Exhibit 10.3
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CREDIT AGREEMENT
among
BORA BORA, LLC,
as the Borrower,
The Several Lenders
from Time to Time Parties Hereto,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent,
Dated as of May 3, 2004
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TABLE OF CONTENTS
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SECTION 1.
DEFINITIONS............................................................................................2
1.1 Defined
Terms...................................................................................2
1.2 Other
Definitional
Provisions..................................................................21
SECTION 2. AMOUNT AND TERMS OF
COMMITMENTS.......................................................................22
2.1
Availability...................................................................................22
2.2 Procedure
for
Borrowing........................................................................22
2.3 Repayment
of Loans; Evidence of
Indebtedness...................................................23
2.4 Fees,
etc......................................................................................24
2.5 Optional
Prepayments...........................................................................24
2.6 Mandatory
Prepayments..........................................................................25
2.7 Conversion
and Continuation
Option.............................................................25
2.8 Minimum
Amounts and Maximum Number of Eurodollar
Tranches......................................26
2.9 Interest
Rates and Payment
Dates...............................................................26
2.10
Computation of Interest and
Fees...............................................................26
2.11
Inability to Determine Interest
Rate...........................................................27
2.12
Pro Rata Treatment and
Payments................................................................27
2.13
Requirements of
Law............................................................................28
2.14
Taxes..........................................................................................30
2.15
Indemnity......................................................................................32
2.16
Illegality.....................................................................................33
2.17
Change of Lending
Office.......................................................................33
2.18
Accounts.......................................................................................33
SECTION 3. REPRESENTATIONS AND
WARRANTIES........................................................................34
3.1 LLC
Existence; Compliance with
Law.............................................................35
3.2 LLC Power;
Authorization; Enforceable
Obligations..............................................35
3.3 No Legal
Bar...................................................................................35
3.4 No
Material
Litigation.........................................................................35
3.5 No
Default.....................................................................................36
3.6 Ownership
of Property;
Liens...................................................................36
3.7
Taxes..........................................................................................36
3.8 Federal
Regulations............................................................................36
3.9
ERISA..........................................................................................36
3.10
Investment Company Act; Other
Regulations......................................................37
3.11
Use of
Proceeds................................................................................37
3.12
Environmental
Matters..........................................................................37
3.13
Accuracy of Information,
etc...................................................................38
3.14
Security
Documents.............................................................................39
3.15
Regulation
H...................................................................................39
3.16
Insurance......................................................................................39
3.17
Phase II
Land..................................................................................40
SECTION 4. CONDITIONS PRECEDENT THE CLOSING
DATE AND
ADVANCES....................................................40
4.1 Conditions
Precedent to the Closing
Date.......................................................40
4.2 No Waiver
or
Estoppel..........................................................................44
SECTION 5. AFFIRMATIVE
COVENANTS.................................................................................44
5.1
Certificates; Other
Information................................................................44
5.2
Payment of
Obligations.........................................................................45
5.3 Conduct of
Business and Maintenance of Existence,
etc..........................................45
5.4
Maintenance of Property; Leases; Insurance;
Taxes..............................................45
5.5 Inspection
of Property; Books and Records;
Discussions.........................................46
5.6
Notices........................................................................................47
5.7
Environmental Laws;
Permits....................................................................47
5.8 Use of
Proceeds................................................................................49
5.9 Compliance
with Laws, Material Contracts,
Permits..............................................49
5.10
Further
Assurances.............................................................................50
SECTION 6. NEGATIVE
COVENANTS....................................................................................50
6.1 Limitation
on
Indebtedness.....................................................................51
6.2 Limitation
on
Liens............................................................................51
6.3 Limitation
on Fundamental
Changes..............................................................52
6.4 Limitation
on Disposition of
Property..........................................................52
6.5 Limitation
on Optional Payments and Modifications of Governing
Documents.......................53
6.6 Limitation
on Transactions with
Affiliates.....................................................53
6.7 Limitation
on Zoning and Contract Changes and
Compliance.......................................54
6.8 No Joint
Assessment; Separate
Lots.............................................................54
6.9 Final
Plans....................................................................................54
6.10
Limitation on Negative Pledge
Clauses..........................................................54
6.11
Restrictions on Changes to Permits and Material
Contracts......................................54
6.12
Limitations on Restricted
Payments.............................................................55
SECTION 7. EVENTS OF
DEFAULT.....................................................................................56
SECTION 8. THE ADMINISTRATIVE
AGENT..............................................................................60
8.1
Appointment....................................................................................60
8.2 Delegation
of
Duties...........................................................................60
8.3
Exculpatory
Provisions.........................................................................60
8.4 Reliance
by Administrative
Agent...............................................................60
8.5 Notice of
Default..............................................................................61
8.6
Non-Reliance on Administrative Agent, Arranger and Other
Lenders...............................61
8.7
Indemnification................................................................................62
8.8 The
Arranger and the Administrative Agent in Their Individual
Capacities.......................62
8.9 Successor
Agents...............................................................................62
8.10
Authorization to Release
Liens.................................................................63
8.11
The
Arranger...................................................................................63
8.12
Withholdings...................................................................................63
SECTION 9.
MISCELLANEOUS.........................................................................................64
9.1 Amendments
and
Waivers.........................................................................64
9.2
Notices........................................................................................65
9.3 No Waiver;
Cumulative
Remedies.................................................................66
9.4 Survival
of Representations and
Warranties.....................................................66
9.5 Payment of
Expenses;
Indemnification...........................................................66
9.6 Successors
and Assigns; Participations and
Assignments.........................................67
9.7
Adjustments;
Set-off...........................................................................70
9.8
Counterparts...................................................................................70
9.9
Severability...................................................................................70
9.10
Integration....................................................................................70
9.11
GOVERNING
LAW..................................................................................71
9.12
Submission To Jurisdiction;
Waivers............................................................71
9.13
Acknowledgments................................................................................71
9.14
Confidentiality................................................................................72
9.15
Release of
Collateral..........................................................................72
9.16
Construction...................................................................................73
9.17
WAIVERS OF JURY
TRIAL..........................................................................73
9.18
Gaming
Authorities.............................................................................73
9.19
Removal Upon a
Disqualification
Event..........................................................73
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<PAGE>
SCHEDULES:
1
Commitments
5.4(c)
Insurance Requirements
EXHIBITS:
A
Form of
Borrower's Closing Certificate
B-1
Form of Collateral Account Agreement
B-2
Form of Deed of Trust
B-3
Form of Indemnity Agreement
C-1
Description of Phase II Land
C-2
Description of Phase II Additions
D
Form of Assignment and Acceptance
E-1
Form of Notice of Borrowing
E-2
Form of Interest Reserve Disbursement Certificate
F
Form of Note
G
Form of Exemption Certificate
H
Opinions
I
Permitted Encumbrances
<PAGE>
This CREDIT AGREEMENT is dated as of May 3, 2004 and entered
into
among BORA BORA, LLC, a Nevada limited
liability company (the "Borrower"), the
several banks and other financial
institutions or entities from time to time
parties to this Agreement (the "Lenders"),
and DEUTSCHE BANK TRUST COMPANY
AMERICAS, as administrative agent (in such
capacity, the "Administrative
Agent").
RECITALS
--------
WHEREAS, the Borrower owns the Phase II Land and proposes to
improve the Phase II Land with the Phase II
Additions (such defined term and
other defined terms used in these Recitals
shall have the meanings given in
Section 1.1 of this Agreement);
WHEREAS, the Borrower desires to make a distribution through
its
parent company, Bora, LLC, a Nevada limited
liability company ("Bora"), to its
ultimate parent corporation, Wynn Resorts,
Limited, a Nevada corporation
("WRL"), in the amount of $82,624,692 which
will be used to make an equity
contribution to its Affiliate, Wynn Las
Vegas, LLC, a Nevada limited liability
company ("WLV") (the "Equity
Contribution");
WHEREAS, the Borrower desires that the Lenders extend the
senior
secured credit facilities contemplated
hereby to the Borrower to provide the
funds necessary to make the Phase II
Additions and the Equity Contribution;
WHEREAS, subject to the terms and conditions hereof, the
Lenders
are willing to extend such senior secured
credit facilities to the Borrower;
WHEREAS, $17,827,965 of the proceeds of the Loans will be
deposited contemporaneously with the
execution of this Agreement into the
Interest Reserve Account and will be
periodically disbursed by the
Administrative Agent to pay interest due
and owing under this Agreement.
$82,624,692 of the proceeds of the Loans
comprising the Equity Contribution
will be distributed contemporaneously with
the execution of this Agreement to
Bora, and Bora will distribute such
proceeds to WRL. WRL will subsequently
contribute such proceeds to WLV, which will
cause such proceeds to be
deposited into the "Company's Funds
Account" as defined under, and to be
applied in accordance with, the
Disbursement Agreement (as defined in the Wynn
Las Vegas Credit Agreement referred to
herein). The remaining proceeds of the
Loans will be deposited contemporaneously
with the execution of this Agreement
into the Phase II Proceeds Account and will
be disbursed on the Closing Date
to pay closing costs and expenses and
thereafter periodically disbursed by the
Borrower in order to pay costs and expenses
incurred in connection with the
Phase II Additions (including reimbursement
to WRL for costs and expenses
previously incurred relating to the Phase
II Additions and properly documented
to the reasonable satisfaction of the
Administrative Agent). The Interest
Reserve Account and the Phase II Proceeds
Account are owned beneficially by
the Borrower, subject to the terms and
conditions of this Agreement and the
Collateral Account Agreement. The Company's
Funds Account is owned
beneficially by WLV, subject to the terms
and conditions of the Wynn Las Vegas
Credit Agreement and certain other
financing documents executed by WLV.
WHEREAS, the Borrower desires to secure all of its Obligations
by
granting to the Administrative Agent on
behalf of the Lenders Liens on the
Accounts and the Phase II Land and all
improvements and personal property
located thereon, in each case as more fully
described in this Agreement and
the other Loan Documents.
NOW, THEREFORE, in consideration of the premises and the
agreements hereinafter set forth, the
parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed
in
this Section 1.1 shall have the respective
meanings set forth in this
Section 1.1.
"Accounts": the Interest Reserve Account and the Phase II
Proceeds
Account.
"Administrative Agent": as defined in the preamble hereto.
"Affiliate": as applied to any Person, any other Person which,
directly or
indirectly, is in control of, is controlled by, or is under
common control
with, such Person. For purposes of this definition,
"control"
(including, with correlative meanings, the terms "controlling,"
"controlled by"
and "under common control with") as applied to any Person
means the power,
directly or indirectly, either to (a) vote 10% or more
of the
securities having ordinary voting power for the election of
directors (or
persons performing similar functions) of such Person or (b)
direct or cause
the direction of the management and policies of such
Person, whether
by contract or otherwise.
"Affiliate Lease and Easement Agreements": collectively, the
following
agreements:
(a) that certain Parking Facility Lease, dated as of May 3,
2004, between
the Borrower, as lessor, and WLV, as lessee, with respect
to the lease of
a portion of the Phase II Land upon which the parking lot
structure for
use by WLV employees is located;
(b) that certain Driving Range Lease, dated as of May 3, 2004,
between the
Borrower, as lessor, and WLV, as lessee, with respect to the
lease of a
portion of the Phase II Land upon which the driving range for
WLV's golf
course is located;
(c) that certain Office Building Agreement, dated as of May 3,
2004, between
the Borrower, as lessor, and WLV, as lessee, with respect
to the lease of
space in the office building existing on the date hereof
on the Phase II
Land;
(d) that certain Art Gallery Lease, dated as of May 3, 2004,
between the
Borrower, as lessor, and WLV, as lessee, with respect to the
lease of space
for the art gallery existing on the date hereof on the
Phase II Land;
and
(e) that certain Easement Agreement, dated as of October 21,
2002, among Wynn
Resorts Holdings, LLC, Valvino Lamore, LLC and WLV, as
amended by that
certain Amendment to Easement Agreement dated as of May
3, 2004;
in each case, as
amended, modified or otherwise supplemented from time
to time in
accordance with Section 6.11(b) hereof.
"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.
"Aggregate Exposure": with respect to any Lender at any time,
an
amount equal to
the amount of such Lender's Commitment then in effect or,
if the Closing
Date has occurred and the Commitments have expired, the
amount of such
Lender's Extensions of Credit then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at
any
time, the ratio
(expressed as a percentage) of such Lender's Aggregate
Exposure at such
time to the Aggregate Exposure of all Lenders at such
time.
"Agreement": this Credit Agreement, as amended, supplemented,
replaced or
otherwise modified from time to time in accordance with this
Credit
Agreement.
"Applicable Lenders": Non-Defaulting Lenders holding more than
33?% of the
Total Extensions of Credit of Non-Defaulting Lenders
outstanding
under this Agreement.
"Applicable Margin": shall be 5.50% per annum for Eurodollar
Loans
and 4.50% per
annum for Base Rate Loans.
"Appraisal": as defined in Section 4.1(r).
"Arranger": Deutsche Bank Trust Company Americas, in its
capacity
as arranger.
"Asset Sale": any Disposition of Property or series of related
Dispositions of
Property other than (i) the granting of any Lien
permitted by
Section 6.2, (ii) any Disposition permitted by subsections
(a), (b), (c),
(d), (e) or (f) of Section 6.4 (provided, that in the case
of Section
6.4(a), Dispositions of Property thereunder shall be
considered
"Asset Sales" to the extent of any proceeds thereof not
applied to the
replacement of Property pursuant to Section 6.4(a)(ii)).
"Assignee": as defined in Section 9.6(c).
"Assignment and Acceptance": as defined in Section 9.6(c).
"Assignor": as defined in Section 9.6(c).
"Base Rate": for any day, a rate per annum (rounded upwards, if
necessary, to
the next 1/100 of 1%) equal to the greatest of (a) the
Prime Rate in
effect on such day and (b) the Federal Funds Effective Rate
in effect on
such day plus 1/2 of 1%. Any change in the Base Rate due to
a change in the
Prime Rate or the Federal Funds Effective Rate shall be
effective as of
the opening of business on the effective day of such
change in the
Prime Rate or the Federal Funds Effective Rate,
respectively.
"Base Rate Loans": Loans for which the applicable rate of
interest
is based upon
the Base Rate.
"Benefited Lender": as defined in Section 9.7(a).
"Board": the Board of Governors of the Federal Reserve System
of
the United
States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrower's Closing Certificate": a Closing Certificate in the
form of Exhibit
A to this Agreement.
"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
clause (b)
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, and (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.
"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 member 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.
"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) interest-bearing demand
or time deposits
(which may be represented by certificates of deposit)
issued by banks
having general obligations rated (on the date of
acquisition
thereof) at least "A" or the equivalent by S&P or Moody's
or,
if not so rated,
secured at all times, in the manner and to the extent
provided by law,
by collateral security consisting of property of the
type specified
in clause (a) or (b) of this definition, with a market
value of no less
than the amount of monies so invested; (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 the highest rating
obtainable from
Moody's or S&P and in each case maturing within six
months after the
date of acquisition; (f) money market funds or mutual
funds at least
95% of the assets of which constitute Cash Equivalents of
the kinds
described in clauses (a) through (d) of this definition; and
(g) to the
extent not permitted in clauses (a) through (f) of this
definition,
Permitted Securities.
"Change of Control": WRL shall cease to own, directly or
indirectly, 100%
of the outstanding Capital Stock of the Borrower.
"Closing Date": the date on which this Agreement and the other
Loan Documents
are executed and delivered and the conditions precedent
set forth in
Section 4 of this Agreement have been satisfied or waived.
"Code": the Internal Revenue Code of 1986, as amended from time
to
time.
"Collateral": all Property of the Borrower or any other Person,
now owned or
hereafter acquired, upon which a Lien is purported to be
created by any
Security Document.
"Collateral Account Agreement": that certain Collateral Account
Agreement dated
as of the date hereof among the Administrative Agent, the
Borrower and the
Securities Intermediary substantially in the form of
Exhibit B-1.
"Commitment": as to any Lender, the obligation of such Lender,
if
any, to make a
Loan to the Borrower hereunder in a principal amount not
to exceed the
amount set forth under the heading "Commitment" opposite
such Lender's
name on Schedule 1 hereto or in any 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.
"Commonly Controlled Entity": an entity, whether or not
incorporated,
which is under common control with the Borrower 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.
"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.
"Deed of Trust": the Deed of Trust, Assignment of Rents and
Leases, Security
Agreement and Fixture Filing, dated as of May 3, 2004,
made by the
Borrower to the Title Insurance Company for the benefit of
the
Administrative Agent substantially in the form of Exhibit B-2.
"Default": any of the events specified in Section 7, whether or
not any
requirement for the giving of notice, the lapse of time, or
both,
has been
satisfied.
"Defaulting Lender": at any time, (a) any Lender with respect
to
which a Lender Default is in
effect, (b) any Lender that is the subject
(as a debtor) of
any action or proceeding (i) under any existing or
future law of
any jurisdiction, domestic or foreign, relating to
bankruptcy,
insolvency, reorganization or relief of debtors, seeking to
have an order
for relief entered with respect to it, or seeking to
adjudicate it a
bankrupt or insolvent, or seeking reorganization,
arrangement,
adjustment, winding-up, liquidation, dissolution,
composition or
other relief with respect to it or its debts, or (ii)
seeking
appointment of a receiver, trustee, custodian, conservator or
other similar
official for it or for all or any substantial part of its
assets, (c) any
Lender that shall make a general assignment for the
benefit of its
creditors or (d) any Lender that shall generally not, or
shall be unable
to, or shall admit in writing its inability to, pay its
debts as they
become due.
"Disposition": with respect to any Property, any sale, lease,
sale
and leaseback,
assignment, conveyance, grant of restriction, transfer or
other
disposition thereof; and the terms "Dispose" and "Disposed of"
shall have
correlative meanings.
"Disqualification Event": with respect to any Lender or the
Administrative
Agent: (a) the failure of such Person to timely file any
application or
other documents requested of such Person by any Nevada
Gaming Authority
pursuant to the Nevada Gaming Laws in connection with
any licensing or
determination of suitability of that Person as a lender
to the Borrower
or otherwise; (b) the withdrawal by such Person (except
where requested
or permitted by the Nevada Gaming Authorities) of any
such application or
other documents; or (c) the final determination by
the Nevada
Gaming Authorities that such Person is denied any approval or
license, or
otherwise found unsuitable, pursuant to the Nevada Gaming
Laws applicable
to such Person.
"Dollars" and "$": dollars in lawful currency of the United
States
of America.
"Eligible Assignee": (a) (i) a commercial bank organized under
the
laws of the
United States or any state thereof; (ii) a savings and loan
association or
savings bank organized under the laws of the United States
or any state
thereof; (iii) a commercial bank organized under the laws of
any other
country or a political subdivision thereof; provided, that (x)
such bank is
acting through a branch or agency located in the United
States or (y)
such bank is organized under the laws of a country that is
a member of the
Organization for Economic Cooperation and Development or
a political
subdivision of such country; and (iv) any other entity which
is an
"accredited investor" (as defined in Regulation D under the
Securities Act)
which extends credit or buys loans as one of its
businesses
including insurance companies, mutual funds and lease
financing
companies; and (b) for purposes of Section 9.1, any 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 subject to a
Disqualification
Event shall be an Eligible Assignee; provided, further
that so long as
no Event of Default shall have occurred and be
continuing, no
(i) Person that owns or operates a casino located in the
State of Nevada
(or is an Affiliate of such a Person) (provided, that a
passive
investment constituting less than 20% of the Capital Stock of
any
such casino
owner or operator shall not constitute ownership thereof for
the purposes of
this definition) or (ii) Person that owns or operates a
convention,
trade show or exhibition facility in Las Vegas, Nevada or
Clark County,
Nevada (or an Affiliate of such a Person) (provided, that a
passive
investment constituting less than 20% of the Capital Stock of
any
entity owning
such convention or trade show facility shall not constitute
ownership for
the purpose of this definition), shall be an Eligible
Assignee.
"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, safety, 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 and
safety, 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.)
("CAA");
(f) the Emergency Planning and Community Right to Know Act (42
U.S.C. Section 11001 et seq.) ("EPCRA");
(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, 104 Stat.
486);
(i) the Safe Drinking Water Act (42 U.S.C. Sections 300f et
seq.) ("SDWA");
(j) the Surface Mining Control and Reclamation Act of 1974 (30
U.S.C. Sections 1201 et seq.) ("SMCRA");
(k) the Toxic Substances Control Act (15 U.S.C. Section 2601
et seq.) ("TSCA");
(l) the Hazardous Materials Transportation Act (49 U.S.C.
Section 1801 et seq.) ("HMTA");
(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");
(o) the Nevada Hazardous Materials law (NRS Chapter 459);
(p) the Nevada Collection and Disposal of Solid Waste/Sewage
law (NRS Chapter 444);
(q) the Nevada Water Controls/Pollution law (NRS Chapter
445A);
(r) the Nevada Air Pollution law (NRS Chapter 445B);
(s) the Nevada Cleanup of discharged Petroleum law (NRS
590.700 to 590.920, inclusive);
(t) the Nevada Control of Asbestos law (NRS 618.750 to
618.850);
(u) the Nevada Appropriation of Public Waters law (NRS 533.324
to 533.435, inclusive);
(v) the Nevada Artificial Water Body Development Permit law
(NRS 502.390);
(w) the Nevada Environmental Requirements Law (NRS 445C.010 to
NRS 445C.120, inclusive);
(x) the Nevada Occupational Safety and Health Act (NRS 618.005
to 618.900, inclusive);
(y) the Laws Regarding the Authority of Nevada State Fire
Marshall Division (NRS 477.010 to 477.250, inclusive);
(z) the Uniform Fire Code, as now or hereafter adopted in the
State of Nevada;
(aa) the Nevada Protection of Endangered Species, Endangered
Wildlife Permit (NRS 503.585) and Endangered Flora Permit law
(NRS
527.270); and
(bb) and all other Federal, state and local Legal Requirements
which govern Hazardous Substances, and the regulations adopted
and
publications promulgated pursuant to all such foregoing laws.
"Environmental Matter": any:
(a) release, emission, entry or introduction into the air
including, without limitation, the air within buildings and
other
natural or man-made structures above ground;
(b) discharge, release or entry into water including, without
limitation, into any river, watercourse, lake, or pond (whether
natural or artificial or above ground or which joins or flows
into
any such water outlet above ground) or reservoir, or the surface
of
the riverbed or of other land supporting such waters, ground
waters,
sewer or the sea;
(c) deposit, disposal, keeping, treatment, importation,
exportation, production, transportation, handling, processing,
carrying, manufacture, collection, sorting or presence of any
Hazardous Substance (including, without limitation, in the case
of
waste, any substance which constitutes a scrap material or an
effluent or other unwanted surplus substance arising from the
application of any process or activity (including making it
re-usable
or reclaiming substances from it) and any substance or article
which
is required to be disposed of as being broken, worn out,
contaminated
or otherwise spoiled);
(d) nuisance, noise, defective premises, health and safety at
work, industrial illness, industrial injury due to
environmental
factors, environmental health problems (including, without
limitation, asbestosis or any other illness or injury caused by
exposure to asbestos) or genetically modified organisms;
(e) conservation, preservation or protection of the natural or
man made environment or any living organisms supported by the
natural
or man made environment; or
(f) other matter howsoever directly affecting the environment
or any aspect of it.
"Environmental Permits": any and all permits, licenses,
approvals,
registrations,
notifications, exemptions and any other authorization
required under
any Environmental Law.
"Equity
Contribution": as defined in the Recitals.
"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 for which the applicable rate of
interest 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 equal to (a)
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 Loan of the Administrative Agent (in its
capacity as a
Lender) with maturities comparable to the Interest Period
applicable to
such Loan commencing two Business Days thereafter as of
10:00 A.M. (New
York time) on the first day of such Interest Period,
divided (and
rounded upward to the nearest 1/100 of 1%) by (b) a
percentage equal
to 100% minus the Eurocurrency Reserve Requirements.
"Eurodollar Tranche": the collective reference to Eurodollar
Loans
the then current
Interest Periods with respect to all of which begin on
the same date
and end on the same later date (whether or not such Loans
shall originally
have been made on the same day).
"Event of Default": any of the events specified in Section 7,
provided that
any requirement for the giving of notice, the lapse of
time, or both,
has been satisfied.
"Event of Loss": with respect to any property or asset
(tangible
or intangible,
real or personal), any of the following: (a) any loss,
destruction or
damage of such property or asset; (b) any actual
condemnation,
seizure or taking by exercise of the power of eminent
domain or
otherwise of such property or asset, or confiscation of such
property or
asset or the requisition of the use of such property or
asset; or (c)
any settlement in lieu of clause (b) above.
"Extensions of Credit": as to any Lender at any time, an amount
equal to the
aggregate principal amount of all Loans made by such Lender
then
outstanding.
"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.
"Fee Letter": that certain Arranger and Administrative Agent
Fee
Letter, dated as
of the date hereof, between the Arranger, the
Administrative
Agent and the Borrower, as the same may be amended,
modified or
supplemented from time to time.
"Fiscal Year": the fiscal year of the Borrower ending on
December
31 of each
calendar year.
"Funding Office": the office specified from time to time by the
Administrative
Agent as its funding office by notice to the Borrower and
the Lenders.
"GAAP": generally accepted accounting principles in the United
States of
America as in effect from time to time. "Governing Documents":
collectively, as
to any Person, the articles or certificate of
incorporation,
organization or formation and bylaws, any shareholders
agreement,
limited liability company or operating agreement, partnership
agreement or
other formation or constituent documents of such Person.
"Governmental Authority": any national, state or local
government
(whether
domestic or foreign), any political subdivision thereof or any
other
governmental, quasi-governmental, judicial, public or statutory
instrumentality,
authority, body, agency, bureau or entity (including the
Nevada Gaming
Authorities, any zoning authority, the FDIC, the
Comptroller of
the Currency or the Federal Reserve Board, any central
bank or any
comparable authority), any self-regulatory agency (e.g.,
NASD), 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 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,
leases,
dividends 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, (iv) otherwise to
assure or hold
harmless the owner of any such primary obligation against
loss in respect
thereof or (v) under Hedge Agreements; 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.
"Hazardous Materials Activity": any past, current, proposed or
threatened
activity, event or occurrence involving any Hazardous
Substances,
including the use, manufacture, possession, storage, holding,
presence,
existence, location, Release, threatened Release, discharge,
placement,
generation, transportation, processing, construction,
treatment,
abatement, removal, remediation, disposal, disposition or
handling of any
Hazardous Substances, and any corrective action or
response action
with respect to any of the foregoing.
"Hazardous Substances": (statutory acronyms and abbreviations
having the
meaning given them in the definition of "Environmental Laws")
substances
defined as "hazardous substances," "pollutants" or
"contaminants"
in Section 101 of the CERCLA; those substances defined as
"hazardous
waste," "hazardous materials" or "regulated substances" by the
RCRA; those
substances designated as a "hazardous substance" pursuant to
Section 311 of
the CWA; those substances defined as "hazardous materials"
in Section 103
of the HMTA; 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 40 C.F.R. Part 1910, 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 the Borrower 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.
"Indebtedness": of any Person at any date, without duplication,
(a) all
indebtedness of such Person for borrowed money, (b) all
obligations of
such Person for the deferred purchase price of Property or
services (other
than trade payables incurred in the ordinary course of
such Person's
business), (c) all obligations of such Person evidenced by
notes, bonds,
debentures or other similar instruments, (d) all
indebtedness
created or arising under any conditional sale or other title
retention
agreement with respect to Property acquired by such Person
(even though the
rights and remedies of the seller or lender under such
agreement in the
event of default are limited to repossession or sale of
such Property),
(e) all Capital Lease Obligations or Synthetic Lease
Obligations of
such Person, (f) all obligations of such Person,
contingent or
otherwise, as an account party under acceptance, letter of
credit,
completion guaranties, 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, (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, (j) for the purposes of Section 7(e)
only, all
obligations of such Person in respect of Hedge Agreements and
(k) the
liquidation value of any preferred Capital Stock of such Person
or its
Subsidiaries held by any Person other than such Person and its
Wholly Owned
Subsidiaries.
"Indemnified Liabilities": as defined in Section 9.5.
"Indemnitee": as defined in Section 9.5.
"Indemnity Agreement": that certain Indemnity Agreement dated
as
of the date
hereof, executed by the Borrower in favor of the
Administrative
Agent, substantially in the form of Exhibit B-3.
"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 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 the
Phase II Land or any other Collateral (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 the
Phase II Land or
any other Collateral, or any other body exercising
similar
functions.
"Interest Payment Date": (a) as to any Eurodollar Loan, the
last
day of such
Interest Period, and (b) 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 Termination Date, and (c) as to any Loan
(including any
Base Rate Loan), the date of any repayment or prepayment
made in respect
thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially,
the
period
commencing on the borrowing or conversion date, as the case may
be, with respect
to such Loan and ending one month thereafter; and (b)
thereafter, each
period commencing on the last day of the next preceding
Interest Period
applicable to such Loan and ending one month thereafter;
provided, that
all of the foregoing provisions relating to Interest
Periods are
subject to the following:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to
the
next succeeding Business Day unless the result of such
extension
would be to carry such Interest Period into another calendar month
in
which event such Interest Period shall end on the immediately
preceding Business Day;
(ii) any Interest Period that would otherwise extend beyond
the Scheduled Termination Date shall end on the Termination
Date;
(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;
and
(iv) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during
an
Interest Period for such Loan.
"Interest Reserve Account": the account referenced in Section
2.18
and established
pursuant to the Collateral Account Agreement.
"Interest Reserve Disbursement Certificate": a certificate duly
executed by a
Responsible Officer of the Borrower substantially in the
form of Exhibit
E-2 hereto.
"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, or (b) any amount
required to be
paid and/or reimbursed by such Lender to the
Administrative
Agent or any other Lender hereunder or under any other
Loan Document,
in each case at or prior to such time that the same is
required to be
so made, paid or reimbursed by such Lender.
"Lenders": as defined in the preamble hereto.
"Lien": with respect to any Property, any mortgage, lien,
pledge,
charge, security
interest or encumbrance of any kind in respect of such
Property,
whether or not filed, recorded or otherwise perfected under
applicable law
(including any conditional sale or other title retention
agreement, any
lease in the nature thereof, any option or other agreement
to sell or give
a security interest in such Property and any filing of or
agreement to
give any financing statement under the UCC (or equivalent
statues) of any
jurisdiction).
"Loan Documents": this Agreement, the Security Documents, the
Indemnity
Agreement, the Notes and the Fee Letter.
"Loans": as defined in Section 2.1.
"Loss Proceeds": all amounts and proceeds (including
instruments)
in respect of
any Event of Loss, including the proceeds of any insurance
policy required
to be maintained by the Borrower hereunder.
"Material Adverse Effect": one or a combination of conditions
or
changes
affecting, in a material adverse way (a) the assets,
liabilities
or property of
the Borrower, (b) the Phase II Land or the market value
thereof, (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 Affiliated Contracts": any Material Contract to which
the Borrower, on
the one hand, and an Affiliate of the Borrower, on the
other hand, are
parties.
"Material Contract": Any contract or arrangement to which (i)
the
Borrower, on the
one hand, and an Affiliate of the Borrower, on the other
hand, are
parties pursuant to which the Borrower is reasonably expected
to incur
obligations or liabilities with a Dollar value in excess of
$5,000,000
during the term of such contract or arrangement or (ii) the
Borrower is a
party (other than the Loan Documents) for which breach,
nonperformance,
cancellation or failure to renew could reasonably be
expected to have
a Material Adverse Effect (taking into consideration any
viable
replacements or substitutions therefor at the time such
determination is
made).
"Moody's": Moody's Investors Service, Inc., a Delaware
corporation, or
any successor thereof.
"Multiemployer Plan": a Plan that is a multiemployer plan as
defined in
Section 3(37) or 4001(a)(3) of ERISA.
"Net Cash Proceeds": in connection with any Asset Sale, the
proceeds thereof
in the form of cash and Cash Equivalents (including any
such proceeds
received by way of deferred payment of principal pursuant
to a note or
installment receivable or purchase price adjustment
receivable or
otherwise, but only as and when received) of such Asset
Sale, net of
arm's length attorneys' fees, accountants' fees, investment
banking fees,
amounts required to be applied to the repayment of
Indebtedness
secured by a Lien expressly permitted hereunder on any asset
which is the
subject of such Asset Sale (other than any Lien pursuant to
a Security
Document) and other arm's length fees and expenses, in each
case, to the
extent actually incurred in connection with such Asset Sale
and net of 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).
"Nevada Gaming Authorities": collectively, the Nevada Gaming
Commission, the
Nevada State Gaming Control Board, the Clark County
Liquor and
Gaming Licensing Board and any other federal, state or local
and other
governmental, regulatory and administrative agencies, boards
and officials
of, or having jurisdiction over, gaming or gaming
activities or
operations in the State of Nevada.
"Nevada Gaming Laws": the Nevada Gaming Control Act, as
codified
in Chapter 463
of the NRS, as amended from time to time, the regulations
of the Nevada
Gaming Commission promulgated thereunder, as amended from
time to time,
and other regulations promulgated by the Nevada Gaming
Authorities and
applying to gaming, the distribution of gaming devices
and associated
equipment, or gaming operations in the State of Nevada.
"Non-Defaulting Lender": any Lender other than a Defaulting
Lender.
"Non-Excluded Taxes": as defined in Section 2.14(a).
"Non-U.S. Lender": as defined in Section 2.14(f).
"Notes": as defined in Section 2.3(e).
"Notice of Borrowing": a certificate duly executed by a
Responsible
Officer of the Borrower substantially in the form of Exhibit
E-1 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
interest
accruing after the filing of any petition in bankruptcy, or the
commencement of
any insolvency, reorganization or like proceeding,
relating to the Borrower, 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 the Borrower to the Arranger, to
the
Administrative
Agent or to 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 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 the Arranger, to the
Administrative
Agent or to any Lender that are required to be paid by the
Borrower
pursuant hereto or to any other Loan Document) or otherwise.
"Operative Documents": the Loan Documents and the Material
Contracts.
"Participant": as defined in Section 9.6(b).
"Payment Office": the office of the Administrative Agent
specified
in Section 9.2
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 consents, orders, 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).
"Permitted Encumbrances": as defined in Section 4.1(p).
"Permitted Liens": the collective reference to the Liens
permitted
by Section 6.2
(but only of the priority and to the extent of coverage
expressly set
forth in Section 6.2).
"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 and
in any event prior to the Scheduled Termination Date of
the Loans, or
(b) shares of money market, mutual or similar funds which
invest
exclusively in assets satisfying the requirements of clause (a)
of
this
definition.
"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 II Additions": (a) the demolition of the existing Desert
Inn
located on the
Phase II Land, (b) the relocation of office space and (c)
the expansion of
the existing employee parking garage and the construction
of an additional
parking garage, both on the Phase II Land, all as more
particularly
described in Exhibit C-2 to this Agreement.
"Phase II Land": the approximately 20-acre tract of land owned
by
the Borrower, as
more particularly described in Exhibit C-1 to this
Agreement.
"Phase II Proceeds Account" the account referenced in Section
2.18
and established
pursuant to the Collateral Account 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 Commonly Controlled Entity
maintains,
administers, contributes to or is required to contribute to or
under which the
Borrower or any Commonly Controlled Entity could incur any
liability.
"Plans and Specifications": all plans, specifications, design
documents,
schematic drawings and related items for the design,
architecture and
construction of the Phase II Additions which are
consistent with
the standards of Exhibit C-2, in each case, as amended in
accordance with
Section 6.9 of this Agreement.
"Prime Rate": the rate which Deutsche Bank Trust Company
Americas
announces, from
time to time, as its prime lending rate, the Prime Rate to
change when and
as such prime lending rate changes. The Prime Rate is a
reference rate
and does not necessarily represent the lowest or best rate
actually charged
by Deutsche Bank Trust Company Americas to any customer
of Deutsche Bank Trust
Company Americas. The Borrower acknowledges that
Deutsche Bank
Trust Company Americas may, from time to time, make
commercial loans
or other loans at rates of interest at, above or below
the Prime
Rate.
"Proceedings": as defined in Section 5.6(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.
"Register": as defined in Section 9.6(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).
"Reinvestment
Deferred Amount": with respect to any Reinvestment
Event, the
aggregate Net Cash Proceeds received by the Borrower in
connection
therewith that are not applied to prepay the Loans pursuant to
Section 2.6(a)
as a result of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale in respect of which the
Borrower has
delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a
Responsible
Officer of the
Borrower 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 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 business.
"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 business.
"Reinvestment Prepayment Date": with respect to any
Reinvestment
Event, the
earlier of (a) the date occurring six months after such
Reinvestment
Event (or, if the contemplated acquisition of assets in
connection with
the corresponding Reinvestment Notice cannot be completed
within such six
month period but is reasonably expected to be completed
within nine
months after such Reinvestment Event, nine months after such
Reinvestment
Event) and (b) the date on which the Borrower shall have
determined not
to acquire assets useful in its business with all or any
portion of the
relevant Reinvestment Deferred Amount.
"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.
"Reorganization": with respect to any Multiemployer Plan, the
condition that
such plan is in reorganization within the meaning of
Section 4241 of
ERISA.
"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
subsections .27, .28, .29, .30, .31, .32, .34 or .35 of
PBGC Reg.
Section 4043.
"Required Lenders": at any time, Non-Defaulting Lenders holding
more than 50% of
the sum of the Total 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,
in each case
applicable to or binding upon such Person or any of its
Property or to
which such Person or any of its Property is subject.
"Responsible Officer": as to any Person, the chief executive
officer,
president or chief financial officer of such Person, but in any
event, with
respect to financial matters, the chief financial officer of
such Person.
Unless otherwise qualified, all references to a "Responsible
Officer" shall
refer to a Responsible Officer of the Borrower.
"S&P": Standard & Poor's Ratings Group, a New York
corporation, or
any successor
thereof.
"Scheduled Termination Date": December 31, 2005.
"Secured Parties": collectively, the Arranger, the
Administrative
Agent and the
Lenders.
"Securities Intermediary": Deutsche Bank Trust Company Americas,
in
its capacity as
securities intermediary under the Collateral Account
Agreement.
"Security Documents": the collective reference to the Deed of
Trust, the
Collateral Account Agreement and any and all other pledge and
security
documents hereafter delivered to the Administrative Agent
granting a Lien
on any Property (or associated with such a grant) of any
Person to secure
the obligations and liabilities of the Borrower under any
Loan
Document.
"Single Employer Plan": any Plan that is covered by Title IV of
ERISA, but which
is not a Multiemployer Plan.
"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.
"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).
"Taking": a taking or voluntary conveyance during the term of
this
Agreement of all
or part of the Phase II Land or any other Collateral, 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 the Phase II Land or
any other
Collateral or any portion thereof, whether or not the same
shall
have actually
been commenced.
"Termination Date": the earlier of (a) the Scheduled
Termination
Date and (b) the
date on which the Loans become due and payable pursuant
to Section
7.
"Title Insurance Company": collectively, Nevada Title Company
and
such other title
insurance companies that have issued a Title Policy to
the
Administrative Agent on behalf of the Lenders in connection with
or
related to the
Deed of Trust.
"Title Policy": the policy of title insurance issued by the
Title
Insurance
Company with respect to the Deed of Trust.
"Total Commitments": at any time, the aggregate amount of the
Commitments then
in effect; provided, that the maximum amount of the Total
Commitments
shall be $143,400,000.00.
"Total Extensions of Credit": at any time, the aggregate amount
of
the Extensions
of Credit of the Lenders outstanding at such time.
"Transferee": as
defined in Section 9.14.
"Type": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar
Loan.
"UCC": the Uniform Commercial Code, as in effect from time to
time
in any
jurisdiction.
"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.
"Wynn Las Vegas Credit Agreement": that certain Credit
Agreement
dated as of
October 30, 2002, as amended by that certain First Amendment
to Credit
Agreement and Other Loan Documents dated as of May 28, 2003 and
that certain
Second Amendment to Credit Agreement and Limited Waiver dated
as of May 3,
2004 among the Borrower, Deutsche Bank Securities Inc., as
lead arranger
and joint book running manager, Deutsche Bank Trust Company
Americas, as
administrative agent and swing line lender, Banc of America
Securities LLC,
as lead arranger, joint book running manager and
syndication
agent, Bear, Stearns & Co., Inc., as arranger and joint
book
running manager,
Bear Stearns Corporate Lending Inc., as joint
documentation
agent, Dresdner Banking AG, New York and Grand Cayman
Branches, as
arranger and joint documentation agent, and JPMorgan Chase
Bank, as joint
documentation agent, as further amended or supplemented or
amended and
restated from time to time.
"Wynn Las Vegas Credit Agreement Event of Default": an "Event
of
Default" as
defined in the Wynn Las Vegas Credit 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
not defined in Section 1.1 and
accounting terms partly defined in Section
1.1, to the extent not defined,
shall have the respective meanings given to
them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement
shall refer to this Agreement as a
whole and not to any particular provision
of this Agreement, and Section,
Schedule and Exhibit references are to this
Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural
forms of such terms.
(e) The expressions "payment in full," "paid in full" and any
other
similar terms or phrases when used herein
with respect to the Obligations shall
mean the payment in full, in immediately
available funds, of all of the
Obligations.
(f) The words "including" and "includes" and words of similar
import when used in this Agreement shall
not be limiting and shall mean
"including without limitation" or "includes
without limitation", as the case
may be.
(g) The words "will" and "shall" and words of similar import
when
used in this Agreement shall mean a
command.
(h) 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, modified and supplemented from
time to time and in effect at the time
of determination.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Availability. Subject to the terms and conditions hereof,
and
in reliance upon the representations and
warranties of the Borrower herein set
forth, each Lender severally agrees to make
a term loan (the "Loans") to the
Borrower on the Closing Date in an
aggregate principal amount not to exceed the
amount of the Commitment of such Lender.
The Loans made on the Closing Date
shall be Eurodollar Loans and thereafter
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 2.2 and 2.7. Loans borrowed
and subsequently repaid or prepaid may not
be reborrowed.
2.2 Procedure for Borrowing.
(a) Borrower shall request the borrowing of Loans by delivering
to
Administrative Agent a Notice of Borrowing,
appropriately completed, which
specifies:
(i) The aggregate amount of the Loans to be borrowed, which
amount of such
Loans shall not exceed the Total Commitments;
(ii) The proposed date of such borrowing, which shall be the
Closing Date;
and
(iii) In the case of Eurodollar Loans, the length of the
Interest Period
therefor, which shall be one month.
(b) Borrower shall so deliver the Notice of Borrowing to
Administrative Agent so as to provide at
least three Business Days' notice or
such shorter period as the Administrative
Agent may otherwise agree to. The
Notice of Borrowing shall be irrevocable.
Upon receipt of the Notice of
Borrowing from the Borrower, the
Administrative Agent shall promptly notify
each Lender 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 Closing Date in funds
immediately available to the Administrative
Agent. Such borrowing will then,
upon satisfaction or waiver of the
conditions precedent specified in Section 4,
be made available by the Administrative
Agent, in like funds as received by the
Administrative Agent from the Lenders, and
deposited into the appropriate
Accounts and made available to the Borrower
as specified in Section 3.11 and in
such Notice of Borrowing, to be applied by
the Borrower in accordance with
Section 5.8.
(c) The Borrower shall be permitted to make only one borrowing
of
Loans which shall occur on the Closing
Date. Any Commitment remaining after the
making of the Loans on the Closing Date (to
the extent that the borrowing of
Loans on the Closing Date is for an amount
less that the Total Commitments)
shall irrevocably expire without right of
reinstatement after such borrowing.
2.3 Repayment of Loans; Evidence of Indebtedness.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the
appropriate Lender, the then unpaid
principal amount of the Loan of such
Lender, with any remaining unpaid
interest, fees and costs, on the
Termination Date. The Borrower hereby further
agrees to pay interest on the unpaid
principal amount of the Loans from time to
time outstanding from the date hereof until
payment in full thereof at the
rates per annum, and on the dates, set
forth in Section 2.9.
(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
9.6(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
2.3(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; provided, however, that the
failure of any Lender or the Administrative
Agent to maintain the Register or
any such account, or any error therein,
shall not in any manner affect the
obligation of the Borrower to repay (with
applicable interest) the Loans made
to such Borrower by such Lender in
accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the
Borrower will execute and deliver to
such Lender a promissory note of the
Borrower evidencing any Loans of such
Lender, substantially in the form of
Exhibit F hereto, with appropriate
insertions as to date and principal amount
(such notes, respectively, "Notes").
2.4 Fees, etc.
(a) The Borrower agrees to pay to the Arranger the fees in the
amounts and on the dates previously agreed
to in writing by the Borrower and
the Arranger, including, without
limitation, pursuant to the Fee Letter.
(b) 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 Fee Letter.
(c) The Borrower agrees to pay to the Securities Intermediary
the
Securities Intermediary's customary fees
and charges associated with
establishing and maintaining the
Accounts.
2.5 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
the Eurodollar Loans and at least
one Business Day prior thereto in the case
of the Base Rate Loans, which notice
shall 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
2.15; provided, further, that a notice of
prepayment delivered by the Borrower
may state that such notice is conditioned
upon the effectiveness of other
credit facilities, in which case such
notice may be revoked by the Borrower (by
notice to the Administrative Agent on or
prior to the specified effective date)
if such condition is not satisfied and in
the case of any such revocation, the
Borrower shall pay to such Lender such
amounts, if any, as may be required
pursuant to Section 2.15. Upon receipt of
any such notice the Administrative
Agent shall promptly notify each 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 accrued
interest to such date on the amount
prepaid. Partial prepayments of Loans shall
be in an aggregate principal amount
of $5,000,000 or a whole multiple in excess
thereof. Each prepayment of the
Loans under this Section 2.5 shall be
accompanied by accrued interest to the
date of such prepayment to the applicable
Lender on the amount prepaid. The
application of any prepayment pursuant to
Section 2.5 shall be made, first, to
Base Rate Loans and, second, to Eurodollar
Loans.
2.6 Mandatory Prepayments.
(a) With respect to the Net Cash Proceeds from any Asset Sale as
to
which the Borrower has not delivered a
Reinvestment Notice within the period
required therefor such Net Cash Proceeds
(or portion thereof not subject to
such a Reinvestment Notice) shall be
applied, within one Business Day of the
expiration of the aforesaid required period
for delivery of a Reinvestment
Notice with respect to such Asset Sale, on
such date toward the prepayment of
the Loans; provided, that, notwithstanding
the foregoing, (i) the aggregate Net
Cash Proceeds of Asset Sales that may be
excluded from the foregoing prepayment
requirement pursuant to a Reinvestment
Notice shall not exceed $2,000,000 in
any Fiscal Year and (ii) on each
Reinvestment Prepayment Date, an amount equal
to the Reinvestment Prepayment Amount with
respect to the relevant Reinvestment
Event shall be applied toward the
prepayment of the Loans.
(b) No later than the Business Day following the date on which
Loss
Proceeds are received by the Borrower, the
Borrower shall prepay and the
Administrative Agent shall apply such funds
toward the prepayment of the Loans.
Each prepayment of the Loans under this
Section 2.6 shall be accompanied by
accrued interest to the date of such
prepayment to the applicable Lender on the
amount prepaid. The application of any
prepayment pursuant to Section 2.6 shall
be made, first, to Base Rate Loans and,
second, to Eurodollar Loans.
2.7 Conversion and Continuation Option.
(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, provided that any
such conversion of Eurodollar Loans may
only be made on the last day of an
Interest Period with respect thereto. The
Borrower may elect from time to time
to convert Base Rate Loans to Eurodollar
Loans by giving the Administrative
Agent at least three Business Days' prior
irrevocable notice of such election
(which notice shall specify the length of
the initial Interest Period
therefor), provided that no Base Rate Loan
may be converted into a Eurodollar
Loan (i) when any Event of Default has
occurred and is continuing and the
Administrative Agent has or the Required
Lenders have determined or the
Required Lenders have in its or their sole
discretion not to permit such
conversions or (ii) after the date that is
one month prior to the Termination
Date.
(b) Any Eurodollar Loan shall be continued as such upon the
expiration of the then current Interest
Period with respect thereto in
accordance with clause (b) of the term
"Interest Period" set forth in Section
1.1, provided that no Eurodollar Loan may
be continued as such (i) when any
Event of Default has occurred and is
continuing and the Administrative Agent
has or the Required Lenders 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 Termination Date, and provided,
further, that 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 and shall thereafter accrue interest
at the Base Rate plus the
Applicable Margin.
2.8 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 five Eurodollar Tranches
shall be outstanding at any one time.
2.9 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
shall not be paid when due (whether at the
stated maturity, by acceleration or
otherwise) or an Event of Default has
otherwise occurred and is continuing, all
outstanding Loans (whether or not overdue)
shall bear interest at a rate per
annum that is equal to the rate that would
otherwise be applicable thereto
pursuant to the foregoing provisions of
this Section plus 2.0% , and (ii) if
all or a portion of any interest payable on
any Loan or other amount payable
hereunder (in accordance with Section 2.4
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 highest
interest rate then applicable to any Loans
then outstanding plus 2.0%, in each
case, with respect to subsections (i) and
(ii) above, from the date of such
non-payment until such amount is paid in
full (after as well as before
judgment) or so long as such Event of
Default is continuing.
(d) Interest shall be payable in arrears on each Interest
Payment
Date, provided that interest accruing
pursuant to paragraph (b) of this Section
shall be payable from time to time on
demand. Interest shall be paid on each
Interest Payment Date from the portion of
the Loan proceeds on deposit in the
Interest Reserve Account in accordance with
Section 2.18 or in such other
manner as the Borrower may elect (provided
that if Borrower elects to pay in a
manner other than by disbursement of funds
from the Interest Reserve Account
pursuant to Section 2.18 and such interest
payment is not timely received by
the Administrative Agent, the
Administrative Agent shall be entitled to
withdraw amounts from the Interest Reserve
Account to pay the interest due
hereunder as provided in Section 2.18).
2.10 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 on
which the rate of interest is
calculated on the basis of the Prime Rate,
the interest thereon shall be
calculated on the basis of a 365-/366- 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
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 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 2.9(a).
2.11 Inability to Determine Interest Rate. If prior to the
first
day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and
binding upon the Borrower) that, by
reason of circumstances affecting the
relevant market, adequate and reasonable
means do not exist for ascertaining the
Eurodollar Rate for such Interest
Period, or
(b) the Administrative Agent shall have received notice from
the
Applicable Lenders 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
Lenders as soon as practicable thereafter.
If such notice is given (x) any
Loans requested to be made on the first day
of such Interest Period shall be
made as Base Rate Loans, and (y) any
outstanding Eurodollar Loans 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, all Loans shall be
made (or continued) as Base Rate Loans
and shall accrue interest at the Base Rate
plus the Applicable Margin and the
Borrower shall have no right to convert
Loans to Eurodollar Loans.
2.12 Pro Rata Treatment and Payments.
(a) Each borrowing by the Borrower from the Lenders hereunder
shall
be made pro rata according to the
respective Aggregate Exposure Percentages of
the Lenders. Subject to Section 2.12(c),
each payment 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 2.12 shall be made, first, to
Base Rate Loans, and second, to
Eurodollar Loans.
(b) Each payment (including each prepayment) of Loans shall be
allocated among the Lenders holding such
Loans pro rata based on the principal
amount of such Loans held by such Lenders.
Amounts prepaid on account of the
Loans may not be reborrowed.
(c) 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 on a Loan becomes due and payable
on a day other than a Business Day,
the maturity thereof shall be extended to
the next succeeding Business Day
unless the result of such extension would
be to extend such payment into
another calendar month, in which event such
payment shall be made on the
immediately preceding Business Day. In the
case of any extension of any payment
of principal pursuant to the preceding
sentence, interest thereon shall be
payable at the then applicable rate during
such extension.
(d) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing
that such Lender will not make the
amount that would constitute its share of
such borrowing available to the
Administrative Agent, the Administrative
Agent may assume that such Lender is
making such amount available to the
Administrative Agent, and the
Administrative Agent may, in reliance upon
such assumption, make available to
the Borrower a corresponding amount. If
such amount is not made available to
the Administrative Agent by the required
time on the Borrowing Date therefor,
such Lender shall pay to the Administrative
Agent, on demand, such amount with
interest thereon at a rate equal to the
daily average Federal Funds Effective
Rate for the period until such Lender makes
such amount immediately available
to the Administrative Agent. A certificate
of the Administrative Agent
submitted to any Lender with respect to any
amounts owing under this paragraph
shall be conclusive in the absence of
manifest error. If such Lender's share of
such borrowing is not made available to the
Administrative Agent by such Lender
within three Business Days of such
Borrowing Date, the Administrative Agent
shall also be entitled to recover such
amount with interest thereon at the rate
per annum applicable to Base Rate Loans
(the Base Rate plus the Applicable
Margin), on demand, from the Borrower.
(e) 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.
2.13 Requirements of Law.
(a) 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 subject any Lender to any tax of any kind whatsoever
with respect to
this Agreement or any Loan made by it, or change the basis
of taxation of
payments to such Lender in respect thereof (except for
Non-Excluded
Taxes covered by Section 2.14 and changes in the rate of tax
on the overall
net income of such Lender);
(ii) 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
(iii) 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 to reduce any amount receivable
hereunder in respect thereof, then, in any
such case, the Borrower shall
promptly pay such Lender, upon its demand,
any additional amounts necessary to
compensate such Lender on an after-tax
basis for such increased cost or reduced
amount receivable. 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 to
a level below that which such
Lender or such corporation could have
achieved but for such adoption, change or
compliance (taking into consideration such
Lender's or such corporation's
policies with respect to capital adequacy)
by an amount deemed by such Lender
to be material, then from time to time,
after submission by such Lender to the
Borrower (with a copy to the Administrative
Agent) of a written request
therefor (which request shall set forth, in
reasonable detail, the basis and
calculation of the additional amounts
sought), the Borrower shall pay to such
Lender such additional amount or amounts as
set forth in the aforesaid notice;
provided, that the Borrower shall not be
required to compensate a Lender
pursuant to this subsection (b) for any
amounts incurred more than six months
prior to the date on which such Lender
notified the Borrower of such Lender's
intention to claim compensation therefor;
provided, further, that, if the
circumstances giving rise to such claim
have a retroactive effect, then such
six-month period shall be extended to
include the period of such retroactive
effect.
(c) A certificate as
to any additional amounts payable pursuant to
this Section submitted by any Lender to the
Borrower (with a copy to the
Administrative Agent) and setting forth, in
reasonable detail, the basis and
calculation of such amounts shall be
conclusive in the absence of manifest
error. The obligations of the Borrower
pursuant to this Section shall survive
the termination of this Agreement and the
payment of the Loans and all other
amounts payable hereunder.
2.14 Taxes.
(a) All payments made
by the Borrower 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, excluding net
income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the
Arranger, the Administrative Agent
or any Lender as a result of a present or
former connection between such
Arranger, such Administrative Agent, 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 Administrative
Agent'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). If any such
non-excluded taxes, levies, imposts,
duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are
required to be withheld from any
amounts payable to the Arranger, the
Administrative Agent or any Lender
hereunder, the amounts so payable to such
Arranger, such Administrative Agent
or such Lender shall be increased to the
extent necessary to yield to such
Arranger, such Administrative Agent 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 the
Borrower shall not be required to
increase any such amounts payable to the
Arranger, the Administrative Agent or
any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to
such Arranger's, such Administrative
Agent's, or such Lender's failure to
comply with the requirements of subsection
(f) or (g) of this Section 2.14, or
(ii) that are United States withholding
taxes imposed on amounts payable to
such Arranger, such Administrative Agent,
or such Lender at the time such
Arranger, such Administrative Agent, or
such Lender becomes a party to this
Agreement, except to the extent that such
Arranger's, such Administrative
Agent's, or such Lender's assignor (if any)
was entitled, at the time of
assignment, to receive additional amounts
from the Borrower with respect to
such Non-Excluded Taxes pursuant to this
Section 2.14(a). The Borrower 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 the Arranger, the Administrative Agent, or any Lender,
as
applicable, receives a refund of a tax for
which a payment has been made by the
Borrower pursuant to this Section 2.14,
which refund in the good faith judgment
of such Arranger, the Administrative Agent,
or Lender, as the case may be, is
attributable to such payment made by the
Borrower, then such Arranger,
Administrative Agent or Lender, as the case
may be, shall reimburse the
Borrower for such amount as such Arranger,
Administrative Agent or Lender, as
the case may be, determines in good faith
to be the proportion of the refund as
will leave it, after such reimbursement, in
the same position it would have
been in
