit Agreement, as amended and
restated hereby, (ii) all references to any section (or subsection) of the
Original Credit Agreement in any Loan Document (but not herein) shall be amended
to become, mutatis
mutandis, references to the corresponding provisions of this Agreement
and (iii) except as the context otherwise provides, on or after the Amended and
Restated Effective Date, all references to this Agreement herein (including for
purposes of indemnification and reimbursement of fees) shall be deemed to be
reference to the Original Credit Agreement as amended and restated
hereby.
This
amendment and restatement is limited as written and is not a consent to any
other amendment, restatement or waiver or other modification, whether or not
similar and, except as expressly provided herein or in any other Loan Document,
all terms and conditions of the Loans Documents remain in full force and effect
unless otherwise specifically amended hereby or by any other Loan
Document.
10.24
Transfer of Golf
Course Land to the Borrower. In
the event Xxxx Golf Disposes of a portion or portions of the Golf Course Land to
the Borrower in accordance with Section 7.5(o), such transferred land shall
thereafter no longer be deemed “Golf Course Land” and, in furtherance thereof,
and subject to the Borrower taking all actions required pursuant to Section 6.10
with respect to such transferred land upon the consummation of such Disposition,
(x) the Golf Course Lease shall be amended to exclude any such transferred land
and (y) each of the Borrower Mortgage and the Xxxx Golf Mortgage shall be
amended to reflect such transfer (subject in the case of the amendments
described in this clause (y) to the Administrative Agent
167
receiving
appropriate endorsements or supplements, or a commitment to issue such
endorsements or supplements, in either case in form and substance reasonably
satisfactory to the Administrative Agent, ensuring the Lenders that such
amendments do not adversely affect the Lenders’ title and extended coverage
insurance contained in the Title Policy in any material respect), in each case
pursuant to documentation in form and substance reasonably satisfactory to the
Administrative Agent. Additionally, Section 7.28 shall not apply to
any such Disposition. The Administrative Agent and/or the Collateral
Agent shall be authorized to execute any documentation necessary or appropriate
to effectuate the foregoing (including, without limitation, amendments to the
Loan Documents to reflect the above described amendments of the Mortgages)
without further consent or action by the Lenders.
10.25 Third Party
Beneficiaries. Subject
to the following sentence, this Agreement is entered into for the benefit of the
parties hereto only and no other party shall be entitled to enforce any
provision hereof or otherwise be a third party beneficiary
hereunder. Notwithstanding the foregoing, the Collateral Agent, the
Disbursement Agent and the Securities Intermediary shall be deemed third party
beneficiaries under Section 9 and 10.5 only and shall be entitled to enforce
such provisions to the extent applicable to such Persons.
10.26 Patriot
Act. The
Borrower shall, following a request by the Administrative Agent or any Lender,
provide all documentation and other information that the Administrative Agent or
such Lender reasonably requests in order to comply with its ongoing obligations
under applicable “know your customer” and anti-money laundering rules and
regulations, including the Patriot Act.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
168
Annex A
PRICING
GRID FOR REVOLVING CREDIT 1 LOANS
AND
REVOLVING 1 COMMITMENT FEES
Consolidated
Leverage Ratio
|
Applicable
Margin
for
Eurodollar Loans
|
Applicable
Margin for Base
Rate Loans |
Revolving
Commitment Fee Rate |
x
> 5.0:1
|
1.75%
|
0.75%
|
0.50%
|
4.5:1
< x <
5.0:1
|
1.625%
|
0.625%
|
0.375%
|
4.0:1
< x <
4.5:1
|
1.50%
|
0.50%
|
0.375%
|
3.5:1
< x <
4.0:1
|
1.25%
|
0.25%
|
0.25%
|
x
<
3.5:1
|
1.00%
|
0.00%
|
0.25%
|
Changes
in the Applicable Margin with respect to Revolving Credit 1 Loans or in the
Revolving 1 Commitment Fee Rate resulting from changes in the Consolidated
Leverage Ratio shall become effective on the first date (each such date, an
“Adjustment
Date”) on which financial statements are delivered to the Lenders
pursuant to Section 6.1 with respect to each Quarterly Date beginning with the
Initial Phase II Calculation Date and in any event not later than the 45th day
after the end of each of the first three quarterly periods of each Fiscal Year
or the 90th day after the end of each Fiscal Year, as the case may be, and shall
remain in effect until the next change to be effected pursuant to this
paragraph. If any financial statements referred to above are not
delivered within the time periods specified above, then, until such financial
statements are delivered, the Consolidated Leverage Ratio as at the end of the
fiscal period that would have been covered thereby shall for the purposes of
this definition be deemed to be greater than 5.0:1. In addition, at
all times while an Event of Default shall have occurred and be continuing, the
Consolidated Leverage Ratio shall for the purposes of this definition be deemed
to be greater than 5.0:1. Each determination of the Consolidated
Leverage Ratio pursuant to this definition shall be made with respect to the
period of four full consecutive fiscal quarters of the Borrower ending at the
end of the period covered by the relevant financial statements and shall be
calculated in accordance with Section 1.3(b) of the Credit
Agreement.
Annex
A