Exhibit 10.3
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MASTER DISBURSEMENT AGREEMENT
among
▇▇▇▇ LAS VEGAS, LLC,
as the Company,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as the Bank Agent,
U.S. BANK NATIONAL ASSOCIATION,
as the 2014 Notes Indenture Trustee,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as the Disbursement Agent
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TABLE OF CONTENTS
PAGE
ARTICLE 1. - definitions; rules of interpretation.................................................................6
1.1 Definitions.....................................................................................6
1.2 Rules of Interpretation.........................................................................6
ARTICLE 2. - ACCOUNTS, ADVANCES AND DISBURSEMENTS.................................................................6
2.1 Availability of Advances........................................................................6
2.2 Company Accounts................................................................................6
2.3 Mechanics for Obtaining Advances................................................................6
2.4 Order of Sources of Funding.....................................................................6
2.5 Disbursements...................................................................................6
2.6 Phase I Substantial Completion Date Procedures..................................................6
2.7 Completion Date Procedures......................................................................6
2.8 Completion Guaranty Release Procedures..........................................................6
2.9 Final Completion Procedures.....................................................................6
2.10 No Approval of Work.............................................................................6
2.11 Security........................................................................................6
ARTICLE 3. - CONDITIONS PRECEDENT TO THE CLOSING DATE, Phase II Approval Date AND ADVANCES.......................6
3.1 Conditions Precedent to the Closing Date........................................................6
3.2 Conditions Precedent to Advances to the Phase I Project and, After Phase II Approval
Date, the Phase II Project......................................................................6
3.3 Conditions Precedent to Advances for Phase II Project Prior to Phase II Approval Date...........6
3.4 Conditions Precedent to Phase II Approval Date..................................................6
3.5 No Waiver or Estoppel...........................................................................6
3.6 Waiver of Conditions............................................................................6
3.7 Special Procedures Regarding Reimbursements to Company and its Affiliates.......................6
ARTICLE 4. - REPRESENTATIONS AND WARRANTIES.......................................................................6
4.1 Permits.........................................................................................6
4.2 In Balance Requirement..........................................................................6
4.3 Sufficiency of Interests and Project Documents..................................................6
4.4 Project Budget; Summary Anticipated Cost Report.................................................6
4.5 Project Schedule................................................................................6
4.6 Plans and Specifications........................................................................6
ARTICLE 5. - AFFIRMATIVE COVENANTS................................................................................6
5.1 Use of Proceeds.................................................................................6
5.2 Diligent Construction of the Projects...........................................................6
5.3 Reports; Cooperation............................................................................6
5.4 Notices.........................................................................................6
5.5 Certain Transfers from Company Accounts.........................................................6
5.6 Material Project Documents and Permits..........................................................6
5.7 Storage Requirements for Off-Site Materials and Deposits........................................6
5.8 Plans and Specifications........................................................................6
5.9 Payment and Performance Bonds...................................................................6
5.10 Retainage Amounts...............................................................................6
5.11 Construction Consultant.........................................................................6
5.12 Governmental and Environmental Reports..........................................................6
5.13 Insurance.......................................................................................6
5.14 Application of Insurance and Condemnation Proceeds..............................................6
5.15 Compliance with Material Project Documents......................................................6
5.16 Utility Easement Modifications..................................................................6
5.17 Construction on Site............................................................................6
ARTICLE 6. - NEGATIVE COVENANTS...................................................................................6
6.1 Waiver, Modification, Termination and Amendment of Permits and Contracts........................6
6.2 Scope Changes; Completion; Drawings.............................................................6
6.3 Project Budget and Project Schedule Amendment...................................................6
6.4 Opening.........................................................................................6
6.5 Additional Construction Agreements..............................................................6
6.6 Unincorporated Materials........................................................................6
ARTICLE 7. - EVENTS OF DEFAULT....................................................................................6
7.1 Events of Default...............................................................................6
7.2 Remedies........................................................................................6
ARTICLE 8. - CONSULTANTS AND REPORTS..............................................................................6
8.1 Removal and Fees................................................................................6
8.2 Duties..........................................................................................6
8.3 Acts of Disbursement Agent......................................................................6
ARTICLE 9. - THE DISBURSEMENT AGENT...............................................................................6
9.1 Appointment and Acceptance......................................................................6
9.2 Duties and Liabilities of the Disbursement Agent Generally......................................6
9.3 Particular Duties and Liabilities of the Disbursement Agent.....................................6
9.4 Segregation of Funds and Property Interest......................................................6
9.5 Compensation and Reimbursement of the Disbursement Agent........................................6
9.6 Qualification of the Disbursement Agent.........................................................6
9.7 Resignation and Removal of the Disbursement Agent...............................................6
9.8 Merger or Consolidation of the Disbursement Agent...............................................6
9.9 Statements; Information.........................................................................6
9.10 Limitation of Liability.........................................................................6
ARTICLE 10. - SAFEKEEPING OF ACCOUNTS.............................................................................6
10.1 Application of Funds in Company Accounts........................................................6
10.2 Event of Default................................................................................6
10.3 Liens...........................................................................................6
10.4 Perfection......................................................................................6
ARTICLE 11. - MISCELLANEOUS.......................................................................................6
11.1 Addresses.......................................................................................6
11.2 Delay and Waiver................................................................................6
11.3 Entire Agreement................................................................................6
11.4 Governing Law...................................................................................6
11.5 Severability....................................................................................6
11.6 Headings........................................................................................6
11.7 Limitation on Liability.........................................................................6
11.8 Waiver of Jury Trial............................................................................6
11.9 Consent to Jurisdiction.........................................................................6
11.10 Successors and Assigns..........................................................................6
11.11 Reinstatement...................................................................................6
11.12 No Partnership; Etc.............................................................................6
11.13 Costs and Expenses..............................................................................6
11.14 Counterparts....................................................................................6
11.15 Termination; Removal of 2014 Notes Indenture Trustee and 2014 Noteholders as
Beneficiaries...................................................................................6
11.16 Amendments......................................................................................6
EXHIBITS
Exhibit A Definitions
Exhibit B-1 The Company's Closing Certificate
Exhibit B-2 Construction Consultant's Closing Certificate
Exhibit B-3 Insurance Advisor's Closing Certificate
Exhibit B-4 Company's Insurance Broker's Closing Certificate (▇▇▇▇▇▇)
Exhibit C-1 Form of Advance Request and Certificate
Exhibit C-2 Form of Construction Consultant's Advance Certificate
Exhibit C-3 Form of Phase I Architect's Advance Certificate
Exhibit C-4 Form of Phase I Primary Contractor's Advance Certificate
Exhibit C-5 Form of Phase I Golf Course Designer's Advance Certificate
Exhibit C-6 Form of Phase I Golf Course Contractor's Advance Certificate
Exhibit C-7 Form of Phase I Aqua Theater and Showroom Designer's Advance Certificate
Exhibit C-8 Form of Phase II Major Architect's Advance Certificate
Exhibit C-9 Form of Phase II Major Contractor's Advance Certificate
Exhibit D Notice of Advance Request
Exhibit E Project Budget/Schedule Amendment Certificate
Exhibit F-1 Phase I Project Budget
Exhibit F-2 Phase I Summary Anticipated Cost Report
Exhibit F-3 Phase I Anticipated Cost Report
Exhibit F-4 Phase II Project Budget
Exhibit F-5 Phase II Summary Anticipated Cost Report
Exhibit F-6 Phase II Anticipated Cost Report
Exhibit F-7 Phase I Projected Excess Cash Flow Schedule
Exhibit G-1 Phase I Project Schedule
Exhibit G-2 Phase II Project Schedule
Exhibit H-1 Form of Unconditional Release of Lien Upon Progress Payment
Exhibit H-2 Form of Conditional Release of Lien Upon Progress Payment
Exhibit H-3 Form of Unconditional Release of Lien Upon Final Payment
Exhibit H-4 Form of Conditional Release of Lien Upon Final Payment
Exhibit I Form of Local Company Collateral Account Agreement
Exhibit J-1 Schedule of Permits Phase I Project
Exhibit J-2 Schedule of Permits Phase II Project
Exhibit K-1 ▇▇▇▇ Las Vegas Permitted Encumbrances
Exhibit K-2 ▇▇▇▇ Golf Permitted Encumbrances
Exhibit K-3 Wynn Sunrise Permitted Encumbrances
Exhibit L Insurance Requirements
Exhibit M [Intentionally Omitted]
Exhibit N Opinion List
Exhibit O Form of Payment and Performance Bond
Exhibit P Form of Consent to Assignment
Exhibit Q-1 Description of the Phase I Project
Exhibit Q-2 Description of the Phase II Project
Exhibit Q-3 Description of the Site
Part A Description of the Golf Course Land
Part B Description of the ▇▇▇▇ Sunrise Land
Part C Description of the Phase II Land
Exhibit Q-4 List of Plans and Specifications
Exhibit Q-5 List of Contracts and all other Material Project Documents
Exhibit R-1 Form of Company's Phase II Approval Date Certificate
Exhibit R-2 Form of Company's Phase II Twenty-Five Percent Completion Date Certificate
Exhibit R-3 Form of Construction Consultant's Phase II Twenty-Five Percent Completion Date Certificate
Exhibit R-4 Form of Company's Phase II Fifty Percent Completion Date Certificate
Exhibit R-5 Form of Construction Consultant's Phase II Fifty Percent Completion Date Certificate
Exhibit R-6 Form of Company's Completion Guaranty Release Certificate
Exhibit R-7 Form of Construction Consultant's Completion Guaranty Release Certificate
Exhibit S-1 Form of Company's Opening Date Certificate
Exhibit S-2 Form of Construction Consultant's Opening Date Certificate
Exhibit S-3 Form of Phase I Primary Contractor's Opening Date Certificate
Exhibit S-4 Form of Phase I Architect's Opening Date Certificate
Exhibit S-5 Form of Phase II Primary Contractor's Opening Date Certificate
Exhibit S-6 Form of Phase II Architect's Opening Date Certificate
Exhibit T-1 Form of Company's Completion Certificate
Exhibit T-2 Form of Construction Consultant's Completion Certificate
Exhibit T-3 Form of Phase I Architect's Completion Certificate
Exhibit T-4 Form of Phase I Primary Contractor's Completion Certificate
Exhibit T-5 Form of Phase I Golf Course Designer's Completion Certificate
Exhibit T-6 Form of Phase I Aqua Theater and Showroom Designer's Completion Certificate
Exhibit T-7 Form of Phase I Golf Course Contractor's Completion Certificate
Exhibit T-8 Form of Phase I Parking Structure Contractor's Completion Certificate
Exhibit T-9 Form of Phase II Major Architect's Completion Certificate
Exhibit T-10 Form of Phase II Major Contractor's Completion Certificate
Exhibit U-1 Form of Company's Final Completion Certificate
Exhibit U-2 Form of Construction Consultant's Final Completion Certificate
Exhibit U-3 Form of Phase I Architect's Final Completion Certificate
Exhibit U-4 Form of Phase I Primary Contractor's Final Completion Certificate
Exhibit U-5 Form of Phase II Primary Architect's Final Completion Certificate
Exhibit U-6 Form of Phase II Primary Contractor's Final Completion Certificate
Exhibit V-1 Minimum Phase I Project Requirements
Exhibit V-2 Minimum Phase II Project Requirements
THIS MASTER DISBURSEMENT AGREEMENT (this "Agreement"), dated as of
December 14, 2004, is entered into by and among WYNN LAS VEGAS, LLC, a Nevada
limited liability company (the "Company"), DEUTSCHE BANK TRUST COMPANY
AMERICAS, as the initial Bank Agent, U.S. BANK NATIONAL ASSOCIATION, as the
initial 2014 Notes Indenture Trustee, and DEUTSCHE BANK TRUST COMPANY AMERICAS,
as the initial Disbursement Agent.
RECITALS
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A. The Projects. The Company is in the process of developing and
constructing and proposes to operate the Phase I Project and, at the Company's
option and subject to certain conditions, may develop, construct and operate
the Phase II Project. Prior to the date hereof, the Company has entered into
certain Contracts in respect of the Phase I Project and has incurred and paid
for certain Project Costs.
B. Bank Credit Agreement. Concurrently herewith, the Company, the Bank
Agent, Deutsche Bank Securities Inc., as lead arranger and joint book-running
manager, Bank of America, N.A., as syndication agent, Banc of America
Securities LLC, as lead arranger and joint book-running manager, Bear ▇▇▇▇▇▇▇
Corporate Lending, Inc., as joint documentation agent, Bear, ▇▇▇▇▇▇▇ & Co.
Inc., as arranger and joint book-running manager, JPMorgan Chase Bank, N.A., as
joint documentation agent, ▇.▇. ▇▇▇▇▇▇ Securities Inc., as arranger and joint
book-running manager, Societe Generale, as joint documentation agent, SG
Americas Securities, LLC, as arranger and joint book-running manager, and the
Bank Lenders have entered into the Bank Credit Agreement pursuant to which the
Bank Lenders have agreed, subject to the terms thereof and hereof, to provide
certain revolving loans to the Company in an aggregate principal amount not to
exceed $600,000,000 and certain term loans to the Company in an aggregate
principal amount not to exceed $400,000,000, as more particularly described
therein.
C. 2014 Notes Indenture. Concurrently herewith, the Company, ▇▇▇▇ Las
Vegas Capital Corp. ("Capital Corp."), certain guarantors signatory thereto and
the 2014 Notes Indenture Trustee have entered into the 2014 Notes Indenture
pursuant to which the Company and Capital Corp. will issue the 2014 Notes, as
more particularly described therein. The Bank Lenders and the 2014 Noteholders
will share first priority Liens on the Project Security (subject to certain
exceptions).
D. Purpose. The parties are entering into this Agreement in order to
set forth, among other things, (a) the mechanics for and allocation of the
Company's requests for Advances under the various Facilities and from the
Company's Funds Account, and (b) the conditions precedent to the Closing Date,
to the initial Advance and to subsequent Advances.
AGREEMENT
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NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1.
- DEFINITIONS; RULES OF INTERPRETATION
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1.1 DEFINITIONS. Except as otherwise expressly provided herein,
capitalized terms used in this Agreement and its exhibits shall have the
meanings given in Exhibit A hereto.
1.2 RULES OF INTERPRETATION. Except as otherwise expressly provided
herein, the rules of interpretation set forth in Exhibit A hereto shall apply
to this Agreement.
ARTICLE 2.
- ACCOUNTS, ADVANCES AND DISBURSEMENTS
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2.1 AVAILABILITY OF ADVANCES. Subject to the satisfaction of all
conditions precedent listed in Article 3 and the other terms and provisions of
this Agreement, Advances under the Facilities and from the Company's Funds
Account shall be made during the Availability Period. Advances shall be made no
more frequently than once in any calendar month (unless approved by the
Disbursement Agent, such approval not to be given more than once per calendar
quarter); provided that the advances and transfers of funds contemplated in
Sections 2.5.3, 2.8 and 2.9 shall be disregarded for purposes of this sentence.
2.2 COMPANY ACCOUNTS.
2.2.1 Company's Funds Account. On or prior to the Closing Date, the
Company's Funds Account shall be established at Deutsche Bank Trust Company
Americas, as the Securities Intermediary. There shall be deposited into the
Company's Funds Account (a) the amounts required pursuant to Sections 5.5.1 and
5.5.2, (b) all funds received by the Company relating to the Phase I Project
prior to the Phase I Final Completion Date (i) consisting of liquidated or
other damages under the Construction Agreements, (ii) under the Construction
Guaranty, (iii) under any Payment and Performance Bond, or (iv) consisting of
any amounts related to construction of the Phase I Project or to any other
Construction Agreement, (c) all funds received by the Company relating to the
Phase II Project prior to the Phase II Final Completion Date (i) consisting of
liquidated or other damages under the Construction Agreements, (ii) under any
Construction Guaranty, (iii) under any Payment and Performance Bond, or (iv)
consisting of any amounts related to construction of the Phase II Project or to
any other Construction Agreement, (d) prior to the Phase I Substantial
Completion Date, all Loss Proceeds in respect of the Phase I Project required
to be deposited into the Company's Funds Account pursuant to Section 5.14, (e)
prior to the Phase II Completion Date, all Loss Proceeds in respect of the
Phase II Project required to be deposited into the Company's Funds Account
pursuant to Section 5.14, (f) investment income from Permitted Investments on
amounts on deposit in the Disbursement Account pursuant to the last sentence of
Section 2.2.3, (g) at the Company's option, any additional equity contributions
made to the Company prior to the Last Project Final Completion Date and (h)
investment income from Permitted Investments in the Company's Payment Account,
the Completion Guaranty Deposit Account and the Project Liquidity Reserve
Account required to be transferred to the Company's Funds Account as provided
in this Agreement. From and after the Phase II Approval Date, amounts may be
transferred from the "Funding Accounts" as defined in the Bank Credit
Agreement) to the Company's Funds Account pursuant to Section 5.1.4. Subject to
the provisions of Section 10.2 and the Company Collateral Account Agreements,
amounts on deposit in the Company's Funds Account shall from time to time, be
transferred by the Disbursement Agent to the Disbursement Account for
application in accordance with the provisions of this Agreement or applied to
prepay the Obligations in accordance with Section 5.14. The Disbursement Agent
shall cause investment income from Permitted Investments on amounts on deposit
in the Company's Funds Account to be deposited at all times therein until
applied as provided in this Agreement.
2.2.2 2014 Notes Proceeds Account. On or prior to the Closing
Date, the 2014 Notes Proceeds Account shall be established at Deutsche Bank
Trust Company Americas, as the Securities Intermediary. There shall be
deposited into the 2014 Notes Proceeds Account (a) the 2014 Notes Proceeds and
(b) investment income from Permitted Investments on amounts on deposit in the
Disbursement Account pursuant to the last sentence of Section 2.2.3. Subject to
the provisions of Section 10.2 and the Company Collateral Account Agreements,
amounts on deposit in the 2014 Notes Proceeds Account shall, from time to time,
be transferred by the Disbursement Agent to the Disbursement Account for
application in accordance with the provisions of this Agreement. The
Disbursement Agent shall cause investment income from Permitted Investments on
amounts on deposit in the 2014 Notes Proceeds Account to be deposited at all
times therein until applied as provided in this Agreement.
2.2.3 Disbursement Account. On or prior to the Closing Date, the
Disbursement Account shall be established at Deutsche Bank Trust Company
Americas, as the Securities Intermediary. There shall be deposited in the
Disbursement Account (a) all funds from time to time advanced by the Bank
Lenders under the Bank Credit Facility pursuant to Section 2.5(a) of the Bank
Credit Agreement, (b) all funds transferred from the Bank Proceeds Account
(other than amounts withdrawn from the Bank Proceeds Account pursuant to
Section 2.5.3), the Company's Funds Account and the 2014 Notes Proceeds Account
pursuant to the provisions of this Agreement, and (c) all funds transferred
from the Completion Guaranty Deposit Account or Project Liquidity Reserve
Account pursuant to Section 5.5.3. Subject to the provisions of Section 10.2
and the Company Collateral Account Agreements, amounts on deposit in the
Disbursement Account shall, from time to time, be transferred by the
Disbursement Agent to the Cash Management Account, the Bank Proceeds Account,
the 2014 Notes Proceeds Account, the Company's Payment Account and/or applied
by the Disbursement Agent to pay Project Costs, in each case, in accordance
with Section 2.5. The deposit of funds into the Disbursement Account shall not
create, vest in, or give the Company any rights to such funds, and the Company
shall have no right to draw, obtain the release or otherwise use such funds
until (x) the requirements of Section 2.3 have been satisfied and (y) the
conditions set forth in Sections 3.1, 3.2 or 3.3, as applicable, have been
satisfied or waived in accordance with the terms hereof. If any funds deposited
in the Disbursement Account are, for any reason, not withdrawn therefrom on or
before the next Banking Day after the day on which they were deposited, such
funds shall, on the Second Banking Day after the day on which they were
deposited, be transferred by the Disbursement Agent (A) in the case of funds
advanced by the Bank Lenders or transferred from the Bank Proceeds Account, to
the Bank Proceeds Account, (B) in the case of funds transferred from the
Company's Funds Account, to the Company's Funds Account, and (C) in the case of
funds transferred from the 2014 Notes Proceeds Account, to the 2014 Notes
Proceeds Account. The Disbursement Agent shall cause investment income from
Permitted Investments on amounts on deposit in the Disbursement Account to be
transferred to (1) the Bank Proceeds Account, to the extent attributable to
funds advanced by the Bank Lenders or transferred from the Bank Proceeds
Account, (2) the Company's Funds Account, to the extent attributable to funds
transferred from the Company's Funds Account, and (3) the 2014 Notes Proceeds
Account, to the extent attributable to funds transferred from the 2014 Notes
Proceeds Account, in each case at the same time as the corresponding funds
giving rise to the investment income are transferred to the respective
accounts.
2.2.4 Cash Management Account. On or prior to the Closing Date,
the Company shall establish a local deposit account (the "Cash Management
Account") in Las Vegas, Nevada with a bank (i) that is reasonably acceptable to
the Disbursement Agent and (ii) that enters into a control agreement
substantially in the form of Exhibit I hereto or otherwise satisfactory to the
Disbursement Agent. On or prior to the Closing Date, the Company shall deposit
or cause to be deposited not less than $6,900,000 in the Cash Management
Account. Subject to the provisions of Section 10.2 and the Company Collateral
Account Agreements, the Company shall be permitted from time to time to draw
checks on and otherwise withdraw amounts on deposit in the Cash Management
Account to pay Project Costs then due and payable. The Company shall be
permitted from time to time to replace amounts drawn from, and/or to increase
the funds on deposit in, the Cash Management Account (i) from Advances, by
including a request to such effect in Advance Requests and satisfying the
conditions precedent set forth in Sections 3.2 or 3.3, as applicable (unless
such conditions precedent are waived in accordance with the terms hereof) or
(ii) by requesting a transfer of funds previously deposited in the Bank
Proceeds Account and satisfying the conditions precedent set forth in Section
2.5.3 (unless such conditions precedent are waived in accordance with the terms
hereof). Any deposit of funds into the Cash Management Account which would
cause the balance thereof to exceed $20,000,000 shall be subject to the
Disbursement Agent's approval, which approval shall be given if the
Disbursement Agent, in consultation with the Construction Consultant, is
reasonably satisfied that such amounts are necessary to pay Project Costs
anticipated to become due and payable through the end of the ensuing calendar
month; provided, however, that amounts intended to cover Company payroll that
have been transferred from the Bank Proceeds Account to the Cash Management
Account pursuant to Section 2.5.3 shall be excluded for purposes of determining
whether the foregoing thresholds have been exceeded. The Company shall cause
investment income from Permitted Investments on amounts on deposit in the Cash
Management Account to be deposited therein until applied to the payment of
Project Costs as described above.
2.2.5 Bank Proceeds Account. On or prior to the Closing Date, the
Bank Proceeds Account shall be established at Deutsche Bank Trust Company
Americas, as the Securities Intermediary. There shall be deposited in the Bank
Proceeds Account (a) all amounts deposited by the Bank Lenders in the
Disbursement Account (or transferred to the Disbursement Account from the Bank
Proceeds Account) which are not withdrawn therefrom on or before the next
Banking Day after the day on which they were deposited, (b) amounts intended to
cover Company payroll in accordance with Section 2.5.3, (c) "Term Loans" funded
from time to time by the Bank Lenders pursuant to Section 2.5(c) of the Bank
Credit Agreement; and (d) investment income from Permitted Investments on
amounts on deposit in the Disbursement Account pursuant to the last sentence of
Section 2.2.3. Subject to the provisions of Section 10.2 and the Company
Collateral Account Agreements, amounts on deposit in the Bank Proceeds Account
shall from time to time be transferred by the Disbursement Agent for
application in accordance with the provisions of this Agreement. Upon receipt
of a written request from the Company on or within one (1) Banking Day after
the Phase II Revolving Commitment Sunset Date (if the Phase II Approval Date
shall have not occurred), the Disbursement Agent shall release any proceeds of
"Term Loans" funded under Section 2.5(c) of the Bank Credit Agreement then on
deposit in the Bank Proceeds Account to the Bank Agent for application to the
repayment of "Term Loans" pursuant to Section 2.12(e) of the Bank Credit
Agreement. The Disbursement Agent shall cause investment income from Permitted
Investments in amounts on deposit in the Bank Proceeds Account to be deposited
at all times therein until applied as provided in this Agreement.
2.2.6 Company's Payment Account. On or prior to the Closing Date,
the Company shall establish a local deposit account (the "Company's Payment
Account") in Las Vegas, Nevada with a bank (i) that is reasonably acceptable to
the Disbursement Agent and (ii) that enters into a control agreement
substantially in the form of Exhibit I hereto or otherwise satisfactory to the
Disbursement Agent. Subject to the provisions of Section 10.2 and the Company
Collateral Account Agreements, on each Advance Date, the Disbursement Agent
shall transfer from the Disbursement Account to the Company's Payment Account
the amounts provided in clause (c) of Section 2.5.1. Subject to the provisions
of Section 10.2 and the Company Collateral Account Agreements, the Company
shall be permitted from time to time to draw checks on and otherwise withdraw
amounts on deposit in the Company's Payment Account to pay Project Costs in the
amounts and to the Contractors and/or Subcontractors listed in the most recent
Advance Request (other than the Primary Contractors and any other Contractor or
Subcontractor to whom the Disbursement Agent wired funds pursuant to Section
2.5.1(b)); provided, that the amount paid during any calendar month to any one
Contractor or Subcontractor from funds in the Company Payment Account shall not
exceed $7,000,000. The Company shall cause investment income from Permitted
Investments on amounts on deposit in the Company's Payment Account to be
transferred to and deposited in the Company's Funds Account within two (2)
Banking Days following the end of each calendar month.
2.2.7 Completion Guaranty Deposit Account. On or prior to the
Closing Date, the Completion Guaranty Deposit Account shall be established at
Deutsche Bank Trust Company Americas, as the Securities Intermediary. On the
Closing Date, the Company shall cause $50,000,000 to be on deposit in the
Completion Guaranty Deposit Account. There shall also be deposited into the
Completion Guaranty Deposit Account all amounts described in Section 5.1.3.
Subject to the provisions of Section 10.2 and the Completion Guaranty
Collateral Account Agreement, amounts on deposit in the Completion Guaranty
Deposit Account shall, from time to time, be (a) transferred or applied by the
Disbursement Agent to the Company's Funds Account or the Disbursement Account,
as the case may be, for application as provided in accordance with Sections
5.5.1 or 5.5.3, as applicable or (b) applied to prepayment of the Obligations
in accordance with Section 5.14. The Disbursement Agent shall cause investment
income from Permitted Investments on amounts on deposit in the Completion
Guaranty Deposit Account to be transferred to and deposited in the Company's
Funds Account within two (2) Banking Days after realization of such investment
income and deposit of such income into the Completion Guaranty Deposit Account,
which transfer shall be deemed to be a dividend by the Completion Guarantor to
the Company. The Disbursement Agent shall release all amounts remaining on
deposit in the Completion Guaranty Deposit Account, other than the Reserved
Amounts, to the Company on the Completion Guaranty Release Date, which released
amounts shall be deemed to be a dividend by the Completion Guarantor to the
Company. The Disbursement Agent shall release all amounts remaining on deposit
in the Completion Guaranty Deposit Account to the Company on the Last Project
Final Completion Date. 2.2.8 Project Liquidity Reserve Account. On or prior to
the Closing Date, the Project Liquidity Reserve Account shall be established at
Deutsche Bank Trust Company Americas, as the Securities Intermediary. On or
prior to the Closing Date, the Company shall cause $30,000,000 to be on deposit
in the Project Liquidity Reserve Account. Subject to the provisions of Section
10.2 and the Company Collateral Account Agreements, amounts on deposit in the
Project Liquidity Reserve Account shall, from time to time, be (a) transferred
by the Disbursement Agent to the Disbursement Account for application in
accordance with Section 5.5.3 or (b) applied by the Disbursement Agent to
prepayment of the Obligations in accordance with Section 5.14. Upon receipt of
a written request from the Company pursuant to Section 7.27(b) of the Bank
Credit Agreement, the Disbursement Agent shall withdraw the amounts requested
by the Company from the Project Liquidity Reserve Account and apply such
amounts to pay Debt Service relating to the Bank Credit Facility or the 2014
Notes (pro rata according to such amounts then due and owing) in accordance
with the Company's written request. After the Phase I Final Completion Date,
upon receipt of a written request from the Company pursuant to Section 2.12(f)
of the Bank Credit Agreement, the Disbursement Agent shall release all amounts
remaining on deposit in the Project Liquidity Reserve Account to the Bank Agent
for application to the repayment of "Revolving Credit Loans" under the Bank
Credit Agreement (such amounts to be applied in accordance with Section 2.12(f)
of the Bank Credit Agreement and without reduction of any commitments
thereunder). Prior to the Phase I Substantial Completion Date, the Disbursement
Agent shall cause investment income from Permitted Investments on amounts on
deposit in the Project Liquidity Reserve Account to be transferred to and
deposited in the Company's Funds Account within two (2) Banking Days after
realization of such investment income and deposit of such income into the
Project Liquidity Reserve Account. From and after the Phase I Substantial
Completion Date, the Disbursement Agent shall cause investment income from
Permitted Investments on amounts on deposit in the Project Liquidity Reserve
Account to be deposited at all times therein until applied by the Bank Agent as
described above.
2.3 MECHANICS FOR OBTAINING ADVANCES.
2.3.1 Advance Requests.
(a) Other than as provided in Section 3.7, the Company shall
have the right, from time to time, to deliver to the Disbursement Agent and the
Construction Consultant an Advance Request containing all exhibits, attachments
and certificates (other than the Construction Consultant's Advance
Certificate), all appropriately completed and duly executed, requesting that an
Advance be made on or after the tenth (10th) Banking Day after delivery of such
Advance Request (or, solely with respect to the December 2004 Advance Request,
on or after the fifth (5th) Banking Day after delivery of such Advance
Request). Except with respect to Advances under Section 3.3, Advance Requests
with respect to the Phase II Project may only be submitted after the Phase II
Approval Date.
(b) For each Advance with respect to Project Costs allocated
to the Phase I Project in the Phase I Project Budget, the Company's Advance
Request shall include the Phase I Required Contractor and Architect Advance
Certificates (in each case, to the extent that such Advance Request requests
that payment be made to such Person or to any Contractor or Subcontractor
implementing the work designed by such Person).
(c) For each Advance with respect to Project Costs allocated
to the Phase II Project in the Phase II Project Budget from and after the Phase
II Approval Date, the Company's Advance Request shall include the Phase II
Major Contractors' Advance Certificate(s) and the Phase II Major Architects'
Advance Certificate(s) (in each case, to the extent that such Advance Request
requests that payment be made to such Person or to any Contractor or
Subcontractor implementing the work designed by such Person).
(d) Each Advance Request shall request Advances in order to
(i) until the Phase I Opening Date, pay interest and fees under the Bank Credit
Agreement and the 2014 Notes which are scheduled to become due and payable on
or after the requested Advance Date and prior to the next succeeding Advance
Date, (ii) pay other Project Costs specifically allocated to either the Phase I
Project or (subject to Section 3.3) the Phase II Project in the applicable
Project Budget and estimated to become due and payable on or prior to the
requested Advance Date, (iii) issue a Letter of Credit under the Bank Credit
Facility and/or (iv) replenish funds, or increase funds on deposit, in the Cash
Management Account. If the Company fails to set forth the information described
in clause (i) above in any Advance Request or fails to timely deliver any
Advance Request, then the Bank Agent and/or the 2014 Notes Indenture Trustee
may deliver such information and a request for payment of interest and fees to
the Disbursement Agent, upon which request the Disbursement Agent shall, if
applicable, revise the Advance Request and related Notice of Advance Request to
provide for such payment. From and after the Phase I Opening Date, the Company
shall only be permitted to obtain Advances hereunder for the purpose of paying
Debt Service accruing with respect to Advances made under the Bank Credit
Agreement or from the 2014 Notes Proceeds Account to pay Project Costs
allocated to the Phase II Project under the Phase II Project Budget. Each such
Advance Request shall request Advances from the various Funding Sources
consistent with the requirements of Section 2.4 and shall include an estimated
use of proceeds for the requested Advance broken down for each Project by
Contractor and Line Item and shall certify as to the matters set forth therein.
Promptly after delivery of each Advance Request, the Disbursement Agent shall,
and shall instruct the Construction Consultant to, review such Advance Request
and attachments thereto to determine whether all required documentation has
been provided, and shall use commercially reasonable efforts to notify the
Company of any deficiency within three (3) Banking Days after delivery thereof
by the Company, it being acknowledged that any failure to notify the Company of
any deficiency in the Advance Request so delivered within the aforesaid time
period shall in no event be deemed an approval thereof. The Disbursement Agent
shall also instruct the Construction Consultant to promptly review the work
referenced in such Advance Request, including work estimated to be completed
through the applicable Advance Date, as such work is being performed.
(e) Concurrently with the delivery by the Company of each
Advance Request, the Company shall deliver to the Funding Agents and the
Disbursement Agent a Notice of Advance Request substantially in the form of
Exhibit D, appropriately completed and duly executed by a Responsible Officer
of the Company. Each Funding Agent shall, as soon as practicable (but no later
than two (2) Banking Days) after receiving each Notice of Advance Request,
deliver a notice confirming such receipt to the Disbursement Agent and, in the
case of the Bank Agent, confirming that the Company's calculation of interest
and fees scheduled to become due and payable under its Facility on and after
the requested Advance Date and through the scheduled next succeeding Advance
Date is accurate (or, if not accurate, shall provide the appropriate revisions
to the Disbursement Agent).
(f) Within three (3) Banking Days prior to the requested
Advance Date, the Construction Consultant shall deliver directly to the
Disbursement Agent (with a copy to the Company) its certificate with respect to
such Advance Request, in the form of Exhibit C-2 either approving or
disapproving the Advance Request (the "Construction Consultant's Advance
Certificate"); provided that if the Construction Consultant disapproves one or
more particular payments or disbursements to any Contractor or Subcontractor
requested by the Advance Request, but the Advance Request otherwise complies
with the requirements hereof, then the Advance Request shall be deemed approved
with respect to all payments and disbursements requested therein other than the
particular payments or disbursements so disapproved. If the Construction
Consultant disapproves the Advance Request or any one or more particular
payments requested therein, the Disbursement Agent shall instruct the
Construction Consultant to provide the Company, in reasonable detail, its
reason(s) for such disapproval.
(g) Promptly after receipt of a request therefor, the
Disbursement Agent shall deliver copies of any Advance Request to the Funding
Agents.
2.3.2 Funding Notices from Disbursement Agent.
(a) (i) Promptly after delivery of each Advance Request and
related Notice of Advance Request by the Company pursuant to Section 2.3.1, the
Disbursement Agent shall review the same in order to reconcile the information
set forth in the Advance Request with the information set forth in the related
Notice of Advance Request and determine whether all required documentation has
been provided and whether all applicable conditions precedent pursuant to this
Agreement have been satisfied. In particular, and without limiting the
generality of the foregoing, the Disbursement Agent shall verify, to the extent
set forth herein, based on information provided to it by the Funding Agents,
the Company and the Construction Consultant, (A) the Company's calculation of
Available Funds, including Anticipated Earnings, set forth in the Advance
Request, (B) that the Projects are In Balance, (C) that the allocation of the
requested Advance among the various funding sources complies with the
provisions of Section 2.4 and (D) that the Company's calculation of interest
and fees scheduled to become due and payable under the Bank Credit Agreement
and the 2014 Notes, in each case, from and after the requested Advance Date and
prior to the immediately succeeding Advance Date, is accurate. Subject to the
other subsections of this Section 2.3, at such time as the Disbursement Agent
has received the Construction Consultant's Advance Certificate and otherwise
determines that the applicable conditions precedent set forth in Article 3 with
respect to a requested Advance have been satisfied, but no less than three (3)
Banking Days prior to the requested Advance Date, the Disbursement Agent shall
countersign the Notice of Advance Request and deliver the same to the Company
and each Funding Agent (or otherwise electronically notify the Company and each
Funding Agent that the applicable conditions precedent set forth in Article 3
with respect to a requested Advance have been satisfied) (such delivery or
notification, an "Advance Confirmation Notice").
(ii) In the event that the Construction Consultant
approves only a portion of the payments or disbursements requested by the
Advance Request (as contemplated by Section 2.3.1(f)) or, if based on the
Disbursement Agent's review of the Advance Request and accompanying Notice of
Advance Request, the Disbursement Agent finds any errors or inaccuracies in the
Advance Request or the Notice of Advance Request (including any inaccuracy in
the allocations made pursuant to Section 2.4 hereof), but the Advance Request
and Notice of Advance Request otherwise conform to the requirements of this
Agreement, the Disbursement Agent shall (A) notify the Company thereof, (B)
revise (to the extent it is able to do so and with the Company's consent, which
may be provided electronically) or request that the Company revise such
certificates to remove the request for the disapproved payment and/or rectify
any errors or inaccuracies, (C) deliver or request that the Company execute and
deliver to the Funding Agents the revised Notice of Advance Request and (D)
approve the requested Advance and issue the Advance Confirmation Notice after
making the required revisions (or receiving from the Company the revised
certificates) on the basis of the certificates as so revised. In the event that
the Disbursement Agent revises the Advance Request and Notice of Advance
Request so as to increase the amount to be advanced under the Bank Credit
Facility, the amount of such increase shall constitute the same type of Loans
as requested in such Advance Request (unless otherwise prohibited under the
Bank Credit Agreement). In the event that the Disbursement Agent revises the
Advance Request and Notice of Advance Request so as to decrease the amount to
be advanced under the Bank Credit Facility, the amount of such decrease shall
(unless otherwise requested by the Company and permitted under the Bank Credit
Agreement) first reduce the amount of "Base Rate Loans" requested under such
Facility and then reduce the amount of "Eurodollar Loans" requested under such
Facility. All references to a particular requested Advance, Advance Request or
Notice of Advance Request in the ensuing provisions of this Article 2 shall, to
the extent the context so requires, refer to the same as revised or modified
pursuant to this clause (ii).
(b) In the event that the Disbursement Agent (i) on or prior
to the requested Advance Date determines that the conditions precedent to an
Advance have not been satisfied or (ii) prior to the requested Advance Date
receives notice from any Funding Agent that a Potential Event of Default or an
Event of Default has occurred and is continuing, then the Disbursement Agent
shall notify the Company and each Funding Agent thereof as soon as reasonably
possible but in no event later than one (1) Banking Day after such
determination or receipt, as the case may be (a "Stop Funding Notice"). The
Stop Funding Notice shall specify, in reasonable detail, the conditions
precedent which the Disbursement Agent has determined have not been satisfied
and/or shall attach a copy of any notice of default received by the
Disbursement Agent. Upon such written notice from the Disbursement Agent, and
subject to the provisions of Section 3.5, (i) no Bank Lender shall have any
obligation to advance its portion of the requested Advance, if any, (ii) the
Disbursement Agent shall not withdraw any funds from the 2014 Notes Proceeds
Account for the purpose of transferring such funds to the Disbursement Account
(provided that the Disbursement Agent shall withdraw funds from the 2014 Notes
Proceeds Account for the purpose of paying scheduled Debt Service on the 2014
Notes), (iii) the Disbursement Agent shall not withdraw any funds from the
Company's Funds Account to satisfy such requested Advance, (iv) the
Disbursement Agent shall not withdraw, transfer or release to the Company any
funds then on deposit in the Bank Proceeds Account (provided that the
Disbursement Agent shall withdraw funds from the Bank Proceeds Account for the
purpose of paying scheduled Debt Service on the Bank Credit Facility), (v) the
Disbursement Agent shall not withdraw, transfer or release to the Company any
funds then on deposit in the Disbursement Account (other than in respect of
wires previously issued under Section 2.5.1(b)) and (vi) any Advance
Confirmation Notice issued prior to the issuance of a Stop Funding Notice (if
the Advance to which such Advance Confirmation Notice relates has not been
made) shall become null and void and of no force or effect; provided that such
nullification of any such Advance Confirmation Notice shall not affect the
obligations of the Company for break funding costs under the Bank Credit
Facility.
(c) Prior to the earliest of (i) termination of the "Term
Loan Commitments" (as defined in the Bank Credit Agreement) other than due to
the funding in full thereof, (ii) termination of the "Revolving Credit
Commitments" (as defined in the Bank Credit Agreement) and (iii) acceleration
by any Funding Agent of amounts owed under its Facility, unless any such action
has been rescinded, at such time, if ever, as the Disbursement Agent (x)
determines that the condition precedent to the requested Advance which had not
been satisfied has become satisfied or (y) receives notice from the Funding
Agent who issued the notice of default described in the preceding paragraph
that the Potential Event of Default or Event of Default has been cured or
waived, as the case may be, the Disbursement Agent shall deliver another
Advance Confirmation Notice with respect to the applicable Advance Request to
the Company and each of the Funding Agents.
(d) In the event that a Funding Agent entitled to waive
conditions precedent to funding pursuant to Section 3.5 or the Bank Agent
pursuant to Section 3.6 informs the Disbursement Agent in writing that it has
waived the event or events giving rise to the Stop Funding Notice, the
Disbursement Agent shall deliver an Advance Confirmation Notice (modified, if
applicable, to apply only to amounts to be advanced under such Funding Agent's
Facility unless all Funding Agents entitled to waive conditions with respect to
such Advance Request have waived the conditions or the Bank Agent has waived
such conditions pursuant to Section 3.6, in which case the Disbursement Agent
shall deliver an Advance Confirmation Notice with respect to all Advances
requested by the Company) to the Company and each of the Funding Agents.
2.3.3 Provision of Funds by the Bank Lenders.
(a) (i) (A) In the case of an Advance Confirmation Notice
issued pursuant to Section 2.3.2(a) above, on the requested Advance Date and
(B) in the case of an Advance Confirmation Notice issued pursuant to Section
2.3.2(c) or (d) above, on the third (3rd) Banking Day after such issuance,
before 12:00 p.m. New York, New York time, (x) the Bank Agent (subject to
Section 2.4.3) shall deposit or cause to be deposited in the Disbursement
Account, in immediately available funds, the Bank Credit Facility's portion of
the requested Advance, if any, as determined pursuant to Sections 2.4.1 and
2.4.2 and set forth in the related Advance Confirmation Notice and (y) if the
related Notice of Advance Request includes a request for the issuance of one or
more Letters of Credit under the Bank Credit Agreement, the Bank Agent shall
also send written notice to the Disbursement Agent that the "Issuing Lenders"
(as defined in the Bank Credit Agreement) have advised the Bank Agent that they
are committed to issue each such Letter of Credit.
(ii) Upon confirming that all funds required to be
deposited in the Disbursement Account pursuant to clause (i) above have been
deposited and, if applicable, upon receipt of the Bank Agent's confirmation
that the "Issuing Lenders" (as defined in the Bank Credit Agreement) have
advised the Bank Agent that they are committed to issue each requested Letter
of Credit, the Disbursement Agent shall (subject to Section 2.3.2(b)) promptly
withdraw from the Company's Funds Account, the 2014 Notes Proceeds Account and
the Bank Proceeds Account the portion of the Advance to be funded from each
such account as determined pursuant to Section 2.4 and set forth in the related
Advance Confirmation Notice, deposit such funds in the Disbursement Account and
shall notify the Bank Agent that such transfer to the Disbursement Account has
been made. Upon receipt of such notice, if applicable, the Bank Agent shall
instruct the "Issuing Lenders" (as defined in the Bank Credit Agreement) under
the Bank Revolving Facility to issue the requested Letters of Credit. All funds
so deposited in the Disbursement Account shall thereafter be applied by the
Disbursement Agent as provided in Section 2.5.
(b) Neither the Disbursement Agent nor the Bank Agent shall
be responsible for any Bank Lender's failure to make any required Advance or,
if applicable, the failure of any "Issuing Lender" under the Bank Credit
Agreement to issue any Letter of Credit. The Disbursement Agent shall not
release to the Company any amounts properly advanced until all Advances
requested by the relevant Advance Request have been deposited in the
Disbursement Account and, if applicable, the Bank Agent has confirmed that the
"Issuing Lenders" (as defined in the Bank Credit Agreement) under the Bank
Revolving Facility have advised the Bank Agent that they are committed to issue
each requested Letter of Credit, unless one or more of the Lenders who have
made the Advances request the release of any funds Advanced by each such Lender
(the Disbursement Agent shall promptly notify all Funding Agents upon receiving
any such request). However, the withholding of such Advances by the
Disbursement Agent shall not release the Lender who failed to make the Advance
under its Facility or any "Issuing Lender" who failed to issue a Letter of
Credit from liability. The Disbursement Agent shall have no liability to the
Company arising from any Stop Funding Notice issued pursuant to Section
2.3.2(b) at the request of any Funding Agent (a "Stop Funding Request"),
whether or not such Funding Agent was entitled to issue such Stop Funding
Request. A Funding Agent shall not have any liability to the Company, the
Disbursement Agent, any other Funding Agent or any Lender arising from any Stop
Funding Notice issued by the Disbursement Agent in response to a Stop Funding
Request by such Funding Agent; provided, however, that nothing herein shall
release from liability the Funding Agent who issued the Stop Funding Request if
such issuance resulted from, or constituted an act of gross negligence or
willful misconduct on the part of such Funding Agent, as finally judicially
determined by a court of competent jurisdiction.
2.3.4 Change in Facts Certified. The Company shall promptly
notify the Disbursement Agent prior to the making of any Advances in the event
that the Company obtains knowledge that any of the matters to which the Company
certified in the corresponding Advance Request are no longer true and correct
in all material respects. The acceptance by the Company of the proceeds of any
Advance shall constitute a re-certification by the Company, as of the
applicable Advance Date, of all matters certified to in the related Advance
Request, except to the extent that any matter so certified to relates to a
specific earlier date in which case such certification shall be true and
correct in all material respects as of such earlier date.
2.3.5 References to Dates. In the event that any day or date
referred to in the foregoing provisions of this Section 2.3 occurs on a day
that is not a Banking Day, the reference shall be deemed to be to the next
succeeding Banking Day.
2.4 ORDER OF SOURCES OF FUNDING.
2.4.1 Order of Withdrawals From Funding Sources. The full amount
of all Advances to be made on any given date shall be made from the following
sources and in the following order of priority:
(a) first, from funds from time to time on deposit in the
Company's Funds Account, until Exhausted;
(b) second, until the funds on deposit in the 2014 Notes
Proceeds Account have been Exhausted and subject to Section 2.4.2, from funds
from time to time on deposit in the 2014 Notes Proceeds Account and from funds
available to be drawn under the Bank Credit Facility, in such amounts so that
the aggregate amount of Advances on any given date pursuant to this Section
2.4.1(b) shall have been made in the following percentages: (A) sixty-six and
two-thirds percent (66 2/3%) shall have been Advanced from the 2014 Notes
Proceeds Account and (B) thirty-three and 1/3 percent (33 1/3%) shall have been
Advanced from the Bank Credit Facility;
(c) third, from funds available to be drawn under the Bank
Credit Facility, until Exhausted;
(d) fourth, from funds available to be transferred from the
Completion Guaranty Deposit Account under Section 5.5.3, until Exhausted; and
(e) fifth, from funds available to be transferred from the
Project Liquidity Reserve Account under Section 5.5.3, until Exhausted.
2.4.2 Advances for Letters of Credit. All Advances consisting of
Letters of Credit shall be counted as an Advance made from the Bank Credit
Facility in an amount equal to the stated amount of such Letters of Credit
outstanding from time to time for purposes of determining the funding ratio of
the Bank Credit Facility under Section 2.4.1 (second clause) above.
2.4.3 Advances Under the Bank Credit Facility. All issuances of
Letters of Credit under the Bank Credit Facility shall be satisfied through the
Bank Revolving Facility pursuant to the procedures set forth in Article 3 of
the Bank Credit Agreement. All other amounts required to be obtained from the
Bank Credit Facility for deposit in the Disbursement Account shall be satisfied
as follows:
(a) first, from amounts on deposit in the Bank Proceeds
Account on the relevant date, to the extent thereof (excluding amounts
previously advanced to the Bank Proceeds Account pursuant to Section 2.5.1(a)
which are intended to be used for Company payroll); and
(b) second, from funds available to be drawn under the Bank
Credit Facility.
2.4.4 Post-Funding Reallocations. In the event that at any time
the Disbursement Agent determines that the allocations made in any previous
Advance Request pursuant to the foregoing provisions of this Section 2.4 were
erroneous or inaccurate, the parties shall cooperate to rectify such
misallocations by allocating future Advances in a manner that accounts for the
previous misallocation or by using such other methods reasonably determined by
the Disbursement Agent.
2.5 DISBURSEMENTS.
2.5.1 Disbursement Procedures. No later than 2:00 p.m. New York,
New York time on the requested Advance Date, or such later date as may occur
pursuant to Section 2.3.3(a), after the Disbursement Agent has (i) confirmed
receipt of funds in the Disbursement Account from each Bank Lender required to
make an Advance pursuant to the relevant Advance Request other than any portion
of such Advance for which a Letter of Credit is to be issued under the Bank
Credit Facility, (ii) if applicable, received confirmation from the Bank Agent
that the "Issuing Lenders" (as defined in the Bank Credit Agreement) have
advised the Bank Agent that they are committed to issue each requested Letter
of Credit and (iii) transferred funds from the Company's Funds Account, the
2014 Notes Proceeds Account, the Bank Proceeds Account, the Completion Guaranty
Reserve Account and/or the Project Liquidity Reserve Account to the
Disbursement Account as required pursuant to the terms hereof, the Disbursement
Agent shall:
(a) to the extent set forth in the Advance Request transfer
funds to the Bank Proceeds Account and/or the Cash Management Account;
(b) with respect to amounts requested in the Advance Request
to be paid from the Disbursement Account to (i) the Primary Contractors, (ii)
each other Contractor and Subcontractor owed Project Costs to be paid in excess
of $7,000,000 and (iii) any financial institution that will be issuing a
commercial letter of credit for the account of the Company that will be
cash-collateralized in accordance with clause (g) of the definition of "Project
Costs," by wiring funds from the Disbursement Account directly to the account
of such Person as set forth in the Advance Request; and
(c) by transferring any remaining funds in the Disbursement
Account to the Company's Payment Account for further distribution by the
Company to each Contractor and Subcontractor owed Project Costs less than or
equal to $7,000,000 (excluding the Primary Contractors).
2.5.2 Special Procedures for Unpaid Contractors. Notwithstanding
Section 2.5.1 above, the Company agrees that the Disbursement Agent may make
payments from the Disbursement Account to any Contractor for amounts due and
owing to such Contractor under the relevant Contract, or any other
Subcontractors in payment of amounts due and owing to such party from the
Company without further authorization from the Company, and the Company hereby
constitutes and appoints the Disbursement Agent its true and lawful
attorney-in-fact to make such direct payments and this power of attorney shall
be deemed to be a power coupled with an interest and shall be irrevocable;
provided that, except upon the occurrence and continuation of an Event of
Default, the Disbursement Agent shall not exercise its rights under this power
of attorney except to make payments as directed by the Company pursuant to an
Advance Request. No further direction or authorization from the Company shall
be necessary to warrant or permit the Disbursement Agent to make such payments
in accordance with the foregoing sentence and, to the extent funds in the
Disbursement Account are not sufficient to make such payments, the Disbursement
Agent may withdraw the shortfall from any other Company Account and transfer
sufficient funds from such Company Accounts to the Disbursement Account as
needed to make such payments.
2.5.3 Special Procedures for Payroll. From time to time (but no
more frequently than once every week) upon satisfaction of the following
conditions precedent, the Disbursement Agent shall transfer amounts previously
advanced to the Bank Proceeds Account pursuant to Section 2.5.1(a) to the Cash
Management Account:
(a) the Company shall have certified to the Disbursement
Agent that the amount requested to be transferred is necessary to pay Soft
Costs consisting of Company payroll in accordance with the applicable Project
Budget during the ensuing seven (7) days; and
(b) the Company shall have substantiated to the Disbursement
Agent's reasonable satisfaction that amounts previously transferred by the
Disbursement Agent from the Bank Proceeds Account to the Cash Management
Account pursuant to this Section 2.5.3 have been used to pay Project Costs
associated with Company payroll in accordance with the applicable Project
Budget.
2.5.4 Satisfaction of Funding Obligations. All disbursements made
pursuant to Sections 2.5.1, 2.5.2 and 2.5.3 above shall satisfy, in and of
themselves, the obligations of the Disbursement Agent, the Funding Agents and
each Lender hereunder and under the relevant Facility Agreements with respect
to the Advance so made and the Advances with respect to the Bank Credit
Facility and the 2014 Notes Proceeds Account shall be secured by the
Facilities' respective Security Documents, if any, to the same extent as if
made directly to the Company, regardless of the disposition thereof by the
payees of such disbursements.
2.6 PHASE I SUBSTANTIAL COMPLETION DATE PROCEDURES.
(a) No less than thirty (30) days prior to the anticipated
Phase I Substantial Completion Date, the Company shall deliver notice of the
anticipated Phase I Substantial Completion Date to the Disbursement Agent, the
Construction Consultant, the Phase I Architect and the Funding Agents.
Thereafter, in order to cause the Phase I Substantial Completion to occur, the
Company shall deliver to the Construction Consultant, the Disbursement Agent
and each Funding Agent the Company's Phase I Substantial Completion Certificate
relating thereto, appropriately completed and duly executed by a Responsible
Officer of the Company with all attachments thereto.
(b) The Disbursement Agent shall, and shall instruct the
Construction Consultant to, review the Company's Phase I Substantial Completion
Certificate delivered pursuant to Section 2.6(a). In the event that the
Disbursement Agent or the Construction Consultant discovers any errors in the
Company's Phase I Substantial Completion Certificate, they shall request that
the Company revise and resubmit the certificate. The Disbursement Agent shall
promptly instruct the Construction Consultant to, within ten (10) Banking Days
after its receipt of the Company's Phase I Substantial Completion Certificate,
deliver to the Disbursement Agent, the Bank Agent, and the 2014 Notes Indenture
Trustee and the Company the Construction Consultant's Phase I Substantial
Completion Certificate approving or disapproving the Company's Phase I
Substantial Completion Certificate. If the Construction Consultant disapproves
the Company's Phase I Substantial Completion Certificate, the Disbursement
Agent shall instruct the Construction Consultant to provide the Company, in
reasonable detail, its reason(s) for such disapproval.
(c) Within five (5) Banking Days after receipt by the
Disbursement Agent of the Construction Consultant's Phase I Substantial
Completion Certificate approving the Company's Phase I Substantial Completion
Certificate the Disbursement Agent shall, subject to its reasonable
determination that each of the conditions to the Phase I Substantial Completion
has been satisfied, countersign the Company's Phase I Substantial Completion
Certificate and forward the same to the Bank Agent, the 2014 Notes Indenture
Trustee and the Company. The Phase I Substantial Completion Date shall be
deemed to occur on the date the Disbursement Agent countersigns the Company's
Phase I Substantial Completion Certificate relating thereto.
2.7 COMPLETION DATE PROCEDURES.
(a) No less than thirty (30) days prior to the anticipated
Completion Date for a Project, the Company shall deliver notice of the
anticipated Completion Date for such Project to the Disbursement Agent, the
Construction Consultant, the Project Architects and the Funding Agents.
Thereafter, in order to cause Completion for such Project to occur, the Company
shall deliver to the Construction Consultant, the Disbursement Agent and each
Funding Agent the Company's Completion Certificate relating to such Project,
appropriately completed and duly executed by a Responsible Officer of the
Company together with all attachments thereto.
(b) The Disbursement Agent shall, and shall instruct the
Construction Consultant to, review the Company's Completion Certificate for the
applicable Project. In the event that the Disbursement Agent or the
Construction Consultant discovers any errors in the Company's Completion
Certificate, they shall request that the Company revise and resubmit the
certificate. The Disbursement Agent shall promptly instruct the Construction
Consultant to, within ten (10) Banking Days after its receipt of the Company's
Completion Certificate for each Project, deliver to the Disbursement Agent, the
Bank Agent, the 2014 Notes Indenture Trustee and the Company the Construction
Consultant's Completion Certificate with respect to such Project approving or
disapproving the Company's Completion Certificate. If the Construction
Consultant disapproves the Company's Completion Certificate, the Disbursement
Agent shall instruct the Construction Consultant to provide the Company, in
reasonable detail, its reason(s) for such disapproval.
(c) Within five (5) Banking Days after receipt by the
Disbursement Agent of the Construction Consultant's Completion Certificate
approving the Company's Completion Certificate for the applicable Project, the
Disbursement Agent shall, subject to its reasonable determination that each of
the conditions to Completion of such Project has been satisfied, countersign
the Company's Completion Certificate for such Project and forward the same to
the Bank Agent, the 2014 Notes Indenture Trustee and the Company. The
Completion Date for the applicable Project shall be deemed to occur on the date
the Disbursement Agent countersigns the Company's Completion Certificate for
such Project.
2.8 COMPLETION GUARANTY RELEASE PROCEDURES.
(a) In order to cause the Completion Guaranty Release Date
to occur, the Company shall deliver to the Construction Consultant, the
Disbursement Agent and the Bank Agent the Company's Completion Guaranty Release
Certificate appropriately completed and duly executed by a Responsible Officer
of the Company, with all attachments thereto. The Company's Completion Guaranty
Release Certificate shall indicate that the Company believes the Completion
Guaranty Release Conditions have been satisfied, and shall contain all other
information required thereby, including the Company's calculation of the
Reserved Amount (if any).
(b) The Disbursement Agent shall, and shall instruct the
Construction Consultant to, promptly review the Company's Completion Guaranty
Release Certificate. In the event that the Disbursement Agent or the
Construction Consultant discovers any errors in the Company's Completion
Guaranty Release Certificate, it shall so inform the Company, stating in
reasonable detail the revisions required, and shall request that the Company
revise and resubmit the certificate. The Disbursement Agent shall promptly
instruct the Construction Consultant to, within ten (10) Banking Days after its
receipt of the Company's Completion Guaranty Release Certificate, deliver to
the Disbursement Agent, the Bank Agent and the Company, the Construction
Consultant's Completion Guaranty Release Certificate approving or disapproving
the Company's Completion Guaranty Release Certificate. If the Construction
Consultant disapproves the Company's Completion Guaranty Release Certificate,
the Disbursement Agent shall instruct the Construction Consultant to provide
the Company, in reasonable detail, its reason(s) for such disapproval.
(c) Within five (5) Banking Days after receipt by the
Disbursement Agent of the Construction Consultant's Completion Guaranty Release
Certificate approving the Company's Completion Guaranty Release Certificate,
the Disbursement Agent shall, subject to its reasonable determination that each
of the Completion Guaranty Release Conditions has been satisfied, countersign
the Company's Completion Guaranty Release Certificate and forward the same to
the Bank Agent and the Company. The Completion Guaranty Release Date shall be
deemed to occur on the date the Disbursement Agent countersigns the Company's
Completion Guaranty Release Certificate.
(d) On the Completion Guaranty Release Date, the
Disbursement Agent shall release to the Company all amounts on deposit in the
Completion Guaranty Deposit Account, excluding the Reserved Amounts, and the
amounts so released shall constitute a dividend from the Completion Guarantor
to the Company.
2.9 FINAL COMPLETION PROCEDURES.
2.9.1 Procedures.
(a) No less than thirty (30) days prior to the anticipated
Final Completion Date for a Project, the Company shall deliver notice of the
anticipated Final Completion Date for such Project to the Disbursement Agent,
the Construction Consultant, the Project Architects and the Funding Agents.
Thereafter, in order to cause Final Completion for such Project to occur, the
Company shall deliver to the Construction Consultant, the Disbursement Agent
and each Funding Agent the Company's Final Completion Certificate relating to
such Project, appropriately completed and duly executed by a Responsible
Officer of the Company together with all attachments thereto.
(b) The Disbursement Agent shall, and shall instruct the
Construction Consultant to, review the Company's Final Completion Certificate
for the applicable Project. In the event that the Disbursement Agent or the
Construction Consultant discovers any errors in the Company's Final Completion
Certificate, they shall request that the Company revise and resubmit the
certificate. The Disbursement Agent shall promptly instruct the Construction
Consultant to, within ten (10) Banking Days after its receipt of the Company's
Final Completion Certificate for each Project, deliver to the Disbursement
Agent, the Bank Agent, the 2014 Notes Indenture Trustee and the Company, the
Construction Consultant's Final Completion Certificate with respect to such
Project approving or disapproving the Company's Final Completion Certificate.
If the Construction Consultant disapproves the Company's Final Completion
Certificate, the Disbursement Agent shall instruct the Construction Consultant
to provide the Company, in reasonable detail, its reason(s) for such
disapproval.
(c) Within five (5) Banking Days after receipt by the
Disbursement Agent of the Construction Consultant's Final Completion
Certificate approving the Company's Final Completion Certificate for the
applicable Project, the Disbursement Agent shall, subject to its reasonable
determination that each of the conditions to Final Completion of such Project
has been satisfied, countersign the Company's Final Completion Certificate for
such Project and forward the same to the Bank Agent, the 2014 Notes Indenture
Trustee and the Company. The Final Completion Date for the applicable Project
shall be deemed to occur on the date the Disbursement Agent countersigns the
Company's Final Completion Certificate for such Project.
2.9.2 Phase I Project. On the Final Completion Date for the Phase
I Project, the Disbursement Agent shall release to the Company any amounts in
excess of $30,000,000 then on deposit in the Completion Guaranty Deposit
Account. Any amounts so released to the Company from the Completion Guaranty
Deposit Amount shall constitute a dividend from the Completion Guarantor to the
Company.
2.9.3 Last Project. On the Last Project Final Completion Date, the
Disbursement Agent shall release to the Company all amounts on deposit in the
Company Accounts, other than the Project Liquidity Reserve Account which shall
be released as provided in Section 2.2.8. Any amounts so released to the
Company from the Completion Guaranty Deposit Account shall constitute a
dividend from the Completion Guarantor to the Company.
2.10 NO APPROVAL OF WORK. The making of any Advance shall not be
deemed an approval or acceptance by the Disbursement Agent, any Funding Agent,
any Lender or the Construction Consultant (except to the extent set forth in
the Construction Consultant Engagement Agreement, and then only for the benefit
of the Lenders) of any work, labor, supplies, materials or equipment furnished
or supplied with respect to the Projects.
2.11 SECURITY. The Obligations shall be secured by the Project
Security in accordance with the Security Documents. Further, all funds advanced
by the Bank Lenders to complete the Projects or to protect the rights and
interests of the Secured Parties under the Financing Agreements are deemed to
be obligatory advances and are to be added to the total indebtedness secured by
each of the Security Documents (including the Deeds of Trust). All sums so
advanced shall be secured by each such Deed of Trust with the same priority of
lien as the security for any other obligations secured thereunder.
ARTICLE 3.
- CONDITIONS PRECEDENT TO
THE CLOSING DATE, PHASE II APPROVAL DATE AND ADVANCES
-----------------------------------------------------
3.1 CONDITIONS PRECEDENT TO THE CLOSING DATE. The occurrence of
the Closing Date is subject to the prior satisfaction of each of the conditions
precedent hereinafter set forth in this Section 3.1 in form and substance
satisfactory to each of the Bank Agent and the Representatives of the Initial
Purchasers in its sole discretion. Subject to Section 3.5, by executing this
Agreement (or, in the case of (a) the Representatives of the Initial
Purchasers, by purchasing the 2014 Notes and (b) the Bank Lenders, by becoming
a party to the Bank Credit Agreement) each of the Bank Agent, the Bank Lenders
and the Representatives of the Initial Purchasers shall be deemed to have
confirmed that it has become satisfied that each of the following conditions
precedent applicable to its Facility in this Section 3.1 has been satisfied.
3.1.1 Financing Agreements and Material Project Documents.
Delivery to each of the Bank Agent, the Representatives of the Initial
Purchasers and the Disbursement Agent (with such number of originally executed
copies as they may reasonably request) of (a) executed originals of each
Financing Agreement (other than those Financing Agreements, including the Phase
II Deliverables, that are not required to be executed and delivered on the
Closing Date) (collectively, the "Closing Financing Agreements"), and true and
correct copies of each Material Project Document then in effect and any
supplements or amendments thereto then in effect (including each Payment and
Performance Bond securing the Phase I Primary Construction Contract and each
Subcontract with a total contract amount or value of more than $25,000,000 with
an endorsement thereto naming the Collateral Agent as additional obligee and
otherwise complying with the requirements of Section 5.9), all of which shall
be in form and substance satisfactory to each of the Bank Agent and the
Representatives of the Initial Purchasers, shall have been duly authorized,
executed and delivered by the parties thereto, and each such Material Project
Document shall be certified by a Responsible Officer of the Company as of the
Closing Date as being true, complete and correct and in full force and effect
and (b) evidence satisfactory to each of the Bank Agent and the Representatives
of the Initial Purchasers that each such Material Project Document and each
such Closing Financing Agreement is in full force and effect and that no party
to any such Material Project Document or Closing Financing Agreement is or, but
for the passage of time or giving of notice or both will be, in breach of any
obligation thereunder.
3.1.2 Corporate and/or LLC Authority of the Loan Parties. Delivery
to each of the Bank Agent, the Representatives of the Initial Purchasers and
the Disbursement Agent of (a) a certified copy of the Articles of
Incorporation, Articles of Organization or other similar formation document(s)
of the each of the Loan Parties, (b) good standing certificates for each of the
Loan Parties issued by the Secretary of State of Nevada or any other state of
incorporation or organization, (c) a certified copy of the bylaws or a copy of
the Operating Agreement of each of the Loan Parties, certified by a Responsible
Officer of each such Loan Party or a member of such Loan Party, as applicable,
and (d) a copy of one or more resolutions or other authorizations of the Loan
Parties certified by a Responsible Officer of each such Loan Party, as being in
full force and effect on the Closing Date, authorizing the Advances herein
provided for and the execution, delivery and performance of this Agreement and
the other Operative Documents and any instruments or agreements required
hereunder or thereunder to which each such entity is a party.
3.1.3 Incumbency of the Loan Parties. Delivery to each of the Bank
Agent, the Representatives of the Initial Purchasers and the Disbursement Agent
of a certificate from each of the Loan Parties satisfactory in form and
substance to each of the Bank Agent and the Representatives of the Initial
Purchasers signed by a Responsible Officer of each such Loan Party, and dated
as of the Closing Date, as to the incumbency of the Person or Persons
authorized to execute and deliver this Agreement and the other Material Project
Documents (not theretofore executed) and Closing Financing Agreements and any
documents, instruments or agreements required hereunder or thereunder to which
each such entity is a party.
3.1.4 Insurance.
(a) Policies. Insurance complying with the requirements of
Exhibit L shall be in place and in full force and effect.
(b) The Company Insurance Broker's Certificate. Delivery to
each of the Bank Agent, the Representatives of the Initial Purchasers and the
Disbursement Agent of (i) a certificate, in the form of Exhibit B-4 attached
hereto or otherwise in form and substance reasonably satisfactory to each of
the Bank Agent and the Representatives of the Initial Purchasers from the
Company's insurance broker(s), dated as of the Closing Date and identifying
underwriters, type of insurance, insurance limits and policy terms, listing the
special provisions required as set forth in Exhibit L, describing the insurance
obtained and stating that such insurance is in full force and effect and that
all premiums then due thereon have been paid and (ii) certified copies of all
policies evidencing such insurance (or a binder, commitment or certificates
signed by the insurer or a broker authorized to bind the insurer along with a
commitment to deliver certified copies of the policies within forty-five (45)
days after the Closing Date) meeting the requirements of Exhibit L and
otherwise in form and substance reasonably satisfactory to each of the Bank
Agent and the Representatives of the Initial Purchasers.
(c) Company's Insurance Certificate. The Company shall have
identified, in the Company's Closing Certificate, the type of insurance,
insurance limits and policy terms of any insurance then required to be obtained
by any Contractor under the Material Project Documents then in effect and shall
have certified that, to the best of Company's knowledge, all insurance required
to be obtained by each Contractor under such Material Project Document or
Exhibit L is in full force and effect if the same is required to be in effect
and that if then required to be in effect, all premiums then due thereon have
been paid, and that such insurance complies with the requirement of such
Material Project Documents and Exhibit L.
(d) Insurance Advisor's Closing Certificate. Delivery to
each of the Bank Agent, the Representatives of the Initial Purchasers and the
Disbursement Agent of the Insurance Advisor's Closing Certificate,
substantially in the form of Exhibit B-3, or otherwise in form and substance
reasonably satisfactory each of to the Bank Agent and the Representatives of
the Initial Purchasers.
3.1.5 Project Security. All of the Security Documents other than
those not required to be delivered as of the Closing Date, in form and
substance satisfactory to (a) the Bank Agent and the Representatives of the
Initial Purchasers, shall have been executed and delivered to the Secured
Parties thereunder and shall be in full force and effect and all actions
necessary or desirable, including all filings, in the opinion of the Funding
Agents party thereto to perfect the security interests granted therein as a
valid security interest over the Project Security having the priority
contemplated therefor by this Agreement, the Intercreditor Agreement and the
Security Documents shall have been taken or made (except for any filings or
recordings to perfect the Secured Parties' lien in any motor vehicles).
3.1.6 Opinions. Each of the Bank Agent, the Representatives of the
Initial Purchasers and the Disbursement Agent shall have received the opinions
identified in Exhibit N.
3.1.7 Company's Closing Certificate. Delivery to each of the Bank
Agent, the Representatives of the Initial Purchasers and the Disbursement Agent
of the Company's Closing Certificate (which shall include, among other things,
a certification as to the solvency of the Company and each of the Loan Parties
on a consolidated basis after giving pro forma effect to the transactions
contemplated hereby) signed by a Responsible Officer of each Loan Party.
3.1.8 Projections. The Bank Lenders and the Representatives of the
Initial Purchasers shall have received Projections for the seven year period
following the Closing Date in form and substance satisfactory to the Bank
Lenders and the Representatives of the Initial Purchasers.
3.1.9 Advance Request. Delivery to the Disbursement Agent, the
Bank Agent and the Construction Consultant of an Advance Request in form and
substance satisfactory to the Bank Agent and the Disbursement Agent. Such
Advance Request shall request an Advance in an amount sufficient to pay all
fees and expenses then due and payable to the Secured Parties and their
respective advisors and consultants. Neither delivery of a Construction
Consultant's Advance Certificate nor delivery of an advance certificate from
the Phase I Architect (in the Form of Exhibit C-3) approving the requested
Advance shall be required for the initial Advance Request on the Closing Date.
3.1.10 Consultant Certificates and Report. Delivery to each of the
Bank Agent, the Representatives of the Initial Purchasers and the Disbursement
Agent of the Construction Consultant's Closing Certificate with the
Construction Consultant's Report in form and substance reasonably satisfactory
to each of the Bank Agent and the Representatives of the Initial Purchasers
attached thereto.
3.1.11 Litigation. No action, suit, proceeding or investigation of
any kind shall have been instituted or, to the Company's knowledge, pending or
threatened, including actions or proceedings of or before any Governmental
Authority, to which any Loan Party, the Phase I Project or, to the knowledge of
the Company, any Major Project Participant, is a party or is subject, or by
which any of them or any of their properties or the Phase I Project are bound
that could reasonably be expected to have a Material Adverse Effect, nor is the
Company aware of any reasonable basis for any such action, suit, proceeding or
investigation and no injunction or other restraining order shall have been
issued and no hearing to cause an injunction or other restraining order to be
issued shall be pending or noticed with respect to any action, suit or
proceeding if the same reasonably could be expected to have a Material Adverse
Effect.
3.1.12 Fees. All amounts required to be paid to or deposited with
the Funding Agents, the Representatives of the Initial Purchasers, the
Disbursement Agent or the Independent Consultants and all taxes, fees and other
costs payable in connection with the execution, delivery, recordation and
filing of the documents and instruments referred to in this Section 3.1, shall
have been paid or deposited, as the case may be, in full. The Company shall
have paid or arranged for payment out of the requested Advance of all fees,
expenses and other charges then due and payable by it under this Agreement or
other Financing Agreements or under any agreements between the Company and any
of the Independent Consultants.
3.1.13 Phase I Project Budget. Delivery to each of the
Disbursement Agent, the Bank Agent, the Representatives of the Initial
Purchasers and the Construction Consultant of a budget substantially in the
form of Exhibit F-1 (as amended from time to time in accordance with the terms
hereof, the "Phase I Project Budget") for all anticipated Project Costs of the
Phase I Project (including, without limitation, Project Costs incurred prior
to, as well as after, the Closing Date including closing costs and Debt Service
expected to be incurred prior to the Phase I Opening Date), which includes a
drawdown schedule for Advances necessary to achieve Final Completion for the
Phase I Project and such other information and supporting data as any of the
Bank Agent, the Representatives of the Initial Purchasers, the Disbursement
Agent or the Construction Consultant may reasonably require, together with a
balanced statement of sources and uses of proceeds (and any other funds
necessary to complete the Phase I Project), broken down by Facility and Line
Item Category, which Phase I Project Budget, drawdown schedule and statement of
sources and uses shall be reasonably satisfactory to the Construction
Consultant, as and to the extent certified to in the Construction Consultant's
Closing Certificate, and to the Bank Lenders and the Representatives of the
Initial Purchasers, it being acknowledged by the Bank Lenders and the
Representatives of the Initial Purchasers, that the level of detail of the
Phase I Project Budget shall be commensurate with the state of completion of
the Plans and Specifications relating to the Phase I Project.
3.1.14 Phase I Project Schedule and Schedule of Key Dates.
Delivery to the Disbursement Agent, the Bank Agent, the Representatives of the
Initial Purchasers and the Construction Consultant of a schedule for
construction and completion of the Phase I Project substantially in the form of
Exhibit G-1 (as amended from time to time in accordance with the terms hereof,
the "Phase I Project Schedule") which demonstrates that the Phase I Opening
Date is expected to occur on or before the Phase I Scheduled Opening Date, the
Phase I Substantial Completion Date is expected to occur on or before the Phase
I Scheduled Substantial Completion Date and the Phase I Completion Date is
expected to occur on or before the Phase I Scheduled Completion Date and which
is otherwise reasonably satisfactory to the Construction Consultant, as
certified to in the Construction Consultant's Closing Certificate.
3.1.15 Financial Statements. Delivery to the Disbursement Agent,
the Bank Agent and the Representatives of the Initial Purchasers of the most
recent annual consolidated financial statements and most recent quarterly
consolidated financial statements from the Company and its consolidated
Subsidiaries, together with certificates from a Responsible Officer of such
Person certifying such financial statements.
3.1.16 Material Adverse Effect. Since December 31, 2003, after
giving effect to the corporate restructuring, there shall not have occurred any
material adverse condition or material adverse change in or affecting the Phase
I Project Budget, the economics or feasibility of developing and/or
constructing and/or operating the Phase I Project, or business, assets,
liabilities, property, condition (financial or otherwise), results of
operations, prospects, or management of the Company and the other Loan Parties
taken as a whole, or any Project Credit Support Provider, or calls into
question in any material respect the Projections or any of the material
assumptions on which the Projections were prepared, or any other event,
development or circumstance that has caused or resulted in or could reasonably
be expected to cause or result in a Material Adverse Effect as certified by a
Responsible Officer of the Company in the Company's Closing Certificate.
3.1.17 Events of Default. No Event of Default or Potential Event
of Default shall have occurred and be continuing, as certified by a Responsible
Officer of the Company in the Company's Closing Certificate.
3.1.18 Permits.
(a) All Permits described in Exhibit J-1 as required to
have been obtained by any Loan Party or any Contractor by the Closing Date
shall have been issued and be in full force and effect and not subject to
current legal proceedings or to any unsatisfied conditions (that are required
to be satisfied by the Closing Date) that could reasonably be expected to
materially adversely modify any Permit, to revoke any Permit, to restrain or
prevent the construction or operation of the Phase I Project or otherwise
impose material adverse conditions on the Phase I Project or the financing
contemplated under the Financing Agreements and all applicable appeal periods
with respect thereto shall have expired.
(b) With respect to any of the Permits described in Exhibit
J-1 as not yet required to be obtained by any Loan Party or any Contractor
(other than Gaming/Liquor Licenses and any massage or second-hand dealer
licenses to be issued by ▇▇▇▇▇ County), (i) each such Permit is of a type that
is routinely granted on application and compliance with the conditions for
issuance and (ii) no facts or circumstances exist which indicate that any such
Permit will not be timely obtainable without undue expense or delay by the
Company or the applicable Person, respectively, prior to the time that it
becomes required.
3.1.19 Buy-Sell. The Buy-Sell Agreement is in full force
and effect.
3.1.20 Third Party Consents. Delivery to the Disbursement Agent
and each of the Bank Agent and the Representatives of the Initial Purchasers of
Consents from (a) the Phase I Primary Contractor, (b) Construction Guarantor,
(c) the Phase I Architect and (d) the Phase I Aqua Theater and Showroom
Designer, each in form of Exhibit P or otherwise in form and substance
reasonably satisfactory to the Bank Agent and the Representatives of the
Initial Purchasers.
3.1.21 Representations and Warranties. Each representation and
warranty of (a) each Loan Party set forth in Article 4 hereof, in the Bank
Credit Agreement or in any of the other Operative Documents shall be true and
correct in all material respects on the date made in the applicable document
and (b) to the Company's knowledge, each Major Project Participant (other than
any Loan Party) set forth in any of the Operative Documents shall be true and
correct in all material respects as of the date made in the applicable
document, unless the failure of any such representation and warranty referred
to in this clause (b) to be true and correct could not reasonably be expected
to have a Material Adverse Effect, in each case, as certified by the Company in
the Company's Closing Certificate.
3.1.22 Service of Process. Delivery to the Funding Agents and the
Disbursement Agent of a letter from CT Corporation System or any other Person
reasonably satisfactory to each of the Bank Agent and the Representatives of
the Initial Purchasers consenting to its appointment by each Loan Party in each
case in form and substance reasonably acceptable to each of the Bank Agent and
the Representatives of the Initial Purchasers, as each such Person's agent to
receive service of process in New York, New York.
3.1.23 Establishing of Company Accounts; 2014 Notes Proceeds. (a)
Each of the Company Accounts shall have been established pursuant hereto and
the Collateral Account Agreements; (b) the 2014 Notes shall have been issued in
an principal amount at maturity of One Billion Three Hundred Million Dollars
($1,300,000,000), and net proceeds of Seven Hundred Thirty Million, Seventy-Two
Thousand, Five Hundred Fifty-Six Dollars and Thirty-Seven Cents
($730,072,556.37) shall have been deposited in the 2014 Notes Proceeds Account;
(c) funds in an amount equal to Fifty Million Dollars ($50,000,000) shall be on
deposit in the Completion Guaranty Deposit Account, and (d) funds in an amount
equal to Thirty Million Dollars ($30,000,000) shall be on deposit in the
Project Liquidity Reserve Account.
3.1.24 Funding of Equity. The Company shall have certified in the
Company's Closing Certificate (as confirmed by the Construction Consultant to
the extent set forth in the Construction Consultant's Closing Certificate) that
(a) the amounts on deposit in the Project Liquidity Reserve Account have been
irrevocably and unconditionally contributed to the Company; and (b) in addition
thereto, cash or property in an amount not less than Four Hundred Million
Dollars ($400,000,000.00) has been irrevocably and unconditionally contributed
to the Company.
3.1.25 A.L.T.A. Surveys. The Disbursement Agent and each of the
Bank Agent and the Representatives of the Initial Purchasers shall have
received A.L.T.A. surveys of the Site and the Site Easements, satisfactory in
form and substance to the Title Insurer and each of the Bank Agent and the
Representatives of the Initial Purchasers, dated no earlier than sixty (60)
days prior to the Closing Date and certified to each such Person by a licensed
surveyor satisfactory to each such Person, showing (a) as to the Site, the
exact location and dimensions thereof, including the location of all means of
access thereto, the perimeters within which all of foundations for the Phase I
Project are located, and all easements relating thereto; (b) as to the Site
Easements, the exact location and dimensions thereof to the extent capable of
being described, including the location of all means of access thereto, and all
improvements or other encroachments in or on the Site Easements; (c) the
existing utility facilities servicing the Phase I Project (including water,
electricity, gas, telephone, sanitary sewer and storm water distribution and
detention facilities); (d) that such existing improvements do not encroach or
interfere (in any manner that could reasonably be expected to have a Material
Adverse Effect) with adjacent property or existing easements or other rights
(whether on, above or below ground), and that there are no gaps, gores,
projections, protrusions or other survey defects other than Permitted
Encumbrances applicable to such real property; (e) whether the Site or any
portion thereof is located in a special earthquake or flood hazard zone; and
(f) that there are no other matters that could reasonably be expected to be
disclosed by a survey constituting a defect in title other than the Permitted
Encumbrances.
3.1.26 Title Policies. The Company shall have delivered to the
Collateral Agent, a lender's A.L.T.A. policy of title insurance, or a
commitment to issue such policy, in the amount of $2,300,000,000. Such policy
or commitment shall (i) include such endorsements as are required by the Bank
Agent and the Representatives of the Initial Purchasers, respectively, (ii)
reasonably be reinsured by such reinsurance as is satisfactory to the Bank
Agent and the Representatives of the Initial Purchasers, respectively, (iii) be
reasonably issued by Title Insurer in form and substance reasonably
satisfactory to the Bank Agent and the Representatives of the Initial
Purchasers, respectively, and (iv) insure (or agree to insure) that:
(a) The Company has fee simple title to the Site and the
Site Easements (other than the Mortgaged Property encumbered or to be
encumbered by Wynn Sunrise and ▇▇▇▇ Golf) and a valid leasehold estate or
easement interest, as the case may be, in the portions of the Site described in
the Affiliate Real Estate Agreements, free and clear of liens, encumbrances and
other exceptions to title except those exceptions specified on Exhibit K-1
("▇▇▇▇ Las Vegas Permitted Encumbrances");
(b) ▇▇▇▇ Golf has fee simple title to the Golf Course Land
(including the Home Site Land and the Wynn Home Site) and the Golf Course Land
Easements, free and clear of liens, encumbrances and other exceptions to title
except those exceptions specified on Exhibit K-2 ("▇▇▇▇ Golf Permitted
Encumbrances");
(c) Wynn Sunrise has fee simple title to the Wynn Sunrise
Land and the Wynn Sunrise Land Easements, free and clear of liens, encumbrances
and other exceptions to title except those exceptions specified on Exhibit K-3
("Wynn Sunrise Permitted Encumbrances"); and
(d) each Deed of Trust is (or will be when recorded) a
valid, first priority lien on the "Trust Estate" (as defined in each Deed of
Trust), free and clear of all liens, encumbrances and exceptions to title
whatsoever, other than (i) ▇▇▇▇ Las Vegas Permitted Encumbrances in the case of
the Deeds of Trust executed by the Company, (ii) ▇▇▇▇ Golf Permitted
Encumbrances in the case of the Deeds of Trust executed by ▇▇▇▇ Golf, and (iii)
Wynn Sunrise Permitted Encumbrances in the case of the Deeds of Trust executed
by Wynn Sunrise.
3.1.27 Commitment and Fee Letters. The letters regarding the fees
of the Bank Agent, the Collateral Agent, the Nevada Collateral Agent and the
Disbursement Agent, respectively, shall have been executed and delivered. The
Company shall have complied with all of its obligations under and agreements in
the Commitment Letter and the various fee letters entered into with the
Arrangers, the Bank Agent, the Collateral Agent, the Nevada Collateral Agent or
the Disbursement Agent then required to be complied with.
3.1.28 Phase I Plans and Specifications. The Company shall have
delivered to the Construction Consultant Plans and Specifications for the Phase
I Project in form and substance reasonably satisfactory to the Construction
Consultant, as certified to in the Construction Consultant's Closing
Certificate. Subject to approval of the finalized Plans and Specifications for
the Phase I Project by the proper Governmental Authorities, such Plans and
Specifications for the Phase I Project shall constitute Final Plans and
Specifications.
3.1.29 Corporate and Capital Structure; Management. The corporate
organization structure, capital structure and ownership of the Project Credit
Support Providers, the Company and its Subsidiaries shall be satisfactory to
each of the Bank Agent and the Representatives of the Initial Purchasers. The
management structure of the Company and its Subsidiaries shall be satisfactory
to each of the Bank Agent and the Representatives of the Initial Purchasers.
3.1.30 Real Estate Appraisals. Each of the Bank Agent, the
Representatives of the Initial Purchasers and the Disbursement Agent shall have
received a FIRREA appraisal of the Site from an independent real estate
appraiser reasonably satisfactory to the Bank Agent and the Representatives of
the Initial Purchasers, in form, scope and substance satisfactory to each such
Person, satisfying the requirements of any applicable laws and regulations.
3.1.31 Environmental Reports. Each of the Bank Agent, the
Representatives of the Initial Purchasers and the Disbursement Agent shall have
received (a) the Phase I Environmental Site Assessment for the Site and the
Site Easements (excluding the Wynn Sunrise Land and Wynn Sunrise Easements)
conducted by Terracon and dated November 22, 2004 and the Phase I Environmental
Site Assessment for the Wynn Sunrise Land and Wynn Sunrise Easements conducted
by Terracon and dated November 5, 2004 (collectively, the "Phase I Reports")
and (b) that certain reliance letter from Terracon dated December 7, 2004.
3.1.32 In Balance Requirement. The Phase I Project shall be In
Balance.
3.1.33 No Restrictions. No order, judgment or decree of any court,
arbitrator or governmental authority shall purport to enjoin or restrain any of
the Bank Lenders from making the Advances to be made by them on the Closing
Date.
3.1.34 Violation of Certain Regulations. The making of the
requested Advance shall not violate any law including Regulation T, Regulation
U or Regulation X of the Board of Governors of the Federal Reserve System.
3.1.35 Notices of Pledges of Water Permits. The Company and ▇▇▇▇
Golf shall have executed duplicate original notices of pledge in form and
substance reasonably satisfactory to the Bank Agent and the Representatives of
the Initial Purchasers describing Nevada Water Permit Nos. 69513 (Certificate
no. 4765), 69514 (Certificate no. 4766), 69515 (Certificate no. 7828), 69516
(Certificate no. 7827), 69517 (Certificate no. 7829) and 69518 (Certificate no.
7830), 69512 (Certificate no. 4731), 60164 (Certificate no. 15447), 60165
(Certificate no. 15448) and such notices of pledge shall have been completed
and delivered to the Disbursement Agent. Upon the occurrence of the Closing
Date, the Company hereby authorizes the Disbursement Agent to complete the
recording information from each Deed of Trust signed by the Company and ▇▇▇▇
Golf and to file them with the Nevada State Engineer promptly after recordation
of such Deeds of Trust, together with a Report of Conveyance and Abstract of
Title for each permit.
3.1.36 Liens. The Company shall have delivered or caused to be
delivered to the Disbursement Agent a lien release summary chart substantially
in the form of Appendix VI to Exhibit C-1 and the following releases:
(a) Unconditional Releases. Duly executed acknowledgments
of payments and unconditional releases of mechanics' and materialmen's liens
substantially in the form of Exhibit H-1 from the Contractors and
Subcontractors listed in clauses (i) and (ii) below for all work, services and
materials, including equipment and fixtures of all kinds, done, performed or
furnished for the construction of each Project through October 31, 2004, except
for such work, services and materials the payment for which does not exceed, in
the aggregate $10,000,000 and is being disputed in good faith, so long as (1)
such proceedings shall not involve any substantial danger of the sale,
forfeiture or loss of either Project, or any Mortgaged Property, as the case
may be, title thereto or any interest therein and shall not interfere in any
material respect with either Project or any Mortgaged Property and (2) adequate
cash reserves have been provided therefor through an allocation in the Phase I
Anticipated Cost Report. The Persons required to provide such lien releases
are:
(i) The Primary Contractors and each of their first
tier trade subcontractors and materialmen under the Primary Construction
Contracts, in each case performing work with a contract price (or expected
aggregate amount to be paid in the case of "cost-plus" contracts) in excess of
$25,000; and
(ii) (A) Each Contractor party to a "fixed price"
contract and (B) each other Contractor and each of its first tier trade
subcontractors and materialmen, in each case performing work with a contract
price (or expected aggregate amount to be paid in the case of "cost-plus"
contracts) in excess of $100,000 (or with respect to suppliers and vendors who
are located outside the United States and do not provide labor at the Site,
$200,000).
(b) Conditional Releases. Duly executed acknowledgments of
payments and releases of mechanics' and materialmen's liens substantially in
the form of Exhibit H-2 from the Contractors and Subcontractors listed in
clauses (i) and (ii) below for all work, services and materials, including
equipment and fixtures of all kinds, done, performed or furnished for the
construction of each Project from November 30, 2004, except for such work,
services and materials the payment for which does not exceed, in the aggregate
$10,000,000 and is being disputed in good faith, so long as (1) such
proceedings shall not involve any substantial danger of the sale, forfeiture or
loss of either Project or any Mortgaged Property, as the case may be, title
thereto or any interest therein and shall not interfere in any material respect
with either Project or any Mortgaged Property and (2) adequate cash reserves
have been provided therefor through an allocation in the Phase I Anticipated
Cost Report. The Persons required to provide such lien releases are:
(i) The Primary Contractors and each of its first tier
trade subcontractors and materialmen under the Primary Construction Contracts,
in each case performing work with a contract price (or expected aggregate
amount to be paid in the case of "cost-plus" contracts) in excess of $25,000;
(ii) (A) Each Contractor party to a "fixed price"
contract and (B) each other Contractor and each of its first tier trade
subcontractors and materialmen, in each case performing work with a contract
price (or expected aggregate amount to be paid in the case of "cost-plus"
contracts) in excess of $100,000 (or, with respect to suppliers and vendors who
are located outside the United States and do not provide labor at the Site,
$200,000).
Notwithstanding the foregoing, if the Company or any Contractor
does not obtain any of the foregoing waivers and releases of liens required
under clauses (a) or (b) above (collectively, "Closing Date Outstanding
Releases"), then instead of delivering such Closing Date Outstanding Releases,
the Company may obtain and provide to the Disbursement Agent from the Title
Insurer bonds or endorsements to the title insurance policies reasonably
satisfactory to the Disbursement Agent insuring the lien free status of the
work and the Mortgaged Property; provided, however, that at no time shall the
aggregate of all Closing Date Outstanding Releases represent work with an
aggregate value in excess of $2,000,000.
3.1.37 Phase I Excess Cash Flow Schedule. Delivery to each of the
Disbursement Agent, the Bank Agent, the Arrangers, the Representatives of the
Initial Purchasers and the Construction Consultant of the Phase I Projected
Excess Cash Flow Schedule substantially in the form of Exhibit F-7 identifying
the anticipated "Excess Cash Flows" (as such term is defined in the Bank Credit
Agreement) for the Phase I Project designated by the Company to be used to pay
Phase II Project Costs (if the Phase II Approval Date occurs), broken down by
quarter for each quarter from the then anticipated Phase I Opening Date through
the then anticipated Phase II Final Completion Date, which Phase I Projected
Excess Cash Flow Schedule shall be reasonably satisfactory to each of the
Disbursement Agent, the Bank Agent, the Arrangers, the Representatives of the
Initial Purchasers and the Construction Consultant.
3.1.38 Closing Date Transactions. The Closing Transactions shall
have occurred or shall be occurring substantially concurrently herewith.
3.1.39 Other Documents. The Disbursement Agent and each of the
Bank Agent and the Representatives of the Initial Purchasers shall have
received such other documents and evidence as are customary for transactions of
this type as each such Person may reasonably request in connection with the
transactions contemplated hereby.
3.2 CONDITIONS PRECEDENT TO ADVANCES TO THE PHASE I PROJECT AND,
AFTER PHASE II APPROVAL DATE, THE PHASE II PROJECT. Subject to Section 3.3, the
obligation of the Bank Lenders, the 2014 Notes Indenture Trustee and the
Disbursement Agent to make Advances and to pay Project Costs with respect to
the Phase I Project and, from and after the Phase II Approval Date, the Phase
II Project are subject to the prior satisfaction of each of the following
conditions precedent in form and substance reasonably satisfactory to the
Disbursement Agent in its reasonable discretion:
3.2.1 Certain Operative Documents. Each Material Project Document
and each Financing Agreement shall be in full force and effect (unless it has
expired in accordance with its terms), without amendment since the respective
date of its execution and delivery, and in a form which was provided to the
Bank Agent and the Representatives of the Initial Purchasers prior to the
Closing Date except (a) for amendments or terminations to Material Project
Documents not prohibited by Section 6.1, the Bank Credit Agreement or the 2014
Notes Indenture, (b) to the extent the Company has entered into a replacement
Material Project Document to the extent permitted by Section 7.1.6, or if
pursuant to such Section the Company is not required to enter into a
replacement Material Project Document, and each certificate delivered by the
Company with respect to any such document shall be true and correct in all
material respects, as certified by the Company in the relevant Advance Request,
(c) amendments to the Financing Agreements to the extent not prohibited under
the Facility Agreements and (d) prior to the Phase II Approval Date, the Phase
II Deliverables.
3.2.2 Representations and Warranties. Each representation and
warranty of (a) each Loan Party set forth in Article 4 hereof or in any of the
other Financing Agreements shall be true and correct in all material respects
as if made on such date (except that any representation and warranty that
relates expressly to an earlier date shall be deemed made only as of such
earlier date), (b) each Loan Party set forth in each Material Project Document
was true and correct in all material respects on the date made in the
applicable document and (c) to the Company's knowledge, each Major Project
Participant (other than any Loan Party) set forth in any of the Material
Project Documents was true and correct in all material respects on the date
made in the applicable document, unless the failure of any such representation
and warranty referred to in clauses (b) or (c) to be true and correct could not
reasonably be expected to have a Material Adverse Effect, in each case, as
certified by the Company in the relevant Advance Request.
3.2.3 Events of Default. No Event of Default or Potential Event of
Default shall have occurred and be continuing or could reasonably be expected
to result from such Advance, as certified by the Company in the relevant
Advance Request.
3.2.4 Notice of Advance Request. The Disbursement Agent shall have
received and shall have been notified that the Funding Agents have received a
Notice of Advance Request in accordance with Section 2.3.1(e) with respect to
the requested Advance.
3.2.5 Advance Request and Certificate. The Company shall have
delivered to the Disbursement Agent and the Construction Consultant an Advance
Request in each case, with the Required Contractor and Architect Advance
Certificate and all other attachments, exhibits and certificates required by
Sections 2.3.1(a), (b), (c) and (d) as the case may be (and, solely with
respect to any December 2004 Advance Request, with such changes to the form of
Advance Request (and any attachments, exhibits or certificates thereto) as are
reasonably acceptable to the Disbursement Agent). Such Advance Request shall
request an Advance in an amount estimated at the time to be sufficient to pay
all amounts due and payable for work performed on the Projects through the last
day of the period covered by such Advance Request. The Disbursement Agent shall
have reviewed and evaluated the same as provided in Section 2.3.2(a) and,
subject to Section 2.3.2(a)(ii), shall not have become aware of any material
error, inaccuracy, misstatement or omission of fact in an Advance Request or an
attachment, exhibit or certificate attached thereto or information provided by
the Company upon the reasonable request of the Disbursement Agent.
3.2.6 Consultant's Certificates. Delivery to the Disbursement
Agent of the Construction Consultant's Advance Certificate with respect to the
requested Advance as required by Section 2.3.1(f), substantially in the form of
Exhibit C-2, approving (subject to the proviso in Section 2.3.1(f)) the
corresponding Advance Request (and, solely with respect to any December 2004
Advance Request, with such changes to the form of Construction Consultant's
Advance Certificate as are reasonably acceptable to the Disbursement Agent).
3.2.7 Liens. The Company shall have delivered or caused to be
delivered to the Disbursement Agent an updated lien release summary chart
substantially in the form of Appendix VI to the Company's Advance Request and
the following releases:
(a) Unconditional Releases. Duly executed acknowledgments of
payments and unconditional releases of mechanics' and materialmen's liens
substantially in the form of Exhibit H-1 from the Contractors and
Subcontractors listed in clauses (i) and (ii) below for all work, services and
materials, including equipment and fixtures of all kinds, done, performed or
furnished for the construction of the Projects through the last day covered by
the immediately preceding Advance Request, except for such work, services and
materials the payment for which does not exceed, in the aggregate $10,000,000
and is being disputed in good faith, so long as (1) such proceedings shall not
involve any substantial danger of the sale, forfeiture or loss of the Projects,
or any Mortgaged Property, as the case may be, title thereto or any interest
therein and shall not interfere in any material respect with the Projects or
any Mortgaged Property and (2) adequate cash reserves have been provided
therefor through an allocation in the applicable Anticipated Cost Report. The
Persons required to provide such lien releases are:
(i) the Primary Contractors and each of their first tier
trade subcontractors and materialmen under the Primary Construction Contracts,
in each case performing work with a contract price (or expected aggregate
amount to be paid in the case of "cost-plus" contracts) in excess of $25,000;
and
(ii) (A) each Contractor party to a "fixed price" contract
and (B) each other Contractor and each of its first tier trade subcontractors
and materialmen, in each case performing work with a contract price (or
expected aggregate amount to be paid in the case of "cost-plus" contracts) in
excess of $100,000 (or with respect to suppliers and vendors who are located
outside the United States and do not provide labor at the Site, $200,000).
(b) Conditional Releases. Duly executed acknowledgments of
payments and releases of mechanics' and materialmen's liens substantially in
the form of Exhibit H-2 from the Contractors and Subcontractors listed in
clauses (i) and (ii) below for all work, services and materials, including
equipment and fixtures of all kinds, done, performed or furnished for the
construction of the Projects from the last day covered by the immediately
preceding Advance Request through the last day covered by the current Advance
Request except for such work, services and materials the payment for which does
not exceed, in the aggregate $10,000,000 and is being disputed in good faith,
so long as (1) such proceedings shall not involve any substantial danger of the
sale, forfeiture of loss of the Projects or any Mortgaged Property, as the case
may be, title thereto or any interest therein and shall not interfere in any
material respect with the Projects or any Mortgaged Property and (2) adequate
cash reserves have been provided therefor through an allocation in the
applicable Anticipated Cost Report. The Persons required to provide such lien
releases are:
(i) the Primary Contractors and each of its first tier
trade subcontractors and materialmen under the Primary Construction Contracts,
in each case performing work with a contract price (or expected aggregate
amount to be paid in the case of "cost-plus" contracts) in excess of $25,000;
(ii) (A) each Contractor party to a "fixed price" contract
and (B) each other Contractor and each of its first tier trade subcontractors
and materialmen, in each case performing work with a contract price (or
expected aggregate amount to be paid in the case of "cost-plus" contracts) in
excess of $100,000 (or, with respect to suppliers and vendors who are located
outside the United States and do not provide labor at the Site, $200,000).
Notwithstanding the foregoing, if the Company or any Contractor
does not obtain any of the foregoing waivers and releases of liens required
under clauses (a) or (b) above (collectively, "Outstanding Releases"), then
instead of delivering such Outstanding Releases and as a condition to any
progress or other payment from the proceeds of the requested Advance, the
Company may obtain and provide to the Disbursement Agent from the Title Insurer
bonds or endorsements to the title insurance policies insuring the lien free
status of the work and the Mortgaged Property; provided, however, that at no
time shall the aggregate of all Outstanding Releases represent work with an
aggregate value in excess of $2,000,000.
3.2.8 Title Policy Endorsement. The Disbursement Agent shall have
received a commitment from the Title Insurer, attached to the Advance Request,
evidencing the Title Insurer's unconditional commitment to issue an endorsement
to the Title Policies (such endorsement to be dated as of the applicable
Advance Date) in the form of a 122 CLTA Endorsement insuring the continuing
priority of the Lien of each Deed of Trust as security for the requested
Advance and confirming and/or insuring that (i) since the previous disbursement
from the Disbursement Account, there has been no change in the condition of
title unless permitted by the Financing Agreements and (ii) there are no
intervening liens or encumbrances which may then or thereafter take priority
over the respective Liens of the Deeds of Trust other than Permitted
Encumbrances and such intervening liens or encumbrances securing amounts the
payment of which is being disputed in good faith by the Company, so long as the
Disbursement Agent has received confirmation from the applicable Funding Agents
that the Title Insurer has delivered to such Funding Agents any endorsement to
the respective Title Policies required or desirable to assure against loss to
the Secured Parties due to the priority of such lien or encumbrance.
3.2.9 Permits. The Company shall have certified that:
(a) other than exceptions to any of the following that could
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect: (i) each of the Loan Parties and each Contractor has
obtained and holds all Permits described in Exhibit J-1 or Exhibit J-2 required
to be obtained by such Loan Party or Contractor as of the date this
certification is deemed made, (ii) all such Permits are in full force and
effect and each of the Loan Parties and, to the Company's knowledge, each
Contractor, has performed and observed all requirements of such Permits to the
extent required to be performed as of the date this certification is deemed
made, (iii) no event has occurred which allows or results in, or after notice
or lapse of time would allow or result in, revocation, modification, suspension
or termination by the issuer thereof or in any other impairment of the rights
of the holder of any such Permit, (iv) no such Permits contain any
restrictions, either individually or in the aggregate, that could reasonably be
expected to materially and adversely affect any of the Loan Parties, or the
operation of the business of any such Loan Party or any property owned, leased
or otherwise operated by such Person, (v) the Company has no knowledge that any
Governmental Authority is considering limiting, modifying, suspending, revoking
or renewing any such Permit on terms that could reasonably be expected to
materially and adversely affect any of the Loan Parties or the operation of the
business of any such Loan Party or any property owned, leased or otherwise
operated by such Person and (vi) each of the Loan Parties reasonably believes
that each such Permit will be timely renewed and complied with, without undue
expense or delay;
(b) with respect to any of the Permits described in Exhibit
J-1 or Exhibit J-2 as not yet required to be obtained by any Loan Party or any
Contractor (other than the Gaming/Liquor Licenses and any massage or
second-hand dealer licenses to be issued by ▇▇▇▇▇ County), (i) each such Permit
is of a type that is routinely granted on application and compliance with the
conditions for issuance and (ii) no facts or circumstances exist which indicate
that any such Permit will not be timely obtainable without undue expense or
delay by the Company or the applicable Person, respectively, prior to the time
that it becomes required; and
(c) solely until the Phase I Opening Date, the Buy-Sell
Agreement is in full force and effect.
3.2.10 Additional Documents. With respect to any Material
Construction Agreements entered into or obtained, transferred or required
(whether because of the status of the construction or operation of the Projects
or otherwise) since the date of the most recent Advance, the Bank Agent shall
have confirmed that the Company has complied with the requirements of Section
6.5.
3.2.11 Plans and Specifications. The Disbursement Agent and the
Construction Consultant shall have received copies of all Plans and
Specifications which, as of the date of the requested Advance Date, constitute
Final Plans and Specifications to the extent not theretofore delivered.
3.2.12 As-Built Survey. At the time of the first Advance Request
occurring after completion of the foundation work for each Project, the Company
shall cause an updated as-built survey to be delivered to the Construction
Consultant and the Disbursement Agent satisfactory in form and substance to the
Title Insurer and the Disbursement Agent.
3.2.13 Litigation. No action, suit, proceeding or investigation of
any kind shall have been instituted or, to the Company's knowledge, pending or
threatened, including actions or proceedings of or before any Governmental
Authority, to which any Loan Party, the Projects or, to the knowledge of the
Company, any Major Project Participant (other than any Loan Party), is a party
or is subject, or by which any of them or any of their properties or the
Projects are bound that could reasonably be expected to have a Material Adverse
Effect nor is the Company aware of any reasonable basis for any such action,
suit, proceeding or investigation and no injunction or other restraining order
shall have been issued and no hearing to cause an injunction or other
restraining order to be issued shall be pending or noticed with respect to any
action, suit or proceeding if the same could reasonably be expected to have a
Material Adverse Effect.
3.2.14 In Balance Requirement. The Projects shall be In Balance.
3.2.15 No Restriction. No order, judgment or decree of any court,
arbitrator or governmental authority shall purport to enjoin or restrain any of
the Bank Lenders or the 2014 Notes Indenture Trustee from making the Advances
to be made by it on the requested Advance Date.
3.2.16 Violation of Certain Regulations. The making of the
requested Advance shall not violate any law including Regulation T, Regulation
U or Regulation X of the Board of Governors of the Federal Reserve System.
3.2.17 Material Adverse Effect. Since the Closing Date, there
shall not have occurred any change in the Project Budgets (excluding any
amendment thereto permitted under Section 6.3), in the economics or feasibility
of constructing and/or operating the Projects, or in the financial condition,
business or property of the Loan Parties, any of which could reasonably be
expected to have a Material Adverse Effect.
3.2.18 Subcontracts. The Company shall have delivered a copy of
(i) each Contract entered into between the Company and any Contractor with a
contract price (or expected aggregate amount to be paid in the case of "cost
plus" contracts) in excess of $500,000, (ii) each first tier Subcontract
entered into by any Primary Contractors with a contract price (or expected
aggregate amount to be paid in the case of "cost plus" contracts) in excess of
$500,000, (iii) each first tier Subcontract with a contract price (or expected
aggregate amount to be paid in the case of "cost plus" contracts) in excess of
$500,000 entered into by any other Contractor who is party to a Contract
entered into with the Company that is not subject to a fixed price and (iv) a
copy of any Payment and Performance Bond required pursuant to Section 5.9
hereof to the Disbursement Agent, the Construction Consultant and Bank Agent
promptly after mutual execution and delivery thereof.
3.2.19 Unincorporated Materials. Delivery to the Disbursement
Agent and the Construction Consultant of a written inventory in the form of
Appendix IX to the Company's Advance Request identifying all materials,
machinery, fixtures, furniture, equipment or other items purchased or
manufactured for incorporation into the Project but which, at the time of the
Advance Request, (i) are not located at the Site and for which the Company has
paid or intends to pay with the proceeds of the Advance Request all or a
portion of the purchase price or (ii) are located at the Site but are not
expected to be incorporated into the Projects within thirty (30) days after
such Advance Request (such materials, the "Unincorporated Materials") and
including the value thereof, together with evidence reasonably satisfactory to
the Construction Consultant and the Disbursement Agent that the following
conditions have been satisfied with respect to such Unincorporated Materials:
(a) all Unincorporated Materials for which full payment has
previously been made or is being made with the proceeds of the Advance to be
disbursed are, or will be upon full payment, owned by the Company, as evidenced
by the bills of sale, certificates of title or other evidence reasonably
satisfactory to the Construction Consultant, and all lien rights or claims of
the supplier has been or will be released simultaneously with such full payment
and all amounts, if any, required to be paid to the supplier thereof with
respect to the installation of such Unincorporated Materials (including any
Retainage Amounts);
(b) the Company believes that the Unincorporated Materials
consist of fabricated or unfabricated components that conform to the Final
Plans and Specifications and that will be ready for incorporation into the
Projects upon delivery thereof or within a reasonable period of time
thereafter;
(c) all Unincorporated Materials are properly inventoried,
securely stored, protected against theft and damage at the Site or at such
other location which has been specifically identified by its complete address
to the Construction Consultant and the Disbursement Agent (or if the Company
cannot provide the complete address of the current storage location, the
Company shall list the name and complete address of the applicable contracting
party supplying or manufacturing such Unincorporated Materials);
(d) With respect to any Unincorporated Materials as to which
deposit or other partial payments have been made or will be made out of the
requested Advance (but which have not been and will not be fully paid after
giving effect to the requested Advance), (i) the Secured Parties have, or will
have upon payment with the proceeds of the requested Advance, a perfected
security interest in the Unincorporated Materials and/or Contract therefor,
with the priority therein contemplated by the Security Documents (and with
respect to Unincorporated Materials not stored at the Site from a single or
Affiliated suppliers (of which the Company is aware that such suppliers is an
Affiliate) with a contract price (or expected aggregate amount to be paid in
the case of "cost-plus" contracts) in excess of $5,000,000 (excluding items
located outside of the United States or in transit from jurisdictions outside
of the United States) or any Contracts with a contract price (or expected
aggregate amount to be paid in the case of "cost plus" contracts) in excess of
$5,000,000, the Company shall have executed and delivered to the Disbursement
Agent such additional security documents (including, without limitation,
financing statements, security agreements, collateral access agreements,
consents of manufacturers, vendors, warehousemen and bailees) required by the
laws of any jurisdiction necessary to grant the Secured Parties such security
interest in such Unincorporated Materials or Contracts);
(e) are insured against casualty, loss and theft for an
amount equal to their replacement costs in accordance with Section 5.13;
(f) the value of Unincorporated Materials located at the
Site but not expected to be incorporated into the Projects within the ensuing
calendar month at any time is not more than $10,000,000;
(g) the amounts paid by the Company in respect of
Unincorporated Materials not at the Site at any one time is not more than
$45,000,000;
(h) the amount of contract deposits paid by the Company in
respect of Unincorporated Materials at any one time is not more than
$30,000,000;
(i) the Construction Consultant shall have confirmed the
accuracy of the certification required in clause (c) above, and in connection
therewith the Construction Consultant may, but shall not be required to, visit
the site of and inspect the Unincorporated Materials at the Company's expense;
and
(j) the Disbursement Agent and the Construction Consultant,
at the request of the Company, may from time to time mutually agree to increase
the thresholds set forth in Sections 3.2.19(f), (g) and (h) above.
3.2.20 Cash Management Account. With respect to an Advance Request
which requests that funds be deposited in the Cash Management Account, the
Company shall have substantiated (a) to the Construction Consultant's
satisfaction (as set forth in the Construction Consultant's Advance
Certificate) in the manner contemplated by the Advance Request, that the
amounts previously drawn by the Company from the Cash Management Account to pay
Hard Costs have, in fact, been used to pay Hard Costs in accordance with the
applicable Project Budget and (b) to the Disbursement Agent's satisfaction in
the manner contemplated by the Advance Request, that the amounts previously
drawn by the Company from the Cash Management Account to pay Soft Costs have,
in fact, been used to pay Soft Costs in accordance with the applicable Project
Budget. After giving effect to the requested Advance, the balance in the Cash
Management Account will not exceed the maximum dollar thresholds permitted from
time to time under Section 2.2.4, in each case, unless approved by the
Disbursement Agent in accordance with Section 2.2.4.
3.2.21 Company's Payment Account. With respect to an Advance
Request which requests that funds be deposited in the Company's Payment
Account, the Company shall have substantiated to the Construction Consultant's
satisfaction (as set forth in the Construction Consultant's Advance
Certificate), in the manner contemplated by the Advance Request, that the
amounts previously withdrawn by the Company from each such Account have been
used to pay Project Costs in the amounts specified in the previous Advance
Requests.
3.2.22 Suspension of Performance. Construction of the Projects is
proceeding in accordance with the Project Schedules and the Final Plans and
Specifications and no Contractor party to any Material Construction Agreements
and no first tier Subcontractor under the Primary Construction Contracts party
to a Subcontract with a total contract amount or value in excess of $15,000,000
has suspended performance or otherwise repudiated its obligation to perform any
duty or obligation under its respective Material Construction Agreements or
Subcontract (unless such suspended or repudiated Material Construction
Agreements or Subcontract is permitted to be, and actually has been, replaced,
or a replacement is determined not to be necessary, pursuant to Section 7.1.5.
3.2.23 Advances with respect to Phase II Project. Prior to the
later of: (a) Phase I Opening Date and (b) the Phase II Approval Date, the
aggregate amount of Advances made relating to Project Costs allocable to the
Phase II Project shall not exceed One Hundred Million Dollars
($100,000,000.00).
3.2.24 Other Documents. The Disbursement Agent and the Bank Agent
shall have received such other documents and evidence as are customary for
transactions of this type as the Bank Agent or the Disbursement Agent may
reasonably request in connection with the Phase II Project.
3.3 CONDITIONS PRECEDENT TO ADVANCES FOR PHASE II PROJECT PRIOR TO
PHASE II APPROVAL DATE. Notwithstanding Section 3.2, after the Closing Date and
prior to the Phase II Approval Date the obligation of the Bank Lenders, the
2014 Notes Indenture Trustee and the Disbursement Agent to make Advances to pay
Project Costs with respect to the Phase II Project are subject only to
satisfaction of each of the conditions precedent set forth in Sections 3.2.2,
3.2.3, 3.2.4, 3.2.7, 3.2.8, 3.2.14, 3.2.15, 3.2.16, 3.2.17, 3.2.20 and 3.2.23
(with such changes to the form of Notice of Advance Request as are reasonably
acceptable to or reasonably required by the Disbursement Agent but including,
at a minimum, an allocation of such Advance among the Funding Sources and
representations by the Company that such Advance will be used to pay Project
Costs relating to the Phase II Project and that each of the foregoing
conditions precedent shall have been satisfied) in form and substances
reasonably satisfactory to the Disbursement Agent in its reasonable discretion.
3.4 CONDITIONS PRECEDENT TO PHASE II APPROVAL DATE. In order to
request that the Phase II Approval Date occur (which request shall be made at
the option of the Company), the Company shall deliver to the Construction
Consultant, the Disbursement Agent, the Bank Agent and each Arranger: (a) at
least seventy-five (75) days before the Phase II Revolving Commitment Sunset
Date, the Phase II Primary Construction Contract and (if applicable) the Phase
II Architect's Agreement and the Phase II Deliverables listed in Sections 3.4.2
and 3.4.3, the conceptual plans and specifications for the Phase II Project and
any other Phase II Deliverable then available (as used in this Section, the
"Initial Phase II Deliverables"), (b) at least thirty (30) days before the
Phase II Revolving Commitment Sunset Date, copies of all Phase II Deliverables
reasonably required by the Construction Consultant in order for the
Construction Consultant to prepare its updated report to be delivered under
Section 3.4.8, and (c) at least ten (10) Banking Days before the Phase II
Revolving Commitment Sunset Date, a Company's Phase II Approval Date
Certificate appropriately completed and duly executed by a Responsible Officer
of the Company, with all attachments thereto, including all Phase II
Deliverables. The Disbursement Agent and the Arrangers shall use reasonable
efforts to review the Initial Phase II Deliverables and respond to the Company
within thirty (30) days after their receipt thereof. The Company shall be
entitled to revise and re-submit the Initial Phase II Deliverables from time to
time prior to the delivery deadline set forth in clause (c) above. If the
Majority of the Arrangers, in consultation with the Construction Consultant,
reasonably determine each of the following conditions precedent to the Phase II
Approval Date shall have been satisfied (in form and substance reasonably
satisfactory to the Majority of the Arrangers) on or prior to the Phase II
Revolving Commitment Sunset Date, then the Bank Agent shall countersign the
Company's Phase II Approval Date Certificate and promptly forward the same to
the Disbursement Agent, the Arrangers, the 2014 Notes Indenture Trustee, the
Construction Consultant and the Company. The Phase II Approval Date shall be
deemed to occur on the date the Bank Agent countersigns the Company's Phase II
Approval Date Certificate.
3.4.1 Insurance.
(a) Policies. Insurance with respect to the Phase II Project
complying with the requirements of Exhibit L shall be in place and in full
force and effect.
(b) The Company Insurance Broker's Certificate. Delivery to
each of the Arrangers and the Disbursement Agent of (i) a certificate,
substantially in the form of Exhibit B-4 attached hereto addressing the
insurance coverage for the Phase II Project or otherwise in form and substance
reasonably satisfactory to the Majority of the Arrangers from the Company's
insurance broker(s), identifying underwriters, type of insurance, insurance
limits and policy terms, listing the special provisions required as set forth
in Exhibit L, describing the insurance obtained and stating that such insurance
is in full force and effect and that all premiums then due thereon have been
paid and (ii) certified copies of all policies evidencing such insurance (or a
binder, commitment or certificates signed by the insurer or a broker authorized
to bind the insurer along with a commitment to deliver certified copies of the
policies within forty-five (45) days after the Phase II Approval Date) meeting
the requirements of Exhibit L.
(c) Company's Insurance Certificate. The Company shall have
identified in the Company's Phase II Approval Date Certificate the type of
insurance, insurance limits and policy terms of any insurance then required to
be obtained by any Contractor under the Material Project Documents with respect
to the Phase II Project then in effect and shall have certified, to the best of
the Company's knowledge, that all insurance required to be obtained by each
Contractor under such Material Project Documents or Exhibit L is in full force
and effect if the same is required to be in effect and that if then required to
be in effect, all premiums then due thereon have been paid, and that such
insurance complies with the requirement of such Material Project Documents and
Exhibit L. The Company shall have delivered to each of the Arrangers and the
Disbursement Agent (i) for each Contractor party to a Material Project Document
with respect to the Phase II Project, certified copies of all policies
evidencing such insurance (or a binder, commitment or certificates signed by
the insurer or a broker authorized to bind the insurer) which insurance shall,
to the extent reasonably available, name the Disbursement Agent, the Collateral
Agent, the Funding Agents and the Lenders as additional insureds.
(d) Insurance Advisor's Certificate. Delivery to the
Arrangers and the Disbursement Agent of the Insurance Advisor's Certificate
addressing the insurance coverage for the Phase II Project, substantially in
the form of Exhibit B-3.
3.4.2 Phase II Project Budget. Delivery to each of the
Disbursement Agent, the Arrangers and the Construction Consultant of a budget,
with Line Item Categories substantially similar to the Phase I Project Budget
(as amended from time to time in accordance with the terms hereof, the "Phase
II Project Budget") for all anticipated Project Costs of the Phase II Project
(including, without limitation, Project Costs incurred prior to, as well as
after, the Phase II Approval Date including closing costs and Debt Service
expected to be incurred from and after the Phase I Opening Date and accruing
with respect to Advances made under the Bank Credit Agreement or from the 2014
Notes Proceeds Account to pay Project Costs allocated to the Phase II Project),
which includes a drawdown schedule for Advances necessary to achieve Final
Completion of the Phase II Project and such other information and supporting
data as any of the Arrangers, the Disbursement Agent or the Construction
Consultant may reasonably require, together with a balanced statement of
sources and uses of proceeds (and any other funds necessary to complete the
Phase II Project), broken down by Facility and Line Item Category, which Phase
II Project Budget, drawdown schedule and statement of sources and uses shall be
reasonably satisfactory to the Construction Consultant, as and to the extent
certified to in the Construction Consultant's Report delivered under Section
3.4.8, and to the Majority of the Arrangers (it being acknowledged that the
level of detail of the Phase II Project Budget shall be commensurate with the
state of completion of the Plans and Specifications relating to the Phase II
Project). The Phase II Project Budget shall include a total contingency of at
least $40,000,000 (including the amounts required to be on deposit in the
Completion Guaranty Deposit Account under Section 5.1.3). On the Phase II
Approval Date, the budget delivered under this Section shall be deemed to be
Exhibit F-4.
3.4.3 Phase II Project Schedule and Schedule of Key Dates.
Delivery to the Disbursement Agent, the Arrangers and the Construction
Consultant of a schedule for construction and completion of the Phase II
Project in a format substantially similar to the Phase I Project Schedule (as
amended from time to time in accordance with the terms hereof, the "Phase II
Project Schedule") which demonstrates that the Phase II Opening Date will occur
before the Phase II Scheduled Opening Date and the Phase II Completion Date
will occur on or before the Phase II Scheduled Completion Date and which is
otherwise reasonably satisfactory to the Construction Consultant, as certified
to in the Construction Consultant's report delivered under Section 3.4.8, and
to the Majority of the Arrangers. On the Phase II Approval Date, the schedule
delivered under this Section shall be deemed to be Exhibit G-2.
3.4.4 Third Party Consents. Delivery to the Disbursement Agent and
the Arrangers of Consents from each of the Phase II Major Contractors and the
Phase II Major Architects with respect to the Phase II Project, each
substantially in the form of Exhibit P or otherwise in form and substance
reasonably satisfactory to the Majority of Arrangers.
3.4.5 Utility Availability. The Construction Consultant shall have
become reasonably satisfied, as certified in the updated report delivered
pursuant to Section 3.4.8, that arrangements, which are reflected accurately in
the Phase II Project Budget, shall have been or will be made under the Material
Project Documents or otherwise on commercially reasonable terms for the
provision of all utilities necessary for the construction, operation and
maintenance of the Phase II Project as contemplated by the Operative Documents
and the Final Plans and Specifications.
3.4.6 Phase II Plans and Specifications. The Company shall have
delivered to the Construction Consultant Plans and Specifications for the Phase
II Project consistent with the minimum standards for the Phase II Project set
forth on Exhibit V-2 and otherwise in form and substance reasonably
satisfactory to the Construction Consultant, as certified to in the
Construction Consultant's report delivered pursuant to Section 3.4.8, and to
the Majority of the Arrangers. Subject to approval of the finalized Plans and
Specifications for the Phase II Project by the proper Governmental Authorities,
such Plans and Specifications for the Phase II Project shall constitute Final
Plans and Specifications.
3.4.7 Contracts for Phase II Project. (i) The Company shall have
executed the Phase II Primary Construction Contract and other guaranteed
maximum price Contracts in respect of fifty percent (50%) of the total costs
reflected in the Phase II Project Budget, (ii) if the Phase II Primary
Construction Contract is not a "design/build" agreement, the Company shall have
executed the Phase II Architect's Agreement for the Phase II Project and (iii)
copies of all such Contracts shall have been delivered to the Construction
Consultant. Each such Contract shall provide that the effectiveness of such
Contract shall be contingent upon the occurrence of the Phase II Approval Date
hereunder. The Company shall have certified in the Company's Phase II Approval
Date Certificate that such Contracts are consistent with the Phase II Project
Budget, the Phase II Project Schedule and the Final Plans and Specifications
for the Phase II Project.
3.4.8 Updated Consultant Certificates and Reports. Each of the
Arrangers and the Disbursement Agent shall have received an updated
Construction Consultant's Report in form and substance reasonably satisfactory
to the Majority of the Arrangers which will address (i) construction progress
and Project Costs spent during the period from the Closing Date through the
Phase II Approval Date, (ii) the Final Plans and Specifications that have been
completed through such period to the extent not theretofore delivered and (iii)
the other Phase II Deliverables relating to construction of the Phase II
Project.
3.4.9 Completion Guaranty Deposit Account. If the Phase I
Substantial Completion Date has previously occurred, then the Completion
Guaranty Deposit Account shall on the Phase II Approval Date have a balance in
an amount equal to at least Thirty Million Dollars ($30,000,000).
3.4.10 Project Costs Incurred To Date. The Company shall have
substantiated (a) to the Construction Consultant's reasonable satisfaction (as
certified to in the Construction Consultant's report delivered pursuant to
Section 3.4.8) that the amounts previously drawn by the Company under Section
3.3 to pay Hard Costs relating to the Phase II Project have, in fact, been used
to pay Hard Costs allocated to the Phase II Project in accordance with the
Phase II Project Budget and (b) to the Disbursement Agent's reasonable
satisfaction that the amounts previously drawn by the Company under Section 3.3
to pay Soft Costs relating to the Phase II Project have, in fact, been used to
pay Soft Costs allocated to the Phase II Project in accordance with the Phase
II Project Budget.
3.4.11 Permits. The Company shall have delivered to the
Disbursement Agent, the Arrangers and the Construction Consultant a schedule of
material Permits that are required or will become required under existing Legal
Requirements by any Loan Party or any Contractor for the ownership,
development, construction, financing or operation of the Phase II Project in
form and substance reasonably satisfactory to the Construction Consultant, as
certified to in the Construction Consultant's Report delivered pursuant to
Section 3.4.8. On the Phase II Approval Date, the schedule delivered under this
Section shall be deemed to be Exhibit J-2 without any further consent of any
party hereto.
3.4.12 Projections. The Company shall have delivered to the
Disbursement Agent and the Arrangers updated Projections for the seven year
period following the Closing Date consistent with the Projections delivered
under Section 3.1.8 or otherwise in form and substance satisfactory to the
Majority of the Arrangers.
3.4.13 Real Estate Appraisals. If applicable law or banking
regulations require a FIRREA appraisal in connection with the approval of the
Phase II Project (in addition to the appraisal provided by the Company on the
Closing Date under Section 3.1.30), then the Bank Agent shall have received
such an appraisal from an independent real estate appraiser in form and
substance satisfactory to the Bank Agent.
3.5 NO WAIVER OR ESTOPPEL.
3.5.1 The occurrence of the Closing Date and making of any Advance
hereunder shall not preclude any Funding Agent from later asserting that (and
enforcing any remedies it may have if) any representation, warranty or
certification made or deemed made by the Company in connection with such
Advance was not true and accurate in all material respects when made. No course
of dealing or waiver by any Funding Agent or Secured Party in connection with
any condition precedent to any Advance under this Agreement or any Facility
Agreement shall impair any right, power or remedy of any such Funding Agent or
Secured Party with respect to any other condition precedent, or be construed to
be a waiver thereof; nor shall the action of any Funding Agent or Secured Party
in respect of any Advance affect or impair any right, power or remedy of any
Funding Agent or Secured Party in respect of any other Advance.
3.5.2 Unless the Company is otherwise notified by a Funding Agent
or Secured Party and without prejudice to the generality of Section 3.5.1, the
right of any Funding Agent or Secured Party to require compliance with any
condition under this Agreement or its respective Facility Agreement which may
be waived by such Funding Agent or Secured Party in respect of any Advance is
expressly preserved for the purpose of any subsequent Advance.
3.6 WAIVER OF CONDITIONS. The Bank Agent (acting under the Bank
Credit Agreement) shall be entitled to waive the conditions precedent under
Sections 3.2 and 3.3 with respect to Advances under the Bank Credit Facility
and from the Company's Funds Account or the 2014 Notes Proceeds Account without
the 2014 Notes Indenture Trustee's consent or the consent of any other Person;
provided, however that the Bank Agent shall not be entitled to waive the
funding allocation between the 2014 Notes Proceeds Account and the Bank Credit
Facility set forth in Section 2.4.1 (clause second). Until such time as the
2014 Notes Proceeds Account is exhausted, the 2014 Notes Indenture Trustee
(acting under the 2014 Notes Indenture) shall be entitled to waive the
conditions precedent under Sections 3.2 or 3.3 with respect to Advances from
the 2014 Notes Proceeds Account without the Bank Agent's or the Bank Lenders'
consent.
3.7 SPECIAL PROCEDURES REGARDING REIMBURSEMENTS TO COMPANY AND ITS
AFFILIATES.
3.7.1 Previously Paid Project Costs. If, at any time and from time
to time, the Company shall be unable to satisfy the conditions precedent to the
initial Advance or any subsequent Advance set forth in Sections 3.2 or 3.3 for
any reason other than as a result of the Projects not being In Balance, the
Company shall be entitled to allow Affiliates of the Company (other than any
Loan Party) to pay Project Costs then due and owing with respect to a
particular Project (which payment shall be deemed to be an additional equity
contribution by such Affiliate to the Company) and to later reimburse such
Affiliates for the payments of such Project Costs (which reimbursement may take
the form of a distribution to such Affiliate) from the Funding Sources at the
time (if any) that the Company is able to satisfy the conditions precedent to
Advances set forth in Sections 3.2 or 3.3, as applicable.
3.7.2 Loss Proceeds. If, at any time:
(a) an Event of Loss occurs that causes the Projects to no
longer be In Balance, and
(b) as a result thereof, and in order to cause the Projects
to be In Balance pending receipt of any Loss Proceeds in connection with such
Event of Loss and the deposit of such Loss Proceeds into the Company's Funds
Account, any Affiliate of the Company (other than any Loan Party) deposits or
causes to be deposited additional equity contributions into the Company's Funds
Account,
then, upon deposit of Loss Proceeds in respect of such Event of Loss into the
Company's Funds Account and so long as no Potential Event of Default or Event
of Default has occurred and is continuing or would occur after giving effect
thereto, the Company shall be entitled to submit a request for an Advance (in
form and substance, and with such attachments, certificates and exhibits, as
reasonably requested by the Disbursement Agent) requesting an Advance to be
used to make a reimbursement to such Affiliate (which reimbursement may take
the form of a distribution to such Affiliate) in an amount equal to the lesser
of (i) the amount of the Loss Proceeds received and deposited into the
Company's Funds Account and (ii) the amount of such additional cash equity
contribution deposited into the Company's Funds Account. Such Advance shall be
made for such purpose so long as the Company satisfies the conditions precedent
set forth in Section 3.2 or 3.3, as applicable.
3.8 CLOSING DATE TRANSACTIONS. For purposes of this Agreement, so long
as the Closing Transactions occur prior to, concurrently with, or immediately
after the Closing, the implementation of such Closing Transactions shall be
deemed to have occurred immediately prior to the Closing and shall not
constitute a breach or violation of any representation or covenant set forth in
this Agreement.
ARTICLE 4.
- REPRESENTATIONS AND WARRANTIES
--------------------------------
The Company makes all of the following representations and warranties
to and in favor of each Funding Agent (so long as such Funding Agent is a party
hereto), the Lenders and the Disbursement Agent as of the Closing Date and the
date of each Advance, except as such representations relate to an earlier date
(in which case such representations and warranties shall be true and correct in
all material respects as of such earlier date). All of these representations
and warranties shall survive the Closing Date and the Advances until, with
respect to each Funding Agent and the Lenders, the Obligations under such
Funding Agent's and Lenders' respective Facilities have been repaid in full in
immediately available funds and their respective Facility Agreements and the
other respective Financing Agreements and the commitments thereunder have
terminated. The following representations and warranties are made (i) as to the
Phase I Project prior to the Phase I Final Completion Date only and (ii) as to
the Phase II Project, after the Phase II Approval Date.
4.1 PERMITS. There are no material Permits that are required or will
become required under existing Legal Requirements by any Loan Party or any
Contractor for the ownership, development, construction, financing or operation
of the Projects, other than: (a) with respect to the Phase I Project, the
Permits described in Exhibit J-1 and (b) with respect to the Phase II Project,
from and after the Phase II Approval Date, Exhibit J-2. Exhibit J-1 and, from
and after the Phase II Approval Date, the Permits described in Exhibit J-2
accurately state the stage in construction by which each such Permit is
required to be obtained. Each material Permit described in Exhibit J-1 and,
from and after the Phase II Approval Date, Exhibit J-2, as required to be
obtained by the date that this representation is deemed to be made is in full
force and effect and is not at such time subject to any appeals or further
proceedings or to any unsatisfied condition (that is required to be satisfied
by the date that this representation is deemed to be made) that could
reasonably be expected to materially and adversely modify any material Permit,
to revoke any material Permit, to restrain or prevent the construction or
operation of the Projects or otherwise impose adverse conditions on the
Projects or the financing contemplated under the Financing Agreements. Each
material Permit described in Exhibit J-1 and, from and after the Phase II
Approval Date, Exhibit J-2, as not required to have been obtained by the date
that this representation is deemed to be made (other than Gaming/Liquor
Licenses and any massage or second-hand dealer licenses to be issued by ▇▇▇▇▇
County) is of a type that is routinely granted on application and compliance
with the conditions for issuance. The Company has no reason to believe that any
material Permit so indicated will not be obtained before it becomes necessary
for the ownership, development, construction, financing or operation of the
Projects or that obtaining such Permit will result in undue expense or delay.
Neither the Company nor any of its Affiliates are in violation of any condition
in any Permit the effect of which could reasonably be expected to have a
Material Adverse Effect. Exhibit J-1 and Exhibit J-2 may be updated from time
to time by the Company in response to changes in Legal Requirements and such
updates shall be effective upon the delivery of such updated exhibits to the
Disbursement Agent and the Construction Consultant.
4.2 IN BALANCE REQUIREMENT. As of each Advance Date the Projects are
In Balance.
4.3 SUFFICIENCY OF INTERESTS AND PROJECT DOCUMENTS.
4.3.1 The Company owns the Site and the Site Easements (other than
the Mortgaged Property encumbered or to be encumbered by ▇▇▇▇ Golf and Wynn
Sunrise) in fee simple. The Company has a valid leasehold estate or easement
interest, as the case may be, in the portions of the Site described in the
Affiliate Real Estate Agreements. Except as permitted by the Bank Credit
Agreement and the 2014 Notes Indenture, ▇▇▇▇ Golf owns the Golf Course Land
(including the Home Site Land and the ▇▇▇▇ Home Site) and the Golf Course Land
Easements in fee simple and Wynn Sunrise owns the ▇▇▇▇ Sunrise Land and Wynn
Sunrise Easements in fee simple.
4.3.2 Each of the Funding Agents has received a true, complete and
correct copy of each of the Material Project Documents in effect or required to
be in effect as of the date this representation is made or deemed made
(including all exhibits, schedules, material side letters and material
disclosure letters referred to therein or delivered pursuant thereto, if any).
A list of (a) all Project Documents that are Contracts and (b) all other
Material Project Documents, in each case, that have been entered into as of the
Closing Date and are necessary to the construction or operation of the Phase I
Project (excluding Contracts entered into in the ordinary course of business
for services or materials that are easily obtained from replacement contractors
or vendors on similar terms and any Project Document with a total contract
amount or value of less than $15,000,000) is attached hereto as Exhibit Q-5.
Each representation and warranty of (a) each Loan Party set forth in Article 4
hereof or in any of the other Financing Agreements shall be true and correct in
all material respects as if made on the Closing Date (except that any
representation and warranty that relates expressly to an earlier date shall be
deemed made only as of such earlier date), (b) each Loan Party set forth in
each Material Project Document was true and correct in all material respects on
the date made in the applicable documents and (c) to the Company's knowledge,
each Major Project Participant (other than any Loan Party) set forth in any of
the Material Project Documents was true and correct in all material respects on
the date made in the applicable document, unless the failure of any such
representation and warranty referred to in clauses (b) or (c) to be true and
correct could not reasonably be expected to have a Material Adverse Effect.
4.3.3 All conditions precedent to the obligations of the
respective parties (other than the Company) under the Material Project
Documents have been satisfied, except for immaterial conditions waived by the
Loan Parties and except for such conditions precedent which by their terms
cannot be met until a later stage in the construction or operation of the
Projects, and the Company has no reason to believe that any such condition
precedent the failure to satisfy which could reasonably be expected to have a
Material Adverse Effect cannot be satisfied on or prior to the appropriate
stage in the development, construction or operation of the Projects.
4.4 PROJECT BUDGET; SUMMARY ANTICIPATED COST REPORT.
4.4.1 The Phase I Project Budget (a) is, to the Company's
knowledge as of the Closing Date, based on assumptions believed by the Company
to be reasonable at the time made as to all legal and factual matters material
to the estimates set forth therein, (b) as of the Closing Date is consistent
with the provisions of the Operative Documents in all material respects, (c)
has been prepared in good faith and with due care, (d) as of the Closing Date
sets forth, for each Line Item Category, the total costs reasonably anticipated
to be incurred to achieve the Phase I Opening Date on or before the Phase I
Scheduled Opening Date, Phase I Substantial Completion on or before the Phase I
Scheduled Substantial Completion Date, Completion of the entire Phase I Project
(including the Entertainment Facility and the Fairway Villas) on or before the
Phase I Scheduled Completion Date and Final Completion of the Phase I Project
thereafter, (e) fairly represents the Company's expectation as to the matters
covered thereby as of its date and (f) as of the Closing Date sets forth a
total amount of Project Costs allocated to the Phase I Project, including
contingencies, which is less than or equal to the Available Funds. On and after
the Phase II Approval Date, the Phase II Project Budget (a) is, to the
Company's knowledge as of the Phase II Approval Date, based on assumptions
believed by the Company to be reasonable at the time made as to all legal and
factual matters material to the estimates set forth therein, (b) as of the
Phase II Approval Date is consistent with the provisions of the Operative
Documents in all material respects, (c) has been and will be prepared in good
faith and with due care, (d) as of the Phase II Approval Date sets forth, for
each Line Item Category allocated to the Phase II Project, the total costs
anticipated to be incurred to achieve the Phase II Opening Date on or before
the Phase II Scheduled Opening Date, Completion of the Phase II Project on or
before the Phase II Scheduled Completion Date and Final Completion of the Phase
II Project thereafter, (e) fairly represents the Company's expectation as to
the matters covered thereby as of its date and (f) as of the Phase II Approval
Date sets forth a total amount of Project Costs for the Phase II Project,
including contingencies, which is less than or equal to the Available Funds for
the Phase II Project.
4.4.2 The Construction Consultant has approved (such approval not
to be unreasonably withheld) any discrepancies between (a) the aggregate
anticipated costs to complete the work under a Primary Construction Contract
set forth in the anticipated cost report to be provided (from time to time) by
the applicable Primary Contractor to the Company and (b) the amount set forth
in column I ("Anticipated Cost") of the "GMP Contract" Line Item Category with
respect to the applicable Project in the Summary Anticipated Cost Report for
such Project.
4.4.3 The Summary Anticipated Cost Reports (as in effect from time
to time) sets forth in column I ("Anticipated Cost") thereof:
(a) until the Phase I Opening Date, for the "Capitalized
Interest and Commitment Fees" Line Item Category in respect of the Phase I
Project Budget, the total amount of interest and commitment fees anticipated to
be accrued on the Facilities through the anticipated Phase I Opening Date;
(b) until the Phase II Opening Date, for the "Capitalized
Interest and Commitment Fees" Line Item Category in respect of the Phase II
Project Budget, the total amount of interest and commitment fees anticipated to
be accrued on the Facilities and allocated to the Phase II Project through the
anticipated Phase II Opening Date;
(c) for each Line Item Category allocated to the Phase I
Project and, from and after the Phase II Approval Date, the Phase II Project,
an aggregate amount equal to the aggregate amount set forth for such Line Item
Category in the applicable Project Budget then in effect;
(d) for each Line Item Category allocated to the Phase I
Project (other than the "Phase I Construction Contingency" Line Item Category)
and from and after the "Phase II Approval Date, the Phase II Project (other
than the "Phase II Construction Contingency" Line Item Category), an amount no
less than the total anticipated costs to be incurred by the Company from the
commencement through the completion of the work contemplated by such Line Item
Category, as determined by the Company and (i) with respect to Hard Costs,
approved by the Disbursement Agent and the Construction Consultant (to the
extent set forth in the Construction Consultant's Advance Certificate dated the
date on which this representation is made or deemed made), and (ii) with
respect to Soft Costs, approved by the Disbursement Agent; and
(e) (i) with respect to costs previously incurred, is true
and correct in all material respects and (ii) with respect to costs anticipated
to be incurred, is based upon good faith estimates and assumptions believed by
Responsible Officers of the Company to be reasonable at the time made.
4.4.4 The Anticipated Cost Reports (as in effect from time
to time):
(a) sets forth in column I ("Anticipated Cost") thereof, for
each Line Item other than any Line Items under the "Phase I Construction
Contingency" Line Item Category and, from and after the Phase II Approval Date,
any Line Items under the "Phase II Construction Contingency," an amount no less
than the total anticipated costs to be incurred by the Company from the
commencement through the completion of the work contemplated by such Line Item,
as determined by the Company and (i) with respect to Hard Costs, approved by
the Construction Consultant in the Construction Consultant's Advance
Certificate dated the date on which this representation is made or deemed made
and (ii) with respect to Soft Costs, approved by the Disbursement Agent;
(b) (i) with respect to costs previously incurred, is true
and correct in all material respects and (ii) with respect to costs anticipated
to be incurred, is based upon good faith estimates and assumptions believed by
Responsible Officers of the Company to be reasonable at the time made; and
(c) accurately reflects, for each Line Item Category of the
applicable Project Budget, the detail underlying the corresponding Summary
Anticipated Cost Report with respect to each Line Item of such Line Item
Category described therein.
4.4.5 The total aggregate amount of Project Costs for the Phase II
Project set forth in column I ("Anticipated Cost") of the Phase II Anticipated
Cost Report (as in effect from time to time) does not exceed the limit set
forth in Section 7.23 of the Bank Credit Agreement.
4.4.6 Each Monthly Requisition Report (as in effect from time to
time):
(a) sets forth in column D ("Revised Project Budget")
thereof the amount allocated to each Line Item Category pursuant to the
applicable Project Budget then in effect;
(b) (i) with respect to costs previously incurred, is true
and correct in all material respects and (ii) with respect to costs anticipated
to be incurred, is based upon good faith estimates and assumptions believed by
Responsible Officers of the Company to be reasonable at the time made.
4.5 PROJECT SCHEDULE. To the Company's knowledge, the Project
Schedules accurately specify in summary form the work that the Company proposes
to complete in each calendar quarter from the Closing Date through the Final
Completion of each Project, all of which are reasonably expected to be
achieved.
4.6 PLANS AND SPECIFICATIONS. The Plans and Specifications (a)
are, to the Company's knowledge as of the Closing Date with respect to the
Phase I Project and, to the Company's knowledge, from and after the Phase II
Approval Date with respect to the Phase II Project, based on assumptions
believed by the Company to be reasonable at the time made as to all legal and
factual matters material thereto, (b) are, and except to the extent permitted
under Sections 6.1 and 6.2 will be from time to time, consistent with the
provisions of the Operative Documents in all material respects and (solely with
respect to the Phase I Project) with the "Premises and Assumptions" (as defined
in the Phase I Primary Construction Contract), (c) have been prepared in good
faith with due care and (d) fairly represent the Company's reasonable
expectation as to the matters covered thereby. The Final Plans and
Specifications as and when prepared (i) have been prepared in good faith with
due care and (ii) are accurate in all material respects and fairly represent
the Company's expectation as to the matters covered thereby.
ARTICLE 5.
- AFFIRMATIVE COVENANTS
-----------------------
The following covenants are made (i) as to the Phase I Project
prior to the Phase I Final Completion Date only and (ii) as to the Phase II
Project, after the Phase II Approval Date only; provided, however, that the
covenants set forth in Section 5.1.1, 5.1.2 and 5.14 shall apply as to the
Phase II Project prior to and after the Phase II Approval Date. Subject to the
preceding sentence, the Company covenants and agrees, with and for the benefit
of the Bank Agent, and, until the 2014 Notes Proceeds Account has been
Exhausted, the 2014 Notes Indenture Trustee, the Lenders and the Disbursement
Agent that it shall
5.1 USE OF PROCEEDS.
5.1.1 Proceeds. Deposit or cause to be deposited into the
Company's Funds Account the amounts required to be deposited therein by the
Company pursuant to Section 2.2.1.
5.1.2 Project Costs. Apply all proceeds described in Section 5.1.1
above and all other amounts received by the Company and/or deposited in the
Company Accounts only to pay Project Costs, reimburse Affiliates to the extent
permitted by this Agreement or pay the Obligations, in each case in accordance
with the terms of this Agreement.
5.1.3 Completion Guaranty Deposit Account. This Section 5.1.3
shall only apply from and after the Phase II Approval Date and shall not be
applicable should the Phase II Approval Date not occur on or before the Phase
II Revolving Commitment Sunset Date. On the Phase I Substantial Completion Date
(if the Phase II Approval Date shall have previously occurred) or on the Phase
II Approval Date (if such date occurs after the Phase I Substantial Completion
Date), the Company shall cause the amount on deposit in the Completion Guaranty
Deposit Account to equal at least Thirty Million Dollars ($30,000,000) for
utilization with respect to the Phase II Project pursuant to Section 5.5.3(c).
5.1.4 Excess Cash Flows. This Section 5.1.4 shall only apply from
and after the Phase II Approval Date and shall not be applicable should the
Phase II Approval Date not occur on or before the Phase II Revolving Commitment
Sunset Date.
(a) (i) Within three (3) Banking Days after the end of each
calendar quarter occurring from and after the Phase I Opening Date and prior to
the Phase II Final Completion Date, deposit or cause to be deposited into the
Company's Funds Account an amount at least equal to the lesser of: (x) the
amount shown under the column "Excess Cash Flow" for such calendar quarter in
the Phase I Projected Excess Cash Flow Schedule and (y) the amount required for
the Projects to be In Balance.
(b) In the event the actual "Excess Cash Flow" (as such term
is defined in the Bank Credit Agreement) generated by the Phase I Project in
any two consecutive full calendar quarters (the second such quarter being
referred to herein as the "Second Shortfall Quarter") from and after the Phase
I Opening Date and prior to the Phase II Final Completion Date is less than the
aggregate amount shown under the column "Excess Cash Flow" for such calendar
quarters, then the Company shall immediately notify the Bank Agent of such
shortfall and no later than thirty (30) days after the end of the second
shortfall quarter, submit to the Bank Agent a revised Phase I Excess Cash Flow
Schedule reflecting the Bank Agent's reasonable expectations (after
consultation with the Company and after taking into consideration, among other
things, the prior performance of the Phase I Project) for the generation of
Excess Cash Flow by the Phase I Project from such date through the Phase II
Final Completion Date. Such revised schedule shall thereafter be deemed to be
the "Phase I Projected Excess Cash Flow Schedule" for purposes of this
Agreement without any further consent of any party hereto.
5.2 DILIGENT CONSTRUCTION OF THE PROJECTS. Take or cause to be
taken all action, make or cause to be made all contracts and do or cause to be
done all things necessary to construct the Projects diligently in accordance
with the Primary Construction Contracts, the Final Plans and Specifications and
the other Operative Documents (except for delays caused by any Event of Force
Majeure).
5.3 REPORTS; COOPERATION. Deliver to the Funding Agents, the
Construction Consultant and the Disbursement Agent together with each month's
Advance Request (or if no Advance Request is submitted during any calendar
month, within twenty (20) days following the end of such calendar month):
(a) a monthly status report describing in reasonable detail
the progress of the construction of the Projects since the immediately
preceding report hereunder, including without limitation, the cost incurred to
the end of such month allocated between the Phase I Project and the Phase II
Project, an estimate of the time and cost required to complete each Project and
such other information which any Funding Agent or the Disbursement Agent may
reasonably request including information and reports reasonably requested by
the Construction Consultant;
(b) a monthly status report describing in reasonable detail
the progress of the leasing activities with respect to the Projects, if any,
and all leases, if any, that have been entered into since the immediately
preceding report hereunder;
(c) all progress reports provided by each Contractor
pursuant to the Material Construction Agreements and such additional
information as the Bank Agent or the Disbursement Agent may reasonably request;
and
(d) copies of any applicable bailee or Lien waivers
delivered pursuant to Section 5.13.1.3 of the Phase I Primary Construction
Contract or any similar provision of the Phase II Primary Construction
Contract.
5.4 NOTICES. Promptly, upon an officer of the Company acquiring notice
or giving notice, or upon an officer of the Company obtaining knowledge
thereof, as the case may be, provide to the Disbursement Agent, the
Construction Consultant and the Funding Agents written notice of:
5.4.1 Any Event of Default or Potential Event of Default of which
it has knowledge, specifically stating that an Event of Default or Potential
Event of Default has occurred and describing such Event of Default or Potential
Event of Default and any action being taken or proposed to be taken with
respect to such Event of Default or Potential Event of Default.
5.4.2 Any event, occurrence or circumstance which reasonably could
be expected to cause the Projects to not be In Balance or render the Company
incapable of, or prevent the Company from (a) achieving the Phase I Opening
Date on or before the Phase I Scheduled Opening Date, (b) achieving Phase I
Substantial Completion on or before the Phase I Scheduled Substantial
Completion Date, (c) achieving Completion of the entire Phase I Project
(including the Entertainment Facility and the Fairway Villas) on or before the
Phase I Scheduled Completion Date, (d) achieving the Phase II Opening Date on
or before the Phase II Scheduled Opening Date, (e) achieving the Completion of
the Phase II Project on or before the Phase II Scheduled Completion Date, or
(f) meeting any material obligation of the Company under the Primary
Construction Contracts or the other Material Project Documents as and when
required thereunder.
5.4.3 Any termination or event of default or notice thereof under
any Material Project Document or any notice under Nevada Revised Statutes
Section 624.610 issued by any Contractor.
5.4.4 Any change in the Responsible Officers of the Company, and
such notice shall include a certified specimen signature of any new officer so
appointed and, if requested by any Funding Agent or the Disbursement Agent,
satisfactory evidence of the authority of such new Responsible Officer.
5.4.5 Any proposed material change in the nature or scope of the
Projects or the business or operations of the Company.
5.4.6 Any notice of any schedule delay delivered under the Primary
Construction Contracts and all remedial plans and updates thereof.
5.4.7 Any other event or development which could reasonably be
expected to have a Material Adverse Effect.
5.4.8 "Substantial Completion" or "Final Completion" certificates
or notices thereof delivered under any Material Project Document.
5.5 CERTAIN TRANSFERS FROM COMPANY ACCOUNTS.
5.5.1 Event of Default; Bankruptcy. (a) Upon the request of the
Collateral Agent following the occurrence of an Event of Default, (b)
immediately upon the dissolution, liquidation or Bankruptcy of the Completion
Guarantor or (c) upon the request of the Collateral Agent following the
occurrence of a breach by the Completion Guarantor of any of its covenants and
agreements under the Completion Guaranty, cause the Completion Guarantor to
instruct the Disbursement Agent to transfer to the Company's Funds Account from
the Completion Guaranty Deposit Account an amount equal to the amount of funds
then on deposit in the Completion Guaranty Deposit Account. In the event that
the Completion Guarantor fails to so instruct, the Disbursement Agent shall be
entitled to transfer such funds from the Completion Guaranty Deposit Account to
the Company's Funds Account, which transfer shall be deemed to be a dividend by
the Completion Guarantor to the Company. In the event that after the transfer
of such funds, such Event of Default or breach by the Completion Guarantor is
cured or waived, and the Company obtains additional Advances hereunder, such
funds shall be returned to the Completion Guaranty Deposit Account (minus any
portion of such funds that has been expended prior to the date such Event of
Default or breach is cured or waived) and shall be treated as a capital
contribution by the Company in the Completion Guarantor.
5.5.2 Contingencies. At such times, if ever, as the Projects shall
not be In Balance, the Company shall deposit or cause to be deposited in the
Company's Funds Account in cash, funds (other than from the Completion Guaranty
Deposit Account or the Project Liquidity Reserve Account) in an amount that
would cause the Projects to be In Balance.
5.5.3 Completion Guaranty Deposit Account; Project Liquidity
Reserve Account.
(a) At such times, if ever, as no other source of funds is
available to the Company for the timely payment of Project Costs allocated to a
particular Project in the applicable Project Budget, the Company shall, to the
extent permitted to do so pursuant to Section 5.5.3(b) or Section 5.5.3(c),
instruct the Disbursement Agent to transfer from the Completion Guaranty
Deposit Account and/or the Project Liquidity Reserve Account to the
Disbursement Account funds in the amount required to timely pay all Project
Costs then due and payable. The Company shall not apply any funds on deposit in
the Completion Guaranty Deposit Account or the Project Liquidity Reserve
Account except as permitted in Sections 5.5.1, 5.5.3(b), 5.5.3(c) and 5.14.2
and (solely with respect to the Project Liquidity Reserve Account) Section
2.2.8.
(b) The Company may withdraw funds from the Completion
Guaranty Deposit Account and/or Project Liquidity Reserve Account for the sole
purpose of transferring such funds to the Disbursement Account to be Advanced
to pay Project Costs related to the Phase I Project first, from the Completion
Guaranty Deposit Account, and second, when no funds remain in the Completion
Guaranty Deposit Account, from the Project Liquidity Reserve Account but only
if the following condition shall have been satisfied:
The amount of funds withdrawn shall not exceed $80,000,000
amortized from and after the Closing Date at a rate such that,
from time to time:
(A) the ratio of:
-------------
(x) the amortized portion of the $80,000,000 to
(y) $80,000,000 shall equal --
-----------
(B) the ratio of:
-------------
(x) Hard Costs incurred since the date
construction of the Phase I Project commenced in accordance with the Phase I
Project Budget and allocated to the following Line Item Categories with respect
to the Phase I Project: "GMP Contract," "Interior
Furnishings/Signage/Electronic Systems," "Miscellaneous Capital Projects,"
"Golf Course" and "Parking Garage" to
--
(y) the total amount of Hard Costs set forth in
the Phase I Project Budget (as then in effect) under the following Line Item
Categories allocated to the Phase I Project: "GMP Contract," "Interior
Furnishings/Signage/Electronic Systems," "Miscellaneous Capital Projects,"
"Golf Course" and "Parking Garage"; and
(c) From and after the Phase II Fifty Percent Completion
Date, the Company may withdraw any funds from the Completion Guaranty Deposit
Account for the sole purpose of transferring such funds to the Company's Funds
Account to be Advanced thereafter to pay Project Costs related to the Phase II
Project but only if the following condition shall have been satisfied:
The amount of funds withdrawn shall not exceed $30,000,000
amortized from and after the Phase II Fifty Percent Completion Date at a
rate such that, from time to time:
(A) the ratio of:
-------------
(x) the amortized portion of the $30,000,000 to
(y) $30,000,000 shall equal --
-----------
(B) the ratio of:
-------------
(x) Hard Costs incurred from and after the Phase
II Fifty Percent Completion Date in accordance with the Phase II Project Budget
(excluding Hard Costs allocated to the "Owner FF&E" Line Item Category and any
other Hard Costs reasonably approved by the Construction Consultant) to
--
(y) fifty percent (50%) of the total amount of
Hard Costs set forth in the Phase II Project Budget (as then in effect)
(excluding Hard Costs allocated to the "Owner FF&E" Line Item Category and any
other Hard Costs reasonably approved by the Construction Consultant).
5.6 MATERIAL PROJECT DOCUMENTS AND PERMITS. Deliver to the
Disbursement Agent, the Funding Agents and the Construction Consultant
promptly, but in no event later than twenty (20) days after the receipt thereof
by the Company, copies of (a) all Material Project Documents and Permits
described on Exhibit J-1 or J-2 that are obtained or entered into by the
Company or any other Loan Party after the Closing Date and (b) any material
amendment, supplement or other material modification to any Permit received by
the Company or any other Loan Party after the Closing Date.
5.7 STORAGE REQUIREMENTS FOR OFF-SITE MATERIALS AND DEPOSITS. Cause
all Unincorporated Materials to be stored and identified in a manner that would
satisfy the conditions set forth in clauses (a) through (j) of Section 3.2.19
in all material respects.
5.8 PLANS AND SPECIFICATIONS. Provide to the Disbursement Agent and
the Construction Consultant copies of, and maintain at the Site, a complete set
of Final Plans and Specifications, as in effect from time to time.
5.9 PAYMENT AND PERFORMANCE BONDS. Cause (a) the Phase I Primary
Contractor to provide a Payment and Performance Bond to secure its obligations
under the Phase I Primary Construction Contract; (b) the Phase I Primary
Contractor to cause each Subcontractor (working under a Subcontract in effect
on the Closing Date with a total contract amount or value of more than
$25,000,000) to provide a Payment and Performance Bond to secure its
obligations under its respective Subcontract; (c) the Phase II Primary
Contractor to, within the later of: (i) ten (10) days after execution of the
Phase II Primary Construction Contract and (ii) the date construction of the
Phase II Project commences, provide a Payment and Performance Bond to secure
its obligations under the Phase II Primary Construction Contract; and (d) each
Phase II Primary Contractor to cause each Subcontractor (working under a
Subcontract with a total contract amount or value of more than $25,000,000),
within fifteen (15) calendar days after execution of its Subcontract, to
provide a Payment and Performance Bond to secure its obligations under its
respective Subcontract. Each such Payment and Performance Bond shall name the
Collateral Agent as additional obligee and shall be in substantially the form
of Exhibit O hereto or as otherwise approved by the Disbursement Agent.
Promptly after receipt thereof, deliver the originals of each such Payment and
Performance Bonds to the Disbursement Agent with a copy to the Construction
Consultant.
5.10 RETAINAGE AMOUNTS. Withhold from each Contractor performing labor
at the Site (excluding the Phase I Parking Structure Contractor and any other
Contractor reasonably approved by Disbursement Agent (in consultant with the
Construction Consultant)), and cause each such Contractor to withhold from its
first tier Subcontractors performing labor at the Site, a retainage equal to
ten (10%) of each payment made to such Contractor or Subcontractor pursuant to
its respective Contract or Subcontract; provided, however, that at such time as
(i) the applicable Contractor or Subcontractor shall have completed fifty
percent (50%) of the work under its respective Contract or Subcontract and (ii)
if a Payment and Performance Bond is required under Section 5.9 with respect to
such Contract or Subcontract, the Company shall have obtained a "Consent of
Surety to Reduction in or Partial Release of Retainage" (AIA form G707A) from
the surety that issued such Payment and Performance Bond and delivered such
consent to the Disbursement Agent with a copy to the Construction Consultant,
then the retainage withheld may be reduced from ten (10%) percent to five (5%)
percent of the contract value as adjusted by change orders, if any.
5.11 CONSTRUCTION CONSULTANT.
(a) Cooperate and use commercially reasonable efforts to
cause the Project Architects, the Primary Contractors, the Phase I Golf Course
Designer, the Phase I Aqua Theater and Showroom Designer, the Phase I Golf
Course Contractor, the Phase II Major Architects and the Phase II Major
Contractors to cooperate with the Construction Consultant in the performance of
the Construction Consultant's duties hereunder and under the Construction
Consultant Engagement Agreement. Without limiting the generality of the
foregoing, the Company shall and shall use commercially reasonable efforts to
cause the Project Architects, the Primary Contractors, the Phase I Golf Course
Designer, the Phase I Aqua Theater and Showroom Designer, the Phase I Golf
Course Contractor, the Phase II Major Architects and the Phase II Major
Contractors to: (i) communicate with and promptly provide all invoices,
documents, plans and other information reasonably requested by the Construction
Consultant relating to the work, (ii) authorize any material subcontractors or
subconsultants of any tier to communicate directly with the Construction
Consultant regarding the progress of the work, (iii) provide the Construction
Consultant with access to the Site and, subject to required safety precautions,
the construction areas, (iv) solely in the case of the Primary Contractors,
provide the Construction Consultant with reasonable working space and access to
telephone, copying and telecopying equipment and (v) otherwise facilitate the
Construction Consultant's review of the construction of the Projects and
preparation of the certificates required hereby.
(b) Pay or cause to be paid to the Construction Consultant
out of the Advances made hereunder all amounts required hereunder and under the
Construction Consultant Engagement Agreement.
(c) In addition to any other consultation required hereunder,
following the end of each quarter, upon the request of the Bank Agent, consult
with the Bank Agent regarding any adverse event or condition identified in any
report prepared by the Construction Consultant.
(d) Deliver to the Construction Consultant, no less frequently \
than every thirty (30) days, the Phase I Anticipated Cost Report and, from and
after the Phase II Approval Date, the Phase II Anticipated Cost Report, in each
case, as in effect from time to time.
5.12 GOVERNMENTAL AND ENVIRONMENTAL REPORTS. Deliver to the Funding
Agents, the Disbursement Agent and the Construction Consultant copies of all
material reports required to be filed by the Company with any Governmental
Authority.
5.13 INSURANCE. The Company shall, and shall cause each Loan Party to,
at all times maintain in full force and effect the insurance policies and
programs listed on Exhibit L. The Company shall have delivered to the
Disbursement Agent (i) within 45 days after the Closing Date for each
Contractor party to a Material Project Document in effect on the Closing Date
and (ii) for any Material Project Document entered into after the Closing Date,
within 45 days after execution of such Material Project Document, certified
copies of all policies evidencing such insurance (or a binder, commitment or
certificates signed by the insurer or a broker authorized to bind the insurer)
which insurance shall, to the extent reasonably available, name the
Disbursement Agent, the Collateral Agent, the Funding Agents and the Lenders as
additional insureds.
5.14 APPLICATION OF INSURANCE AND CONDEMNATION PROCEEDS.
5.14.1 Event of Loss. If any Event of Loss shall occur with
respect to a Project or any other asset of any Loan Party, the Company shall
and shall cause each other Loan Party (a) promptly upon discovery or receipt of
notice thereof to provide written notice thereof to the Disbursement Agent with
respect to any Event of Loss over One Hundred Thousand Dollars ($100,000), and
(b) diligently to pursue all its rights to compensation against all relevant
insurers, reinsurers and/or Governmental Authorities, as applicable, in respect
of such event to the extent that the Company or such Loan Party has a
reasonable basis for a claim for compensation or reimbursement, including,
without limitation, under any insurance policy required to be maintained
hereunder. 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 Company hereunder (collectively, "Loss Proceeds") shall be
applied as provided in this Section.
5.14.2 Application of Loss Proceeds.
(a) Phase I Project. The Company shall direct that all
Loss Proceeds in respect of the Phase I Project at any time prior to the Phase
I Substantial Completion Date in respect of such Project shall be paid by the
insurers, reinsurers, Governmental Authorities or other payors directly to the
Disbursement Agent for deposit in the Company's Funds Account. In the event
that for a period of one hundred twenty (120) days after any such Loss Proceeds
are deposited in the Company's Funds Account, the Company is not permitted
pursuant to the terms hereof to obtain Advances of such Loss Proceeds to pay
Project Costs allocated to the Phase I Project in the Phase I Project Budget,
then the Company shall use all other such proceeds and funds on deposit in the
Completion Guaranty Deposit Account and the Project Liquidity Reserve Account
to prepay the Loans and the 2014 Notes in accordance with the Bank Credit
Agreement and the 2014 Notes Indenture, respectively, in each case, subject to
the Intercreditor Agreement.
(b) Phase II Project. The Company shall direct that
all Loss Proceeds in respect of the Phase II Project at any time prior to the
Phase II Completion Date in respect of such Project shall be paid by the
insurers, reinsurers, Governmental Authorities or other payors directly to the
Disbursement Agent for deposit in the Company's Funds Account. In the event
that for a period of one hundred twenty (120) days after any such Loss Proceeds
are deposited in the Company's Funds Account, the Company is not permitted
pursuant to the terms hereof to obtain Advances of such Loss Proceeds to pay
Project Costs allocated to the Phase II Project in the Phase II Project Budget,
then the Company shall use all other such proceeds and funds on deposit in the
Completion Guaranty Deposit Account and the Project Liquidity Reserve Account
to prepay the Loans and the 2014 Notes in accordance with the Bank Credit
Agreement and the 2014 Notes Indenture, respectively, in each case, subject to
the Intercreditor Agreement.
5.14.3 Loss Proceeds Received by Other Parties. If any Loss
Proceeds required to be deposited into the Company's Funds Account under
Section 5.14.2 above are paid directly to the Company, any affiliate of the
Company or any Funding Agent or Lender by any insurer, reinsurer, Governmental
Authority, any landlord or grantor under the Affiliate Real Estate Agreements
or such other payor, (i) such Loss Proceeds shall be received in trust for the
Disbursement Agent, (ii) such Loss Proceeds shall be segregated from other
funds of the Company or such other Person and (iii) the Company or such other
Person shall pay (or, if applicable, the Company shall cause such of its
affiliates to pay) such Loss Proceeds over to the Disbursement Agent in the
same form as received (with any necessary endorsement) for deposit in the
Company's Funds Account to be applied as provided in Section 5.14.2 above.
5.15 COMPLIANCE WITH MATERIAL PROJECT DOCUMENTS. The Company shall
comply, in all material respects, with its obligations, and enforce all of its
respective rights under all Material Project Documents, except where the
failure to comply or enforce such rights, as the case may be, could not
reasonably be expected to have a Material Adverse Effect.
5.16 UTILITY EASEMENT MODIFICATIONS. The Company shall diligently
cause all utility or other easements that would interfere in any material
respect with the construction or maintenance of the improvements contemplated
with respect to the Projects to be removed as expeditiously as possible. In any
event, the Company shall remove such easements before they interfere in any
material respect with the prosecution of the work involved with the Phase I
Project or the Phase II Project in accordance with the Project Schedules, and
in any event, prior to the Phase I Opening Date (for easements affecting the
Phase I Project) and prior to the Phase II Opening Date (for easements
affecting the Phase II Project).
5.17 CONSTRUCTION ON SITE. The Company shall construct (a) the Golf
Course only on the Golf Course Land, (b) the Phase II Project only on the Phase
II Land and (c) the Phase I Project (excluding the Golf Course) on the Site
(excluding the Golf Course Land and the Phase II Land).
ARTICLE 6.
- NEGATIVE COVENANTS
--------------------
The following covenants are made (i) as to the Phase I Project prior
to the Phase I Final Completion Date only and (ii) as to the Phase II Project,
after the Phase II Approval Date only; provided, however, that the covenants
set forth in Section 6.1.1, 6.4, 6.5 and 6.6 shall apply to the Phase II
Project both prior to and after the Phase II Approval Date. Subject to the
preceding sentence, the Company covenants and agrees, with and for the benefit
of the Bank Agent, and, until the 2014 Notes Proceeds Account has been
Exhausted, the 2014 Notes Indenture Trustee, the Lenders and the Disbursement
Agent that it shall not:
6.1 WAIVER, MODIFICATION, TERMINATION AND AMENDMENT OF PERMITS AND
CONTRACTS. Enter into, amend, modify, terminate (except in accordance with its
terms), supplement or waive a right or consent to the amendment, modification,
termination (except in accordance with its terms), supplement or waiver of any
of the provisions of, or give any consent under (a) any Permit, the effect of
which could reasonably be expected to have a Material Adverse Effect, (b) the
Construction Guaranty or any material Payment and Performance Bond without the
consent of the Bank Agent (such consent not to be unreasonably withheld) unless
it could not reasonably be expected to have an adverse effect on the Company or
any Lender or (c) any other Contract, the effect of which could reasonably be
expected to have a Material Adverse Effect; and then, in each case, only in
accordance with the procedures set forth in Section 6.1.1 or 6.1.2 below, as
applicable. Subject to the foregoing, the Company may:
6.1.1 enter into Contracts consistent with the Final Plans and
Specifications, the applicable Project Schedule and the applicable Project
Budget, as each is in effect from time to time. Each such Contract shall be
permitted so long as the Company shall have satisfied the following conditions:
(a) if entering into such Contract will result in an amendment to the Project
Budget, the Company has complied with the requirements of Section 6.3; (b) if
entering into such Contract will have the effect of a Scope Change, the Company
has complied with the provisions of Section 6.2; (c) if entering into such
Contract will cause the Project to fail to be In Balance, the Company has
complied with the requirements of Section 5.5; (d) if a Payment and Performance
Bond is required under Section 5.9 with respect to such Contract, the Company
shall have obtained and delivered such Payment and Performance Bond to the
Disbursement Agent within the time period required under Section 5.9; and (e)
for Contracts relating to the Phase II Project with a total contract amount or
value in excess of $100,000,000, the Majority of the Arrangers have approved
such Contract (such approval not to be unreasonably withheld or delayed); and
6.1.2 from time to time, amend any Contracts so long as (a) if
such amendment will result in an amendment to the Project Budget, the Company
has complied with the requirements of Section 6.3; (b) if such amendment will
have the effect of a Scope Change, the Company has complied with the provisions
of Section 6.2; (c) if such amendment will cause the Project to fail to be In
Balance, the Company has complied with the requirements of Section 5.5; (d) the
Company and the Contractor have executed and delivered the contract amendment
(or, in the case of any amendment to a purchase order, such amendment shall
have otherwise become enforceable against the Company and the Contractor
thereunder); and (e) if a Payment and Performance Bond is required under
Section 5.9 with respect to such Contract after giving effect to the amendment,
the Company shall have obtained the written consent of the surety that issued
such Payment and Performance Bond to such amendment and delivered such consent
to the Disbursement Agent with a copy to the Construction Consultant.
6.2 SCOPE CHANGES; COMPLETION; DRAWINGS.
6.2.1 Scope Changes. Without obtaining the Required Scope Change
Approval, direct, consent to or enter into any Scope Change if such Scope
Change:
(a) will cause the Projects not to be In Balance;
(b) is not, in the reasonable judgment of (i) the Company
(in the case of any De Minimis Scope Change) and (ii) the Construction
Consultant (in the case of any Scope Change that is not a De Minimis Scope
Change), consistent with the requirements of Exhibits V-1 and V-2;
(c) in the reasonable judgment of the (i) the Company (in
the case of any De Minimis Scope Change) and (ii) the Construction Consultant
(in the case of any Scope Change that is not a De Minimis Scope Change) (based
on its experience, familiarity and review of the Projects and representations
provided by the Company, the Contractors and Subcontractors), could reasonably
be expected to delay the Phase I Opening Date beyond the Phase I Scheduled
Opening Date, the Phase I Substantial Completion Date beyond the Phase I
Scheduled Substantial Completion Date, the Phase I Completion Date beyond the
Phase I Scheduled Completion Date, the Phase II Opening Date beyond the Phase
II Scheduled Opening Date or the Phase II Completion Date beyond the Phase II
Scheduled Completion Date;
(d) in the reasonable judgment of (i) the Company (in the
case of any De Minimis Scope Change) and (ii) the Construction Consultant (in
the case of any Scope Change that is not a De Minimis Scope Change), could
reasonably be expected to result in any materially adverse modification of, or
materially impair the enforceability of, any material warranty under any
Material Construction Agreement;
(e) in the reasonable judgment of (i) the Company (in the
case of any De Minimis Scope Change) and (ii) the Construction Consultant (in
the case of any Scope Change that is not a De Minimis Scope Change), could
reasonably be expected to present a significant risk of the revocation or
material adverse modification of any material Permit;
(f) in the reasonable judgment of (i) the Company (in the
case of any De Minimis Scope Change) and (ii) the Construction Consultant or
the Project Architects (in the case of any Scope Change that is not a De
Minimis Scope Change), could reasonably be expected to cause the Projects or
any portion thereof not to comply with Legal Requirements in any material
respect (provided that the Construction Consultant shall be entitled to
determine that no violation of any Legal Requirement will occur on the basis of
a certification by the Company to such effect unless the Construction
Consultant is aware of any inaccuracies in such certification); or
(g) in the reasonable judgment of the Company could
reasonably be expected to result in a material adverse modification,
cancellation or termination of any insurance policy required to be maintained
by the Company pursuant to Section 5.13.
Prior to implementing any Scope Change (other than a De
Minimis Scope Change or the acceptance of non-conforming work), the Company
shall comply with the provisions of Section 6.1. Prior to implementing any
Scope Change (including a DeMinimis Scope Change but excluding the acceptance
of non-conforming work) (x) under the Phase I Primary Construction Contract,
the Company shall comply with Section 18.10.1 of the Phase I Primary
Construction Contract (including obtaining the written consent of the surety
under the Phase I Primary Contractors Payment and Performance Bond to such
Scope Change) and (y) under any other Contract, as to which the Company is
required to obtain a Payment and Performance Bond pursuant to Section 5.9, the
Company shall obtain the written consent of the surety under the relevant
Payment and Performance Bond to such Scope Change (if required under the
applicable Payment and Performance Bond).
6.2.2 Substantial and Final Completion. Accept (or be deemed to
have confirmed) any notice of "Substantial Completion" or "Final Completion" of
all or any portion of the Projects issued by any Contractor under any Material
Construction Agreement (including, without limitation, Sections 12.1 and 12.2
of the Phase I Primary Construction Contract) without the written approval of
the Construction Consultant and the Project Architects (provided that the
Construction Consultant and Project Architects shall act with due diligence and
as promptly as possible in making their determination to approve or disapprove
and the Disbursement Agent shall instruct the Construction Consultant to
approve such notice if the conditions to "Substantial Completion" or "Final
Completion" set forth in such Material Construction Agreement have been
satisfied).
6.2.3 Reduction of Retainage Amounts. Reduce the level of
Retainage Amounts withheld pursuant to Section 5.6 of the Phase I Primary
Construction Contract.
6.2.4 Failure to Withhold Retainage Amounts. Fail to retain as
Retainage Amounts pursuant to Section 5.7 of the Phase I Primary Construction
Contract a sum equal to at least one hundred and fifty percent (150%) of the
costs reasonably estimated by the Company (and confirmed by the Construction
Consultant) as necessary to complete "Punch List Items" (as defined in the
Phase I Primary Construction Contract) unless such retention is not permitted
under applicable laws.
6.2.5 Acceptance of Non-Conforming Work. Knowingly accept any
non-conforming "Work" (as defined in the Phase I Primary Construction Contract)
pursuant to Section 10.9 of the Phase I Primary Construction Contract unless
the Company shall have complied with the requirements of Section 6.2.1.
6.2.6 Approval of the Schedule of Values. (a) Approve any change,
modification or supplement to the "Schedule of Values" in effect on the Closing
Date for the Phase I Project pursuant to Section 5.1 of the Phase I Primary
Construction Contract or approve the initial "Schedule of Values" (or
comparable provision) for the Phase II Project under the Phase II Primary
Construction Contract, or any change, modification or supplement thereto,
without, in each case, the consent of the Construction Consultant or (b) fail
to direct any Primary Contractors to adjust the Schedule of Values for any
portion of the Projects as contemplated in the last sentence of Section 5.1 of
the Phase I Primary Construction Contract or any similar provision of the Phase
II Primary Construction Contract as and when required by the Construction
Consultant.
6.2.7 Increase in Contractor's Fee. Accept or agree to any
increase in the "Contractor's Fee" (as defined in the Phase I Primary
Construction Contract) for any reason, except to the extent required pursuant
to Section 18.5.2 of the Phase I Primary Construction Contract.
6.3 PROJECT BUDGET AND PROJECT SCHEDULE AMENDMENT. Amend, modify,
allocate, re-allocate or supplement or consent to the amendment, modification,
allocation, re-allocation or supplementation of, any of the Line Item
Categories or other provisions of the Project Budgets or modify or extend the
Phase I Scheduled Opening Date, the Phase I Scheduled Substantial Completion
Date, the Phase I Scheduled Completion Date, the Phase II Scheduled Opening
Date or the Phase II Scheduled Completion Date, except as follows:
6.3.1 Permitted Budget Amendments.
(a) Concurrently with the implementation of any Scope
Change, the Company shall submit a Project Budget/Schedule Amendment
Certificate and amend the applicable Project Budget in accordance with the
provisions of Section 6.3.1(c) to the extent necessary so that the amount set
forth therein for each Line Item Category shall reflect all Scope Changes that
have been made to such Line Item Category.
(b) The Company may from time to time amend the Project
Budgets in accordance with the provisions of Section 6.3.1(c) in order to
increase, decrease or otherwise reallocate amounts allocated to specific Line
Item Categories.
(c) (i) The Company shall implement any amendment to the
Project Budgets by delivering to the Disbursement Agent a Project
Budget/Schedule Amendment Certificate together with all exhibits, attachments
and certificates required thereby, each duly completed and executed. Such
Project Budget/Schedule Amendment Certificate shall describe with particularity
the Line Item Category increases, decreases, contingency allocations, and other
proposed amendments to the Project Budgets.
(ii) Increases to the aggregate amount budgeted for any
Line Item Category allocated to any particular Project in the applicable
Project Budget will only be permitted to the extent of (A) allocation of
Realized Savings obtained in a different Line Item Category, (B) allocation of
the previously unallocated amounts under the "Construction Contingency" Line
Item Category for such Project (so long as after giving effect to such
allocation the Unallocated Phase I Contingency Balance will equal or exceed the
Required Phase I Minimum Contingency and the Unallocated Phase II Contingency
Balance will equal or exceed the Required Phase II Minimum Contingency) or (C)
allocation of an increase in Available Funds including additional funds
deposited in the Company's Funds Account.
(iii) Decreases to any Line Item Category allocated to
any particular Project in the applicable Project Budget will only be permitted
upon obtaining Realized Savings in such Line Item Category.
(d) Increases and decreases to particular Line Items set
forth in column C ("Current Budget") of the Anticipated Cost Reports or Column
D ("Revised Project Budget") of the Monthly Requisition Reports shall be
permitted to the extent not inconsistent with the foregoing provisions of
Sections 6.3.1(a) and (c) (except that the Company is not required to submit a
Project Budget/Schedule Amendment Certificate in connection therewith);
provided that increases to the "Hard Cost Construction Contingency" Line Item
and the "Soft Cost Construction Contingency" Line Item allocated to any
particular Project in the applicable Project Budget shall only be permitted to
the extent of (x) an allocation of Realized Savings obtained in any Line Item
Category allocated to such Project in the applicable Project Budget or (y) an
increase in Available Funds including additional funds deposited in the
Company's Funds Account or (z) solely with respect to the Phase II Project
Budget after the Phase I Completion Date has occurred, an allocation of
Realized Savings obtained in any Line Item Category in the Phase I Project
Budget.
6.3.2 Permitted Schedule Amendments.
(a) The Company may, from time to time, amend the Project
Schedules (i) to extend the Phase I Scheduled Opening Date, the Phase I
Scheduled Substantial Completion Date or the Phase I Scheduled Completion Date,
but not beyond the Outside Phase I Opening Deadline, the Outside Phase I
Substantial Completion Deadline and the Outside Phase I Completion Deadline,
respectively, and/or (ii) to extend the Phase II Scheduled Opening Date or the
Phase II Scheduled Completion Date but not beyond the Outside Phase II Opening
Deadline and the Outside Phase II Completion Deadline, respectively, by
delivering to the Disbursement Agent a Project Budget/Schedule Amendment
Certificate (a) containing a revised Project Schedule reflecting the new Phase
I Scheduled Opening Date, Phase I Scheduled Substantial Completion Date, Phase
I Scheduled Completion Date, Phase II Scheduled Opening Date or Phase II
Scheduled Completion Date, as the case may be, and (b) complying with the
provisions of Section 6.3.1(c) with respect to the changes in the Project
Budgets that will result from such extension.
(b) If an Event of Force Majeure occurs, then the Company
shall be permitted to extend the Outside Phase I Opening Deadline to the extent
that the Company certifies in writing, and the Construction Consultant confirms
in its reasonable judgment, to the Disbursement Agent that such extension is
reasonably necessary to overcome any delays caused by the Event of Force
Majeure, provided that no such extension may extend beyond December 30, 2005.
If an Event of Force Majeure occurs, then the Company shall be permitted to
extend the Outside Phase I Substantial Completion Deadline to the extent that
the Company certifies in writing, and the Construction Consultant confirms in
its reasonable judgment, to the Disbursement Agent that such extension is
reasonably necessary to overcome any delays caused by the Event of Force
Majeure, provided that no such extension may extend beyond December 30, 2005.
If an Event of Force Majeure occurs, then the Company shall be permitted to
extend the Outside Phase I Completion Deadline to the extent that the Company
certifies in writing, and the Construction Consultant confirms in its
reasonable judgment, to the Disbursement Agent that such extension is
reasonably necessary to overcome any delays caused by the Event of Force
Majeure, provided that no such extension may extend beyond March 30, 2006.
(c) If an Event of Force Majeure occurs, then the Company
shall be permitted to extend the Outside Phase II Opening Deadline to the
extent that the Company certifies in writing, and the Construction Consultant
confirms in its reasonable judgment, to the Disbursement Agent that such
extension is reasonably necessary to overcome any delays caused by the Event of
Force Majeure, provided that no such extension may extend beyond June 30, 2008.
If an Event of Force Majeure occurs, then the Company shall be permitted to
extend the Outside Phase II Completion Deadline to the extent that the Company
certifies in writing, and the Construction Consultant confirms in its
reasonable judgment, to the Disbursement Agent that such extension is
reasonably necessary to overcome any delays caused by the Event of Force
Majeure, provided that no such extension may extend beyond September 30, 2008.
6.3.3 Amendment Certificates. Upon submission of the Project
Budget/Schedule Amendment Certificate for a particular Project to the
Disbursement Agent, together with all exhibits, attachments and certificates
required pursuant thereto, each duly executed, such amendment shall become
effective hereunder, and the applicable Project Budget and, if applicable, the
applicable Project Schedule and the Phase I Scheduled Opening Date, the Phase I
Scheduled Substantial Completion Date, the Phase I Scheduled Completion Date,
the Phase II Scheduled Opening Date or Phase II Scheduled Completion Date, as
the case may be, shall thereafter be as so amended.
6.4 OPENING. Cause or permit the Opening Date for either Project to
occur unless each of the Opening Conditions for such Project has been satisfied
or waived by the Majority of the Arrangers and (i) the Company has delivered to
the Disbursement Agent a certificate substantially in the form of Exhibit S-1
(or as otherwise approved by the Majority of the Arrangers) and has caused the
applicable Primary Contractor to deliver to the Disbursement Agent a
certificate in the form of Exhibit S-3 or S-5, as the case may be, (ii) the
Construction Consultant has delivered to the Disbursement Agent a certificate
in the form of Exhibit S-2 to this Agreement (or as otherwise approved by the
Majority of the Arrangers) and (iii) the applicable Project Architect has
delivered to the Disbursement Agent a certificate substantially in the form of
Exhibit S-4 or S-6, (or as otherwise approved by the Majority of the Arrangers)
as the case may be, to this Agreement; provided, however, that the Company
shall be permitted to open the Phase I Project at such time as the Phase I
Project (excluding the Entertainment Facility and the Fairway Villas) satisfies
the Opening Conditions and upon delivery of the certificates required above;
provided, further, that the Company shall be permitted to open the Phase II
Project at such time as the Phase II Project (excluding the Retail Facility)
satisfies the Opening Conditions and upon delivery of the certificates required
above. The Company shall thereafter open the Entertainment Facility and the
Fairway Villas for business upon the Company's reasonable determination that
the Phase I Project (including the Entertainment Facility and the Fairway
Villas) satisfies the Opening Conditions. If the Company has elected to build
the Retail Facility as part of the Phase II Project, then the Company shall
thereafter open the Retail Facility for business upon the Company's reasonable
determination that the Phase II Project (including the Retail Facility)
satisfies the Opening Conditions.
6.5 ADDITIONAL CONSTRUCTION AGREEMENTS. Enter into or become a party
to any Additional Construction Agreement except (a) with the prior written
consent of the Bank Agent or as permitted under Section 6.1 and (b) if such
Additional Construction Agreement is a Material Construction Agreement, upon
delivery to the Bank Agent of a Consent from each third party to such
Additional Construction Agreement; provided that the consent of the Bank Agent
shall not be required for a Loan Party to enter into Additional Construction
Agreements (i) with Persons other than Affiliates of Loan Parties and (ii)
pursuant to which the Loan Parties as a whole will incur obligations or
liabilities with a value of not more than $15,000,000 per year with respect to
any Additional Construction Agreement.
6.6 UNINCORPORATED MATERIALS. Cause or permit (a) the value of
Unincorporated Materials located at the Site but not expected to be
incorporated into the Projects within the ensuing calendar month to exceed
$10,000,000 at any time, (b) the amounts paid by the Company in respect of
Unincorporated Materials not located at the Site to exceed a value of
$45,000,000 at any time or (c) the amount of contract deposits paid by the
Company in respect of Unincorporated Materials to exceed a value of $30,000,000
at any time. The foregoing limits on Unincorporated Materials may be increased
from time to time to an amount mutually agreed upon among the Company, the
Construction Consultant and the Disbursement Agent.
ARTICLE 7.
- EVENTS OF DEFAULT
-------------------
7.1 EVENTS OF DEFAULT. The occurrence of any of the following events
shall constitute an event of default ("Event of Default") hereunder:
7.1.1 Other Financing Documents. The occurrence of an "Event of
Default" under and as defined in the (a) Bank Credit Agreement or (b) 2014
Notes Indenture.
7.1.2 Failure to Demonstrate Balancing. The failure of the
Projects to be In Balance and such failure shall continue for thirty (30) days
without being cured; provided, however, that the cure period may be extended as
is reasonably necessary beyond such 30 day period if such failure is the result
of any Event of Force Majeure (but in no event shall such cure period, as
extended, be longer than sixty (60) days in the aggregate).
7.1.3 Failure to Deliver Advance Request. The failure, for sixty
(60) consecutive days, of the Company to submit an Advance Request which is
approved by the Disbursement Agent; provided, however, that the cure period may
be extended as is reasonably necessary beyond such 60 day period if such
failure is the result of any Event of Force Majeure (but in no event shall such
cure period, as extended, be longer than ninety (90) days in the aggregate).
7.1.4 Covenants.
(a) The Company shall fail to perform or observe any of its
obligations under Sections 5.1, 5.5.1, 5.5.3, 5.9, 5.14, 6.1, 6.2, 6.3 or 6.4
hereof; or
(b) The Company shall fail, or shall fail to cause each Loan
Party, to at all times maintain in full force and effect the insurance policies
and programs listed on Exhibit L (except for automobile, workers compensation,
pollution liability and design errors and omissions insurance); or
(c) The Company shall fail, or shall fail to cause each Loan
Party, to at all times maintain in full force and effect the insurance policies
and programs with respect to automobile, workers compensation, pollution
liability and design errors and omissions insurance listed on Exhibit L where
such default shall not have been remedied within thirty (30) days after the
earlier of (i) the Company or any other Loan Party becoming aware of such
breach or default or (ii) notice of such failure from the Disbursement Agent or
any Funding Agent to the Company; or
(d) The Company shall fail to perform or observe any of its
obligations under Articles 5 or 6 hereof (other than those listed in Sections
7.1.4(a), (b) or (c) above) where such default shall not have been remedied
within thirty (30) days after the earlier of (i) the Company or any other Loan
Party becoming aware of such breach or default or (ii) notice of such failure
from the Disbursement Agent or any Funding Agent to the Company; provided,
however, solely with respect to Section 5.5.2, the cure period may be extended
as is reasonably necessary beyond such 30 day period if such failure is the
result of any Event of Force Majeure (but in no event shall such cure period,
as extended, be longer than sixty (60) days in the aggregate).
7.1.5 Breach of Material Construction Agreements.
(a) Any Loan Party shall breach or default (after giving
effect to applicable cure periods and grace periods) under any term, condition,
provision, covenant, representation or warranty contained in any Material
Construction Agreement in any material respect and such breach or default shall
continue unremedied for thirty (30) days after the earlier of (i) the Company
or any other Loan Party becoming aware of such breach or default or (ii)
receipt by the Company or any other Loan Party of notice from the Disbursement
Agent or any Funding Agent of such breach or default; provided, however, that
if the breach or default is reasonably susceptible to cure within forty-five
(45) days but cannot be cured within such thirty (30) days despite such other
party's good faith and diligent efforts to do so, the cure period shall be
extended as is reasonably necessary beyond such thirty (30) day period (but in
no event shall such cure period, as extended, be longer than forty-five (45)
days in the aggregate) if remedial action reasonably likely to result in cure
is promptly instituted within such thirty (30) day period and is thereafter
diligently pursued until the breach or default is corrected; or
(b) Any party (other than any Loan Party) shall breach or
default (after giving effect to applicable cure periods and grace periods) in
any material respect under any term, condition, provision, covenant,
representation or warranty contained in any Primary Construction Contract, any
Construction Guaranty or any other Contract with a total contract amount or
value in excess of $100,000,000 and such breach or default shall continue
unremedied for thirty (30) days after the earlier of (i) the Company or any
other Loan Party becoming aware of such breach or default or (ii) receipt by
the Company or any other Loan Party of notice from any Funding Agent of such
breach or default; provided, however, that (A) if the breach or default is
reasonably susceptible to cure within ninety (90) days but cannot be cured
within such thirty (30) days despite such other party's good faith and diligent
efforts to do so, the cure period shall be extended as is reasonably necessary
beyond such thirty (30) day period (but in no event shall such cure period, as
extended, be longer than ninety (90) days in the aggregate) if remedial action
reasonably likely to result in cure is promptly instituted within such thirty
(30) day period and is thereafter diligently pursued until the breach or
default is corrected and (B) no Potential Event of Default or Event of Default
shall be deemed to have occurred as a result of such breach if the Company
provides written notice to the Funding Agents promptly upon (but in no event
more than five (5) Banking Days after) the Company or any Loan Party becoming
aware of such breach that the Company intends to replace such Contract (or that
replacement is not necessary) and (1) within ninety (90) days of such breach
the Company obtains a replacement obligor or obligors reasonably acceptable to
the Disbursement Agent (in consultation with the Construction Consultant) for
the affected party (if in the judgment of the Disbursement Agent (in
consultation with the Construction Consultant) a replacement is necessary), (2)
the Company enters into a replacement Contract on terms no less beneficial,
taken as a whole, to the Company and the Secured Parties in any material
respect than the Contract so breached within ninety (90) days of such breach
(if in the reasonable judgment of the Disbursement Agent (in consultation with
the Construction Consultant) a replacement is necessary); provided, however
that the replacement Contract may require the Company to pay amounts to the
replacement obligor in excess of those that would have been payable under the
breached Contract if such additional payments in the reasonable judgment of the
Disbursement Agent, in consultation with the Construction Consultant, do not
cause the Projects to fail to be In Balance and (3) such breach or default,
after considering any replacement obligor and replacement Contract and the time
required to implement such replacement, has not had and could not reasonably be
expected to have a Material Adverse Effect; or
(c) Any party (other than any Loan Party) shall breach or
default (after giving effect to applicable cure periods and grace periods) in
any material respect under any term, condition, provision, covenant,
representation or warranty contained in any other Contract the effect of which
could reasonably be expected to have a Material Adverse Effect and such breach
or default shall continue unremedied for thirty (30) days after the earlier of
(i) the Company or any other Loan Party becoming aware of such breach or
default or (ii) receipt by the Company or any other Loan Party of notice from
any Funding Agent of such breach or default; provided, however, that (A) if the
breach or default is reasonably susceptible to cure within ninety (90) days but
cannot be cured within such thirty (30) days despite such other party's good
faith and diligent efforts to do so, the cure period shall be extended as is
reasonably necessary beyond such thirty (30) day period (but in no event shall
such cure period, as extended, be longer than ninety (90) days in the
aggregate) if remedial action reasonably likely to result in cure is promptly
instituted within such thirty (30) day period and is thereafter diligently
pursued until the breach or default is corrected and (B) no Potential Event of
Default or Event of Default shall be deemed to have occurred as a result of
such breach if the Company provides written notice to the Funding Agents
promptly upon (but in no event more than five (5) Banking Days after) the
Company or any Loan Party becoming aware of such breach that the Company
intends to replace such Contract (or that replacement is not necessary) and (1)
within ninety (90) days of such breach the Company obtains a replacement
obligor or obligors reasonably acceptable to the Disbursement Agent (in
consultation with the Construction Consultant) for the affected party (if in
the judgment of the Disbursement Agent (in consultation with the Construction
Consultant) a replacement is necessary), (2) the Company enters into a
replacement Contract on terms no less beneficial, taken as a whole, to the
Company and the Secured Parties in any material respect than the Contract so
breached within ninety (90) days of such breach (if in the reasonable judgment
of the Disbursement Agent (in consultation with the Construction Consultant) a
replacement is necessary); provided, however that the replacement Contract may
require the Company to pay amounts to the replacement obligor in excess of
those that would have been payable under the breached Contract if such
additional payments in the reasonable judgment of the Disbursement Agent, in
consultation with the Construction Consultant, do not cause the Projects to
fail to be In Balance and (3) such breach or default, after considering any
replacement obligor and replacement Contract and the time required to implement
such replacement, has not had and could not reasonably be expected to have a
Material Adverse Effect; or
(d) The Company shall have received a "stop work" notice
under Nevada Revised Statutes Section 624.610 with respect to any Contract with
a total contract amount or value in excess of $15,000,000.
7.1.6 Termination or Invalidity of Material Construction
Agreements; Abandonment of Projects.
(a) Any of the Material Construction Agreements shall have
terminated (other than in accordance with its terms), become invalid or
illegal, or otherwise ceased to be in full force and effect, provided that with
respect to any Material Construction Agreement other than the Primary
Construction Contracts or the Construction Guaranty, no Potential Event of
Default or Event of Default shall be deemed to have occurred as a result of
such termination if the Company provides written notice to the Funding Agents
promptly upon (but in no event more than five (5) Banking Days after) the
Company, the Construction Guarantor or any Loan Party becoming aware of such
Material Construction Agreement ceasing to be in full force or effect that the
Company intends to replace such Material Construction Agreement (or that
replacement is not necessary) and (i) within ninety (90) days of such event the
Company obtains a replacement obligor or obligors reasonably acceptable to the
Disbursement Agent (in consultation with the Construction Consultant), for the
affected party (if in the judgment of the Disbursement Agent (in consultation
with the Construction Consultant) a replacement is necessary), (ii) the Company
enters into a replacement Material Construction Agreement, on terms no less
beneficial, taken as a whole, to the Company and the Secured Parties in any
material respect than the Material Construction Agreement so terminated, within
ninety (90) days of such termination (if in the reasonable judgment of the
Disbursement Agent (in consultation with the Construction Consultant) a
replacement is necessary); provided, however that the replacement Material
Construction Agreement may require the Company to pay additional amounts to the
replacement obligor that would have otherwise been payable under the terminated
Material Construction Agreement if such additional payments in the reasonable
judgment of the Disbursement Agent, in consultation with the Construction
Consultant, do not cause the Company to fail to be In Balance and (iii) such
termination, after considering any replacement obligor and replacement Material
Construction Agreement and the time required to implement such replacement, has
not had and could not reasonably be expected to have a Material Adverse Effect;
(b) The Company shall abandon the Phase I Project for a
period of forty-five (45) days, or, if the Phase II Approval Date occurs, the
Company shall abandon the Phase II Project for a period of 45 days, or
otherwise cease to pursue the operations of either such Project for a period of
forty-five (45) days; provided, however, that the cure period may be extended
as is reasonably necessary beyond such forty-five (45)-day period as a result
of any Event of Force Majeure (but in no event shall such cure period, as
extended, be longer than ninety (90) days in the aggregate).
7.1.7 Schedule; Completion.
(a) Failure to achieve Phase I Opening Date on or before the
Phase I Scheduled Opening Date;
(b) Failure to achieve Phase I Substantial Completion Date
on or before the Phase I Scheduled Substantial Completion Date;
(c) Failure to achieve the Phase I Completion Date on or
before the Phase I Scheduled Completion Date;
(d) If the Phase II Approval Date occurs, failure to achieve
Phase II Opening Date on or before the Phase II Scheduled Opening Date; or
(e) If the Phase II Approval Date occurs, failure to achieve
the Phase II Completion Date on or before the Phase II Scheduled Completion
Date.
7.2 REMEDIES. Upon the occurrence and during the continuation of an
Event of Default, the Funding Agents and the Disbursement Agent may, without
further notice refuse to make any Advances or make any payments from any
Account or other funds held by the Disbursement Agent by or on behalf of the
Company.
The Bank Agent (acting under the Bank Credit Agreement) shall be
entitled to waive any Potential Event of Default or Event of Default without
the consent of the 2014 Notes Indenture Trustee or any other Person. If the
Bank Agent so waives any Potential Event of Default or Event of Default, such
Potential Event of Default or Event of Default shall cease to continue for all
purposes of the Disbursement Agreement and the other Financing Agreements;
provided that any waiver by the Bank Agent (acting under the Bank Credit
Agreement) of any Potential Event of Default or Event of Default under this
Agreement shall not constitute a waiver of any default or event of default
arising under the 2014 Notes Indenture (other than any event of default arising
as a result of a "cross-default" to the Disbursement Agreement under Clauses
(h) and (i) of the definition of "Events of Default" set forth in the 2014
Notes Indenture). Any cure or waiver of any "Event of Default" under the Bank
Credit Agreement that is effective under the terms of the Bank Credit Agreement
shall automatically cure an Event of Default under clause (a) of Section 7.1.1.
Any cure or waiver of any "Event of Default" under the 2014 Notes Indenture
that is effective under the terms of the 2014 Notes Indenture shall
automatically cure an Event of Default under clause (b) of Section 7.1.1.
ARTICLE 8.
- CONSULTANTS AND REPORTS
-------------------------
8.1 REMOVAL AND FEES. Only the Bank Agent in its sole discretion may
remove from time to time the Independent Consultants and upon such removal a
replacement acceptable to the Bank Agent (in its sole discretion) and the
Company (so long as no Event of Default then exists) shall be appointed. Notice
of any replacement Independent Consultant shall be given by the Bank Agent to
the 2014 Notes Indenture Trustee, the Disbursement Agent, the Company and the
Independent Consultant being replaced. All reasonable fees and out-of-pocket
expenses of the Independent Consultants (whether the original ones or
replacements) shall be paid by the Company. The Bank Agent will reasonably
consult with the Company on a regular basis with respect to on-going costs of
the Independent Consultants and unless no Event of Default shall have occurred
and be continuing, if requested by the Company, the Bank Agent may agree with
the Company that such costs be subject to a reasonable fee cap. The 2014 Notes
Indenture Trustee shall not have the right to remove an Independent Consultant
or appoint a replacement. The Company has reviewed the Construction
Consultant's Engagement Agreement and hereby agrees to reimburse the
Disbursement Agent and the Funding Agents for the fees of the Construction
Consultant set forth therein.
8.2 DUTIES. The Disbursement Agent shall cause the Independent
Consultants to be contractually obligated to the Disbursement Agent, the Bank
Agent and the 2014 Notes Indenture Trustee to carry out the activities required
of them in this Agreement and in the Construction Consultant Engagement
Agreement and as otherwise requested by such Funding Agents. The Company
acknowledges that it will not have any cause of action or claim against any
Independent Consultant resulting from any decision made or not made, any action
taken or not taken or any advice given by such Independent Consultant in the
due performance in good faith of its duties, except to the extent arising from
the gross negligence or willful misconduct of such Independent Consultant.
8.3 ACTS OF DISBURSEMENT AGENT. The Disbursement Agent will take such
actions as any Funding Agent or the Company may reasonably request to cause the
Independent Consultants to act diligently in the issuance of all certificates
required to be delivered by the Independent Consultants hereunder and to
otherwise fulfill their obligations to the Disbursement Agent, the Bank Agent
and the 2014 Notes Indenture Trustee as described in the first sentence of
Section 8.2.
ARTICLE 9.
- THE DISBURSEMENT AGENT
------------------------
9.1 APPOINTMENT AND ACCEPTANCE. Subject to and on the terms and
conditions of this Agreement, the Bank Agent, each Bank Lender (by its
execution and delivery of the Bank Credit Agreement or acceptance of an
assignment thereof in accordance with the terms of the Bank Credit Agreement)
and the 2014 Notes Indenture Trustee hereby irrevocably appoint and authorize
the Disbursement Agent to act on their behalf hereunder and under the
Collateral Account Agreements. The Disbursement Agent accepts such appointment
and agrees to exercise commercially reasonable efforts and utilize commercially
prudent practices in the performance of its duties hereunder consistent with
those of similar institutions holding collateral, administering construction
loans and disbursing disbursement control funds.
9.2 DUTIES AND LIABILITIES OF THE DISBURSEMENT AGENT GENERALLY.
9.2.1 Commencing upon execution and delivery hereof, the
Disbursement Agent shall have the right to meet periodically at reasonable
times, however no less frequently than quarterly, upon three (3) Banking Days'
notice, with representatives of the Company, the Construction Consultant, the
Primary Contractors and the Project Architects. The Disbursement Agent may (or
may instruct the Construction Consultant to) perform such inspections of the
Projects as it deems reasonably appropriate in the performance of its duties
hereunder. In addition, the Disbursement Agent shall have the right at
reasonable times upon prior notice to review all relevant information
(including Project Documents) in the Company's possession supporting the
amendments to the Project Budgets, amendments to any Project Documents, the
Company's Advance Requests and any certificates in support of any of the
foregoing, to inspect materials stored on the Mortgaged Property or at any
other location, to review the insurance required pursuant to the terms of the
Financing Agreements, to confirm receipt of endorsements from the Title Insurer
insuring the continuing priority of the liens of the Deeds of Trust as security
for each Advance hereunder, and to examine the Plans and Specifications and all
shop drawings relating to the Projects. The Disbursement Agent is authorized to
contact (or to instruct the Construction Consultant to contact) any Contractor
for purposes of confirming receipt of progress payments. From time to time, at
the request of the Disbursement Agent, the Company shall make available to the
Disbursement Agent the Project Schedule. The Company agrees to cooperate with
the Disbursement Agent in assisting the Disbursement Agent to perform its
duties hereunder and to take such further steps as the Disbursement Agent
reasonably may request in order to facilitate the Disbursement Agent's
performance of its obligations hereunder.
9.2.2 Powers, Rights and Remedies. The Disbursement Agent is
authorized to take such actions and to exercise such powers, rights and
remedies under this Agreement as are specifically delegated or granted to the
Disbursement Agent by the terms hereof, together with such powers, rights and
remedies as are reasonably incidental thereto. The Disbursement Agent agrees to
act in accordance with the instructions of the Bank Agent and in the absence of
such instructions shall take such actions or refrain from acting as it deems
reasonable subject to any express requirements of this Agreement. The
Disbursement Agent shall not act in accordance with the instructions of the
2014 Notes Indenture Trustee, and the 2014 Notes Indenture Trustee shall not
give any instructions to the Disbursement Agent (except, in each case, for
instructions relating to the 2014 Notes Proceeds Account). The Bank Agent shall
be entitled to give instructions to the Disbursement Agent without consulting
with the 2014 Notes Indenture Trustee (except for instructions relating to the
2014 Notes Proceeds Account).
9.2.3 No Risk of Own Funds. None of the provisions of this
Agreement shall require the Disbursement Agent to expend or risk its own funds
or otherwise to incur any personal financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers
(in the absence of gross negligence or willful misconduct on the part of the
Disbursement Agent, as finally, judicially determined by a court of competent
jurisdiction) if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
9.2.4 No Imputed Knowledge. Notwithstanding anything to the
contrary in this Agreement, if the entity acting as Disbursement Agent also
serves as the Collateral Agent or Funding Agent under the Financing Agreements,
and except if such functions shall be performed by the same individuals within
such entity, to the maximum extent permitted by law, the Disbursement Agent
shall not be deemed to have any knowledge of any fact known to such entity in
its capacity as the Collateral Agent or Funding Agent by reason of the fact
that the Disbursement Agent and the Collateral Agent or Funding Agent, as the
case may be, are the same entity. Except as aforesaid, no knowledge of the
collateral agent or any Funding Agent shall be attributed to the Disbursement
Agent. The Disbursement Agent's duties and functions hereunder shall in no way
impair or affect any of the rights and powers of, or impose any duties or
obligations upon the Disbursement Agent in its capacity as Bank Agent or as
Lender. With respect to its participation in the extensions of credit under the
Bank Credit Agreement, the Disbursement Agent shall have the same rights and
powers thereunder as any other Funding Agent or Lender and may exercise the
same as though it were not performing its duties and functions hereunder. The
Disbursement Agent and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of banking, trust, financial advisory or other
business with the Company or any of its Affiliates, and may accept fees and
other consideration from the Company for services in connection with this
Agreement and otherwise without having to account for the same to the Lenders.
Each party hereto acknowledges that, as of the Closing Date, Deutsche Bank
Trust Company Americas and its Affiliates are, in addition to acting as the
Disbursement Agent hereunder, also acting as the initial Bank Agent, Securities
Intermediary, Collateral Agent, investment manager on behalf of the Loan
Parties, and may be a Bank Lender.
9.3 PARTICULAR DUTIES AND LIABILITIES OF THE DISBURSEMENT AGENT.
9.3.1 Reliance For Instructions. The Disbursement Agent may, from
time to time, in the event that any matter arises as to which specific
instructions are not provided herein, request directions from the Bank Agent
with respect to such matters and may refuse to act until so instructed and
shall be fully protected in acting or refusing to act in accordance with such
instructions.
9.3.2 Notice of Events of Default. The Disbursement Agent shall
notify each Funding Agent of an Event of Default or a Potential Event of
Default known to it (which has not been cured or waived).
9.3.3 Reliance Generally. The Disbursement Agent may rely and
shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval or other paper or document believed by it on reasonable grounds
to be genuine and to have been signed or presented by the proper party or
parties. Notwithstanding anything else in this Agreement to the contrary, in
performing its duties hereunder (including, without limitation, approving any
Advance Requests, approving any increases to the Cash Management Account
maximum dollar thresholds and confirming that any of the Opening, Phase I
Substantial Completion, Completion, Final Completion or Completion Guaranty
Release Dates have occurred), making any other determinations or taking any
other actions hereunder, the Disbursement Agent shall be entitled to rely on
certifications from the Company (and, where contemplated herein, certifications
from third parties, including the Construction Consultant, the Project
Architects, the Primary Contractors or any other Contractor) as to satisfaction
of any requirements and/or conditions imposed by this Agreement. The
Disbursement Agent shall not be required to conduct any independent
investigation as to the accuracy, veracity or completeness of any such items or
to investigate any other facts or circumstances to verify compliance by the
Company with its obligations hereunder.
9.3.4 Court Orders. The Disbursement Agent is authorized, in its
exclusive discretion, to obey and comply with all writs, orders, judgments or
decrees issued by any court or administrative agency affecting any money,
documents or things held by the Disbursement Agent. The Disbursement Agent
shall not be liable to any of the parties hereto, their successors, heirs or
personal representatives by reason of the Disbursement Agent's compliance with
such writs, orders, judgments or decrees, notwithstanding the fact that such
writ, order, judgment or decree is later reversed, modified, set aside or
vacated.
9.3.5 Requests, etc. of the Company. Any request, direction, order
or demand of the Company mentioned herein shall be sufficiently evidenced
(unless other evidence in respect thereof be herein specifically prescribed) by
an instrument signed by one of its Responsible Officers, and any resolution of
the Company may be evidenced to the Disbursement Agent by a copy thereof
certified by the Secretary or an Assistant Secretary of the Company.
9.3.6 Reliance on Opinions of Counsel. The Disbursement Agent may
consult with counsel and any written opinion of counsel shall be full and
complete authorization and protection in respect of any action taken or omitted
by it hereunder in good faith and in accordance with such opinion of counsel
except to the extent the Disbursement Agent is grossly negligent or engages in
willful misconduct as finally judicially determined by a court of competent
jurisdiction.
9.3.7 Action through Agents or Attorneys. The Disbursement Agent
may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys appointed with
due care, and the Disbursement Agent shall not be responsible for any act on
the part of any agent or attorney so appointed.
9.3.8 Disagreements.
(a) In the event of any disagreement between a Funding Agent
and the Company or any other Person or Persons whether or not named herein, and
adverse claims or demands are made in connection with or for any of the
investments or amounts held pursuant to this Agreement, the Disbursement Agent
shall be entitled at its option to refuse to comply with any such claim or
demand so long as such disagreement shall continue, and in so doing, the
Disbursement Agent shall not be or become liable for damages or interest to
such Funding Agent or the Company or any other Person or Persons for the
Disbursement Agent's failure or refusal to comply with such conflicting or
adverse claims or demands. The Disbursement Agent shall be entitled to continue
so to refrain and refuse so to act until:
(i) the rights of the adverse claimants have been fully
adjudicated in the court assuming and having jurisdiction of the claimants and
the investments and amounts held pursuant to this Agreement; or
(ii) all differences shall have been adjusted by
agreement, and the Disbursement Agent shall have been notified thereof in
writing by all persons deemed by the Disbursement Agent, in its sole
discretion, to have an interest therein.
(b) In addition, the Disbursement Agent, in its sole
discretion, may file a suit in interpleader for the purpose of having the
respective rights of all claimants adjudicated, and may deposit with the court
all of the investments and amounts held pursuant to this Agreement. The Company
agrees to pay all costs and reasonable counsel fees incurred by the
Disbursement Agent in such action, said costs and fees to be included in the
judgment in any such action.
9.4 SEGREGATION OF FUNDS AND PROPERTY INTEREST. Monies and other
property received by the Disbursement Agent shall, until used or applied as
herein provided, be held for the purposes for which they were received, and
shall be segregated from other funds except to the extent required herein or by
law. To the extent that the Disbursement Agent also acts as securities
intermediary, (a) the Disbursement Agent shall note in its records that all
funds and other assets in the Company Accounts, have been pledged to the
Collateral Agent for the benefit of all or certain of the Secured Parties and
that the Disbursement Agent is holding such items for the Collateral Agent, (b)
the Disbursement Agent shall note in its records that all funds and other
assets in the Bank Proceeds Account have been pledged to the Collateral Agent
for the benefit of the Bank Lenders and (c) the Disbursement Agent shall note
in its records that all funds and other assets in the 2014 Notes Proceeds
Account have been pledged to the Collateral Agent for the benefit of the 2014
Noteholders. Accordingly, all such funds and assets shall not be within the
bankruptcy "estate" (as such term is used in 11 U.S.C. ss. 541) of the
Disbursement Agent. The Disbursement Agent shall not be under any liability for
interest on any monies received by it hereunder, except as otherwise specified
in this Agreement. The Disbursement Agent hereby expressly waives any right of
set-off or similar right it may have against or in relation to the Company
Accounts and any monies, Permitted Investments or other amounts on deposit
therein.
9.5 COMPENSATION AND REIMBURSEMENT OF THE DISBURSEMENT AGENT. The
Company covenants and agrees to pay to the Disbursement Agent from time to
time, and the Disbursement Agent shall be entitled to, the fees set forth in
that certain letter agreement between the Company and the Disbursement Agent,
and the Company will further pay or reimburse the Disbursement Agent upon its
request for all reasonable out-of-pocket expenses, disbursements and advances
incurred or made by the Disbursement Agent in accordance herewith. The
obligations of the Company under this Section 9.5 to compensate the
Disbursement Agent and to pay or reimburse the Disbursement Agent for
reasonable expenses, disbursements and advances shall constitute additional
Obligations (and shall be deemed permitted indebtedness under each Financing
Agreement) hereunder and shall survive the satisfaction and discharge of this
Agreement.
9.6 QUALIFICATION OF THE DISBURSEMENT AGENT. The Disbursement Agent
hereunder shall at all times be a corporation with offices in New York City,
New York which (a) is authorized to exercise corporation trust powers, (b) is
subject to supervision or examination by the applicable Governmental Authority,
(c) shall have a combined capital and surplus of at least Five Hundred Million
Dollars ($500,000,000), (d) shall have a long-term credit rating of not less
than A- or A3, respectively, by S&P or ▇▇▇▇▇'▇; and provided, that any such
bank with a long-term credit rating of A- or A3 shall not cease to be eligible
to act as Disbursement Agent upon a downward change in either such rating of no
more than one category or grade of such minimum rating, as the case may be; and
(e) with respect to any replacement of the Person acting as Disbursement Agent
as of the Closing Date, shall be acceptable to each of the Bank Agent and the
Company (so long as no Potential Event of Default or Event of Default then
exists) and the 2014 Notes Indenture Trustee acting pursuant to the
Intercreditor Agreement. In case at any time the Disbursement Agent shall cease
to be eligible in accordance with the provisions of this Section 9.6, the
Disbursement Agent shall resign immediately upon appointment of a successor
Disbursement Agent in accordance with Section 9.7.
9.7 RESIGNATION AND REMOVAL OF THE DISBURSEMENT AGENT. The Bank Agent
and the 2014 Notes Indenture Trustee, acting pursuant to the Intercreditor
Agreement, shall have the right should they reasonably determine that the
Disbursement Agent has breached or failed to perform its obligations hereunder
or has engaged in willful misconduct or gross negligence, upon the expiration
of thirty (30) days following delivery of written notice of substitution to the
Disbursement Agent and the Company, to cause the Disbursement Agent to be
relieved of its duties hereunder and to select a substitute disbursement agent
to serve hereunder. The Disbursement Agent may resign at any time upon sixty
(60) days' written notice to all parties hereto. Such resignation shall take
effect upon the earlier of receipt by the Disbursement Agent of an instrument
of acceptance executed by a successor disbursement agent meeting the
qualifications set forth in Section 9.6 and consented to by the other parties
hereto or sixty (60) days after the giving of such notice. Upon selection of a
substitute disbursement agent, the Funding Agent and the Company and the
substitute disbursement agent shall enter into an agreement substantially
identical to this Agreement and, upon appointment of a substitute Disbursement
Agent, the Disbursement Agent shall promptly transfer to the substitute
Disbursement Agent originals of all books, records, and other documents in the
Disbursement Agent's possession relating to this Agreement and the transactions
contemplated hereby.
9.8 MERGER OR CONSOLIDATION OF THE DISBURSEMENT AGENT. Any corporation
into which the Disbursement Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Disbursement Agent shall be a party, or any
corporation succeeding to the corporate trust business of the Disbursement
Agent, shall, if eligible hereunder, be the successor of the Disbursement Agent
hereunder; provided, that such corporation shall be eligible under the
provisions of Section 9.6 without the execution or filing of any paper with any
party hereto or any further act on the part of any of the parties hereto except
where an instrument of transfer or assignment is required by law to effect such
succession, anything herein to the contrary notwithstanding.
9.9 STATEMENTS; INFORMATION. The Disbursement Agent shall provide to
the Funding Agents and the Company a monthly statement of all deposits to, and
disbursements from, each account maintained with it and interest and earnings
credited to each account established and maintained hereunder by the
Disbursement Agent.
9.10 LIMITATION OF LIABILITY. The Disbursement Agent's responsibility
and liability under this Agreement shall be limited as follows: (a) the
Disbursement Agent does not represent, warrant or guaranty to the Funding
Agents or the Lenders the performance by the Company, the Primary Contractors,
the Construction Guarantor, the Phase I Golf Course Contractor, the
Construction Consultant, the Project Architects, the Phase I Golf Course
Designer, the Phase I Aqua Theater and Showroom Designer, the Phase II Major
Architects, the Phase II Major Contractors, or any other Contractor or
Subcontractor of their respective obligations under the Operative Documents and
shall have no duty to inquire of any Person whether a Potential Event of
Default or an Event of Default has occurred and is continuing; (b) the
Disbursement Agent shall have no responsibility to the Company, the Funding
Agents or the Lenders as a consequence of performance by the Disbursement Agent
hereunder except for any bad faith, fraud, gross negligence or willful
misconduct of the Disbursement Agent as finally judicially determined by a
court of competent jurisdiction; (c) the Company shall remain solely
responsible for all aspects of its business and conduct in connection with the
Projects, including but not limited to the quality and suitability of the Plans
and Specifications, the supervision of the work of construction, the
qualifications, financial condition and performance of all architects,
engineers, contractors, subcontractors, suppliers, consultants and property
managers, the accuracy of all applications for payment, and the proper
application of all disbursements; and (d) the Disbursement Agent is not
obligated to supervise, inspect or inform the Company of any aspect of the
development, construction or operation of the Projects or any other matter
referred to above. Each Funding Agent, each 2014 Noteholder, and each Bank
Lender (by its execution and delivery of the Bank Credit Agreement or
acceptance of an assignment thereof in accordance with the terms of the Bank
Credit Agreement) has made its own independent investigation of the financial
condition and affairs of the Loan Parties in connection with the making of the
extensions of credit contemplated by the Financing Agreements and has made and
shall continue to make its own appraisal of the creditworthiness of the Loan
Parties. Except as specifically set forth herein, the Disbursement Agent shall
not have any duty or responsibility, either initially or on a continuing basis,
to make any such investigation or any such appraisal on behalf of the Funding
Agents or Lenders or to provide any Funding Agent or Lender with any credit or
other information with respect thereto. The Disbursement Agent shall not have,
by reason of this Agreement, a fiduciary relationship in respect of any Funding
Agent or Lender; and nothing in this Agreement, expressed or implied, is
intended to or shall be so construed as to impose upon the Disbursement Agent
any obligations in respect of this Agreement except as expressly set forth
herein or therein. The Disbursement Agent shall have no duties or obligations
hereunder except as expressly set forth herein, shall be responsible only for
the performance of such duties and obligations and shall not be required to
take any action otherwise than in accordance with the terms hereof. In
performing its functions and duties under this Agreement, the Disbursement
Agent does not assume and shall not be deemed to have assumed any obligation
towards or relationship of agency or trust with or for the Company or any of
its Affiliates. Neither the Disbursement Agent nor any of its officers,
directors, employees or agents shall be in any manner liable or responsible for
any loss or damage arising by reason of any act or omission to act by it or
them hereunder or in connection with any of the transactions contemplated
hereby, including, but not limited to, any loss that may occur by reason of
forgery, false representations, the exercise of its discretion, or any other
reason, except as a result of their bad faith, fraud, gross negligence or
willful misconduct as finally judicially determined by a court of competent
jurisdiction.
ARTICLE 10.
- SAFEKEEPING OF ACCOUNTS
-------------------------
10.1 APPLICATION OF FUNDS IN COMPANY ACCOUNTS. Amounts deposited in
the Company Accounts shall be applied exclusively as provided in this Agreement
and the Disbursement Agent shall at all times act and direct the securities
intermediaries under the Collateral Account Agreements so as to implement the
application of funds provisions and procedures herein set forth. The
Disbursement Agent is hereby authorized to direct the Securities Intermediary
to reduce to cash any Permitted Investment (without regard to maturity) in any
account in order to make any application required hereunder. No amount held in
any Account maintained hereunder shall be disbursed except in accordance with
the provisions hereof or as required by law.
10.2 EVENT OF DEFAULT. Notwithstanding anything to the contrary in
this Agreement, (a) upon the occurrence and during the continuance of a
Potential Event of Default or an Event of Default of which it has actual
knowledge, the Disbursement Agent shall not in any such event deposit or cause
to be deposited any amounts into the Disbursement Account, the Cash Management
Account, the Bank Proceeds Account, the Company's Payment Account or release or
cause to be released any amounts to the Company unless instructed to the
contrary by (i) in the case of the 2014 Notes Proceeds Account, the 2014 Notes
Indenture Trustee and (ii) in the case of all other Company Accounts, the Bank
Agent; and (b) (i) upon the request of the Collateral Agent after the
occurrence of an Event of Default, (ii) immediately upon obtaining knowledge of
the dissolution or liquidation or Bankruptcy of the Completion Guarantor, or
(iii) upon the request of the Collateral Agent upon a breach by the Completion
Guarantor of any of its covenants and agreements under the Completion Guaranty,
the Disbursement Agent shall withdraw all funds then on deposit in the
Completion Guaranty Deposit Account and deposit the same in the Company's Funds
Account. During the continuance of an Event of Default, the Disbursement Agent
is hereby irrevocably authorized by the Company to apply, or cause to be
applied, amounts in any Company Account to the payment of interest, principal,
fees, costs, charges or other amounts or obligations due or payable to the
Secured Parties when instructed to do so (i) by the 2014 Notes Indenture
Trustee, with respect to the 2014 Notes Proceeds Account and (ii) by the Bank
Agent with respect to all other Company Accounts.
10.3 LIENS. The Disbursement Agent shall take such actions within its
control that it customarily takes in the conduct of its business to protect the
Company Accounts, and all cash, funds, Permitted Investments from time to time
deposited therein, as well as any proceeds or income therefrom (collectively,
the "Company Accounts Collateral") free and clear of all liens, security
interests, safekeeping or other charges, demands and claims of any nature
whatsoever now or hereafter existing, in favor of anyone other than the Secured
Parties (or the Disbursement Agent, as agent for the Secured Parties)
(collectively, the "Third Party Claims"); it being understood, however, that
the foregoing shall in no way be deemed to be a guaranty or other assurance by
the Disbursement Agent that Third Party Claims will not arise.
10.4 PERFECTION. The Disbursement Agent shall take any steps from time
to time requested by the Collateral Agent to confirm or cause the securities
intermediaries under the Collateral Account Agreements to confirm and maintain
the priority of their respective security interests in the Company Accounts
Collateral.
ARTICLE 11.
- MISCELLANEOUS
---------------
11.1 ADDRESSES. Any communications between the parties hereto or
notices provided herein to be given may be given to the following addresses:
If to the Company: ▇▇▇▇ Las Vegas, LLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇ Las Vegas, LLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
And a copy to: Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Bank Agent: Deutsche Bank Trust Company Americas
c/o Deutsche Bank Securities Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the 2014 Notes
Indenture Trustee: U.S. Bank National Association
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Corporate Trust Services
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Disbursement Agent: Deutsche Bank Trust Company Americas
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
All notices or other communications required or permitted to be given hereunder
shall be in writing and shall be considered as properly given (a) if delivered
in person, (b) if sent by reputable overnight delivery service, (c) in the
event overnight delivery services are not readily available, if mailed by first
class mail, postage prepaid, registered or certified with return receipt
requested or (d) if sent by prepaid telex, or by telecopy with correct answer
back received. Notice so given shall be effective upon receipt by the
addressee, except that communication or notice so transmitted by telecopy or
other direct written electronic means shall be deemed to have been validly and
effectively given on the day (if a Banking Day and, if not, on the next
following Banking Day) on which it is validly transmitted if transmitted before
4 p.m., recipient's time, and if transmitted after that time, on the next
following Banking Day; provided, however, that if any notice is tendered to an
addressee and the delivery thereof is refused by such addressee, such notice
shall be effective upon such tender. Any party shall have the right to change
its address for notice hereunder to any other location by giving of no less
than ten (10) days' notice to the other parties in the manner set forth
hereinabove.
11.2 DELAY AND WAIVER. No delay or omission to exercise any right,
power or remedy accruing upon the occurrence of any Potential Event of Default
or Event of Default or any other breach or default of the Company under this
Agreement shall impair any such right, power or remedy of the Funding Agents,
the Lenders, the Disbursement Agent or any other Secured Party nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or in any similar breach or default thereafter occurring, nor shall
any waiver of any single Potential Event of Default, Event of Default or other
breach or default be deemed a waiver of any other Potential Event of Default,
Event of Default or other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any of the Funding Agents, the Lenders or the Disbursement Agent,
of any Potential Event of Default, Event of Default or other breach or default
under this Agreement, or any waiver on the part of any of the Funding Agents,
the Lenders or the Disbursement Agent, of any provision or condition of this
Agreement, must be in writing and shall be effective only to the extent in such
writing specifically set forth. Neither any waiver, permit, consent or approval
of any kind or character on the part of any of the Funding Agents, the Lenders
or the Disbursement Agent of any Potential Event of Default, Event of Default
or other breach or default under this Agreement nor any waiver on the part of
any of the Funding Agents, the Lenders or the Disbursement Agent of any
provision or condition of this Agreement shall be effective or binding with
respect to any other Operative Document. All remedies under this Agreement or
by law or otherwise afforded to any of the Funding Agents, the Lenders or the
Disbursement Agent shall be cumulative and not alternative.
11.3 ENTIRE AGREEMENT. This Agreement and any agreement, document or
instrument attached hereto or referred to herein integrate all the terms and
conditions mentioned herein or incidental hereto and supersede all oral
negotiations and prior writings in respect to the subject matter hereof, all of
which negotiations and writings are deemed void and of no force and effect.
11.4 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of New York of the United States of America and shall for all
purposes be governed by and construed in accordance with the laws of such state
without regard to the conflict of law rules thereof other than Section 5-1401
of the New York General Obligations Law.
11.5 SEVERABILITY. In case any one or more of the provisions contained
in this Agreement should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby, and the parties hereto shall enter
into good faith negotiations to replace the invalid, illegal or unenforceable
provision.
11.6 HEADINGS. Paragraph headings have been inserted in this Agreement
as a matter of convenience for reference only and it is agreed that such
paragraph headings are not a part of this Agreement and shall not be used in
the interpretation of any provision of this Agreement.
11.7 LIMITATION ON LIABILITY. NO CLAIM SHALL BE MADE BY THE COMPANY OR
ANY OF ITS AFFILIATES AGAINST THE FUNDING AGENTS, THE LENDERS, THE DISBURSEMENT
AGENT OR ANY OTHER SECURED PARTY OR ANY OF THEIR RESPECTIVE AFFILIATES,
DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES (WHETHER OR NOT THE CLAIM THEREFOR IS BASED
ON CONTRACT, TORT OR DUTY IMPOSED BY LAW), IN CONNECTION WITH, ARISING OUT OF
OR IN ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE
OTHER OPERATIVE DOCUMENTS OR ANY ACT OR OMISSION OR EVENT OCCURRING IN
CONNECTION THEREWITH; AND THE COMPANY HEREBY WAIVES, RELEASES AND AGREES NOT TO
▇▇▇ UPON ANY SUCH CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT ACCRUED AND
WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
11.8 WAIVER OF JURY TRIAL. ALL PARTIES TO THIS AGREEMENT HEREBY
KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER FINANCING AGREEMENTS,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN), OR ACTIONS OF ANY PARTY TO THIS AGREEMENT. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE FUNDING AGENTS, DISBURSEMENT AGENT AND EACH OF THE
OTHER LENDERS AND SECURED PARTIES TO ENTER INTO THIS AGREEMENT.
11.9 CONSENT TO JURISDICTION. Any legal action or proceeding by or
against the Company or with respect to or arising out of this Agreement may be
brought in or removed to the courts of the State of New York, in and for the
County of New York, or of the United States of America for the Southern
District of New York. By execution and delivery of this Agreement, the Company,
accepts, for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts for legal proceedings
arising out of or in connection with this Agreement and irrevocably consents to
the appointment of the CT Corporation System, whose current address is ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, as its agent to receive service of process
in New York, New York. Nothing herein shall affect the right to serve process
in any other manner permitted by law or any right to bring legal action or
proceedings in any other competent jurisdiction, including judicial or
non-judicial foreclosure of real property interests which are part of the
Project Security. The Company further agrees that the aforesaid courts of the
State of New York and of the United States of America for the Southern District
of New York shall have exclusive jurisdiction with respect to any claim or
counterclaim of the Company based upon the assertion that the rate of interest
charged by or under this Agreement, or under the other Financing Agreements is
usurious. The Company hereby waives any right to stay or dismiss any action or
proceeding under or in connection with any or all of the Projects, this
Agreement or any other Operative Document brought before the foregoing courts
on the basis of forum non-conveniens.
11.10 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Notwithstanding the foregoing, the Company
may not assign or otherwise transfer any of its rights under this Agreement.
11.11 REINSTATEMENT. This Agreement shall continue to be effective or
be reinstated, as the case may be, if at any time payment and performance of
the Company's obligations hereunder or under the other Financing Agreements, or
any part thereof, is, pursuant to applicable law, rescinded or reduced in
amount, or must otherwise be restored or returned by the Secured Parties. In
the event that any payment or any part thereof is so rescinded, reduced,
restored or returned, such obligations shall be reinstated and deemed reduced
only by such amount paid and not so rescinded, reduced, restored or returned.
11.12 NO PARTNERSHIP; ETC. The Secured Parties and the Company intend
that the relationship between them shall be solely that of creditor and debtor.
Nothing contained in this Agreement or in any of the other Financing Agreements
shall be deemed or construed to create a partnership, tenancy-in-common, joint
tenancy, joint venture or co-ownership by or between the Secured Parties and
the Company or any other Person. The Secured Parties shall not be in any way
responsible or liable for the debts, losses, obligations or duties of the
Company or any other Person with respect to the Projects or otherwise. All
obligations to pay real property or other taxes, assessments, insurance
premiums, and all other fees and charges arising from the ownership, operation
or occupancy of the Projects and to perform all obligations under the
agreements and contracts relating to the Projects shall be the sole
responsibility of the Company.
11.13 COSTS AND EXPENSES.
11.13.1 Reimbursement of Costs. The Company shall (subject to the
limitations set forth herein and, with respect to the Bank Agent, the
Disbursement Agent, the Collateral Agent and the Nevada Collateral Agent, to
the express provisions of the Financing Agreements or any other fee letters or
engagement letters to which such Funding Agent, the Disbursement Agent, the
Collateral Agent or the Nevada Collateral Agent is a party) pay the reasonable
legal, engineering, other professional and all other fees and costs of the
Funding Agents, the Disbursement Agent, the Collateral Agent and the Nevada
Collateral Agent and their consultants and advisors, the reasonable travel
expenses and other out-of-pocket costs incurred by each of them in connection
with preparation, negotiation, execution and delivery, and where appropriate,
registration, of the Operative Documents (and all matters incidental thereto),
the administration of the transactions contemplated by the Operating Documents
(including, without limitation the administration of this Agreement, the other
Operative Documents and the Security Documents) and the preservation or
enforcement of any of their respective rights or in connection with any
amendments, waivers or consents required under this Agreement. The Funding
Agents, the Disbursement Agent, the Collateral Agent and the Nevada Collateral
Agent will reasonably consult with the Company on a regular basis with respect
to on-going costs of such Persons' consultants and advisors and unless a
Potential Event of Default or Event of Default shall have occurred and be
continuing, if requested by the Company, the Funding Agents, the Disbursement
Agent, Collateral Agent and the Nevada Collateral Agent may agree with the
Company that such costs be subject to a reasonable fee cap.
11.13.2 Foreclosure. The provisions of this Section 11.13 shall
survive foreclosure of the Security Documents and satisfaction or discharge of
the Company's obligations hereunder, and shall be in addition to any other
rights and remedies of any the Funding Agents, the Disbursement Agent,
Collateral Agent and the Nevada Collateral Agent.
11.13.3 Payment Due Dates. Any amounts payable by the Company
pursuant to this Section 11.13 shall be payable thirty (30) Banking Days after
the Company receives an invoice for such amounts from the Funding Agents, the
Disbursement Agent, Collateral Agent or the Nevada Collateral Agent, as the
case may be.
11.14 COUNTERPARTS. This Agreement may be executed in one or
more duplicate counterparts (including by facsimile) and when signed by all of
the parties listed below shall constitute a single binding agreement.
11.15 TERMINATION; REMOVAL OF 2014 NOTES INDENTURE TRUSTEE AND
2014 NOTEHOLDERS AS BENEFICIARIES. This Agreement shall, subject to Section
11.11 and to the next sentence, terminate and be of no further force or effect
on the Last Project Final Completion Date upon completion of the transfer and
release of funds contemplated by Section 2.9.3 (other than amounts on deposit
in the Project Liquidity Reserve Account that are not yet eligible for release
to the Company pursuant to Section 2.2.8). The provisions of Article 9 and
Section 11.13 shall survive the termination of this Agreement. The provisions
of Section 2.2.8 with respect to the Project Liquidity Reserve Account shall
survive until all amounts on deposit therein are released to the Company
pursuant to Section 2.2.8. This Agreement shall cease to apply to or otherwise
govern the Phase I Project from and after the Phase I Final Completion Date.
11.15.1 The 2014 Notes Indenture Trustee shall cease to be a
party to this Agreement on the date that the 2014 Notes Proceeds Account is
Exhausted. On such date, (i) the 2014 Notes Indenture Trustee shall have no
further rights or obligations hereunder, (ii) neither the 2014 Notes Indenture
Trustee nor the 2014 Noteholders shall be entitled to any of the benefits of
this Agreement (other than Section 11.13), (iii) this Agreement shall
automatically be amended to delete all references to the 2014 Notes Indenture
Trustee and the 2014 Noteholders to reflect that the 2014 Notes Indenture
Trustee is no longer a party to this Agreement and to further reflect that
neither the 2014 Notes Indenture Trustee nor the 2014 Noteholders shall be
entitled to any of the benefits of this Agreement (except for the indemnities
set forth in Section 11.13) and (iv) this Agreement shall automatically be
amended to delete each reference to "Funding Agent" and replace each such
reference with a reference to "Bank Agent".
11.16 AMENDMENTS
The Bank Agent (acting under the Bank Credit Agreement) may
amend this Agreement without the 2014 Notes Indenture Trustee's consent;
provided, however that the Bank Agent shall not be entitled to amend the
funding allocation between the 2014 Notes Proceeds Account and the Bank Credit
Facility set forth in Section 2.4.1 (clause second). Except as otherwise
provided in the preceding sentence, any amendment to this Agreement must be in
writing and must be signed by each party hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed by their officers thereunto duly authorized as of the day and
year first above written.
COMPANY:
-------
WYNN LAS VEGAS, LLC,
a Nevada limited liability company
By: ▇▇▇▇ Resorts Holdings, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited,
a Nevada corporation,
its sole member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
BANK AGENT:
----------
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
2014 NOTES INDENTURE TRUSTEE:
----------------------------
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
DISBURSEMENT AGENT:
------------------
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
EXHIBIT A to the
Disbursement Agreement
DEFINITIONS
-----------
"Additional Construction Agreements" means any other
documents or agreements entered into after the Closing Date relating to the
development, design, engineering, installation or construction of a Project
(including, without limitation, any Contracts with respect to the Phase II
Project).
"Advance" means (a) with respect to the Bank Credit
Facility, an advance of Loans deposited in the Disbursement Account or a
transfer of funds from the Bank Proceeds Account to the Disbursement Account
or the issuance of a Letter of Credit thereunder, (b) with respect to the 2014
Notes, a transfer of funds from the 2014 Notes Proceeds Account to the
Disbursement Account, (c) with respect to amounts on deposit in the Company's
Funds Account, a release of funds from the Company's Funds Account and (d) a
transfer of funds from the Completion Guaranty Deposit Account or the Project
Liquidity Reserve Account to the Disbursement Account pursuant to Section
5.5.3.
"Advance Confirmation Notice" has the meaning given in
Section 2.3.2(a)(i) of the Disbursement Agreement.
"Advance Date" means the date on which an Advance is
required to be deposited in the Disbursement Account pursuant to Section
2.3.3(a)(i) of the Disbursement Agreement.
"Advance Request" means an advance request and certificate
in the form of Exhibit C-1 to the Disbursement Agreement.
"Affiliate" as applied to any Person, any other Person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled
by," and "under common control with") as applied to any Person means the
power, directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors (or
persons performing similar functions) of such Person or (b) direct or cause
the direction of the management and policies of such Person, whether by
contract or otherwise.
"Affiliate Real Estate Agreements" means, collectively, the
Golf Course Lease, the Water Access Easement and the Shuttle Easement.
"Anticipated Cost Reports" means, collectively, the Phase I
Anticipated Cost Report and, from and after the Phase II Approval Date, the
Phase II Anticipated Cost Report.
"Anticipated Earnings" means, at any time, with respect to
the 2014 Notes Proceeds Account, the Company's Funds Account, the Completion
Guaranty Deposit Account, the Bank Proceeds Account and the Project Liquidity
Reserve Account, respectively, the amount of investment income which the
Company reasonably determines with the concurrence of the Disbursement Agent
(acting in its sole discretion exercised in good faith) will accrue on the
funds in each such Company Account through the anticipated Completion Date of
the last Project, taking into account the current and future anticipated rates
of return on Permitted Investments in such Company Accounts and the
anticipated times and amounts of draws from each such Company Account for the
payment of Project Costs.
"Arrangers" shall have the meaning given in the Bank Credit
Agreement.
"Availability Period" shall mean the period commencing on
the Closing Date and ending on the earlier to occur of (a) the Last Project
Final Completion Date and (b) (i) with respect to Project Costs allocated to
the Phase I Project in the Phase I Project Budget, the Outside Phase I
Completion Deadline and (ii) with respect to Project Costs allocated to Phase
II Project in the Phase II Project Budget, the Phase II Revolving Commitment
Sunset Date (if the Phase II Approval Date has not previously occurred), and
otherwise, the Outside Phase II Completion Deadline.
"Available Funds" means, from time to time, the sum of (i)
the unutilized Commitments (excluding $550,000,000 prior to the Phase II
Approval Date), plus (ii) the aggregate then undrawn and unexpired amount of
the standby Letters of Credit then outstanding under the Bank Credit Facility
to the extent issued in respect of Project Costs, plus (iii) the aggregate of
the amounts on deposit in the Company's Funds Account (excluding funds
transferred from the Completion Guaranty Deposit Account to the Company's
Funds Account pursuant to Section 5.5.1 of the Disbursement Agreement to the
extent such funds would not count as Available Funds under clause (iv) hereof
had such funds remained on deposit in the Completion Guaranty Deposit Account)
and the 2014 Notes Proceeds Account and all Anticipated Earnings thereon, plus
(iv) the aggregate amount which the Company is entitled to withdraw from the
Completion Guaranty Deposit Account and the Project Liquidity Reserve Account
pursuant to Section 5.5.3(a) of the Disbursement Agreement but which it has
not withdrawn from such Company Accounts, plus (v) all Anticipated Earnings on
the Completion Guaranty Deposit Account and the Project Liquidity Reserve
Account, plus (vi) the aggregate of the amounts on deposit in the Bank
Proceeds Account and the Cash Management Account (after giving effect to any
transfers of earnings thereon to the Company's Funds Account as contemplated
in the Disbursement Agreement), plus (vii) the lesser of (A) the aggregate
amount of Project Costs with respect to the Phase I Project or the Phase II
Project, as the case may be, which the Construction Guarantor and/or the
applicable Primary Contractor has agreed or confirmed in writing, to the
reasonable satisfaction of the Disbursement Agent, that it is responsible for
paying (on a timely basis relative to the Project's cash needs) from its own
funds but which it has not yet paid, but only to the extent that such funds
have been deposited in an account which is subject to a perfected first
priority security interest in favor of the Disbursement Agent on behalf of the
Secured Parties and (B) the aggregate amount of Remaining Costs for the "GMP
Contract" Line Item Category allocated to such Project in the applicable
Project Budget plus, (viii) from and after the Phase II Approval Date, the
Phase I Excess Cash Flow Credit Amount.
"Bank Agent" means Deutsche Bank Trust Company Americas in
its capacity as Administrative Agent under the Bank Credit Agreement and its
successors in such capacity.
"Bank Credit Agreement" means that certain Credit Agreement
dated as of December 14, 2004 among the Company, the Bank Agent, Deutsche Bank
Securities Inc., as lead arranger and joint book-running manager, Bank of
America, N.A., as syndication agent, Banc of America Securities LLC, as joint
book-running manager, Bear ▇▇▇▇▇▇▇ Corporate Lending, Inc., as joint
documentation agent, Bear, ▇▇▇▇▇▇▇ & Co. Inc., as arranger and joint
book-running manager, JPMorgan Chase Bank, N.A., as joint documentation agent,
▇.▇. ▇▇▇▇▇▇ Securities Inc., as arranger and joint book-running manager,
Societe Generale, as joint documentation, and SG Americas Securities, LLC, as
arranger and joint book-running manager and the Bank Lenders, as amended,
modified or supplemented from time to time, or any permitted refinancings
thereof.
"Bank Credit Facility" means, collectively, the term loan
credit facility and the revolving facility described in and made available
from time to time to the Company by the Bank Lenders under the Bank Credit
Agreement.
"Bank Environmental Indemnity Agreements" means those
certain Indemnity Agreements dated as of December 14, 2004 and made by each of
the Company, ▇▇▇▇ Golf and Wynn Sunrise for the benefit of the Bank Agent and
certain other indemnified parties.
"Bank Guarantee" means that certain Guarantee dated as of
December 14, 2004 executed by the Company and each other Loan Party, in favor
of the Collateral Agent.
"Bank Lenders" has the meaning given to the term "Lenders"
in the Bank Credit Agreement.
"Bank Proceeds Account" means the account referenced in
Section 2.2.5 of the Disbursement Agreement and established pursuant to the
Company Disbursement Collateral Account Agreement.
"Bank Revolving Facility" means the revolving loan credit
facility described in and made available from time to time to the Company by
the Bank Lenders under the Bank Credit Agreement.
"Banking Day" means (a) for all purposes other than as
covered by clause (b) below, any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the State of New York or Nevada or
is a day on which banking institutions located in either such state are
authorized or required by law or other governmental action to close, and (b)
with respect to all notices, determinations, fundings and payments in
connection with the "Eurodollar Rate" (as defined in the Bank Credit
Agreement) or any "Eurodollar Loans" (as defined in the Bank Credit
Agreement"), any day that is a Banking Day described in clause (a) above and
that is also a day for trading by and between banks in Dollar deposits in the
London, England interbank market.
"Bankruptcy" means, with respect to any Person, that (i) a
court having jurisdiction over any Project Security shall have entered a
decree or order for relief in respect of such Person in an involuntary case
under the Bankruptcy Code or under any other applicable bankruptcy, insolvency
or similar law now or hereafter in effect, which decree or order has not been
stayed; or any other similar relief shall have been granted under any
applicable federal or state law; or (ii) an involuntary case shall be
commenced against such Person, under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect;
or a decree or order of a court having jurisdiction over any Project Security
for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over such Person, or over all
or a substantial part of its property, shall have been entered; or there shall
have occurred the involuntary appointment of an interim receiver, trustee or
other custodian of such Person, for all or a substantial part of its property;
or a warrant of attachment, execution or similar process shall have been
issued against any substantial part of the property of such Person, and any
such event described in this clause (ii) shall continue for 60 days unless
dismissed, bonded or discharged; or (iii) such Person shall have an order for
relief entered with respect to it or shall commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect or shall consent to the entry of an
order for relief in an involuntary case, or to the conversion of an
involuntary case to a voluntary case, under any such law, or shall consent to
the appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property; or such Person shall
make any assignment for the benefit of creditors, or shall fail generally, or
shall admit in writing its inability, to pay its debts as such debts become
due and payable or if the fair market value of its assets does not exceed its
aggregate liabilities; or (iv) such Person shall, or the board of directors,
manager or managing member of such Person (or any committee thereof) shall,
adopt any resolution or otherwise authorize any action to approve any of the
actions referred to in clause (iii) above.
"Bankruptcy Code" means Title 11 of the United States Code
entitled "Bankruptcy," as now and hereafter in effect, or any successor
statute thereto.
"Building Department" means the ▇▇▇▇▇ County Building
Department.
"Buy-Sell Agreement" means that certain Buy-Sell Agreement
dated as of June 13, 2002 among ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, an individual, ▇▇▇▇▇ ▇▇▇▇▇,
an individual, Aruze USA, Inc., a Nevada corporation, and Aruze Corp., a
Japanese public corporation, as supplemented by that certain Agreement, dated
as of June 13, 2002, between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, an individual, and Wynn Resorts,
Limited, a Nevada corporation.
"Cash Management Account" means the account referenced in
Section 2.2.4 of the Disbursement Agreement and established pursuant to the
Local Company Collateral Account Agreement.
"Capital Corp." means Wynn Las Vegas Capital Corp., a Nevada
corporation.
"Closing Date" means the first date on which each of the
conditions precedent listed in Section 3.1 of the Disbursement Agreement have
been satisfied or waived.
"Closing Date Outstanding Releases" has the meaning given in
Section 3.1.36 of the Disbursement Agreement.
"Closing Transactions" means all transactions contemplated
to occur on the Closing Date pursuant to the Offering Memorandum, dated as of
November 22, 2004, relating to the offering by the Company and ▇▇▇▇ Las Vegas
Capital Corp. of the 2014 Notes, including the "Refinancing Transactions" as
such term is defined in the Bank Credit Agreement.
"Closing Financing Agreements" has the meaning given in
Section 3.1.1 of the Disbursement Agreement.
"Collateral Account Agreements" means, collectively, the
Company Collateral Account Agreements, the Completion Guaranty Collateral
Account Agreement and any other collateral account agreement entered into on
or after the Closing Date granting any one or more of the Secured Parties a
security interest in any account.
"Collateral Agent" means Deutsche Bank Trust Company
Americas, in its capacity as collateral agent under the Intercreditor
Agreement and its successors in such capacity.
"Collateral Agency Agreement" means that certain Collateral
Agency Agreement dated as of December 14, 2004 among the Bank Agent, the 2014
Notes Indenture Trustee and the Nevada Collateral Agent.
"Commitment" means the aggregate principal amount of all
Loans to the Company which may be made under the Bank Credit Facility for the
purpose of financing Project Costs.
"Commitment Letter" means that certain Commitment Letter
dated November 15, 2004, among Wynn Resorts, Limited, the Company, Deutsche
Bank Securities, Inc., Bank of America Securities LLC, Bank of America, N.A.,
Bear ▇▇▇▇▇▇ Corporate Lending, Inc., Bear, ▇▇▇▇▇▇ & Co. Inc., JPMorgan Chase
Bank, ▇.▇. ▇▇▇▇▇▇ Securities Inc., Societe Generale, SG Americas Securities,
LLC and those certain initial agents and arrangers party thereto.
"Company" means Wynn Las Vegas, LLC, a Nevada limited
liability company.
"Company Accounts" means the Company's Funds Account, the
2014 Notes Proceeds Account, the Disbursement Account, the Cash Management
Account, the Company's Payment Account, the Bank Proceeds Account, the
Completion Guaranty Deposit Account, the Project Liquidity Reserve Account and
any sub-accounts thereof or any successor accounts or sub-accounts established
pursuant to the Collateral Account Agreements.
"Company Accounts Collateral" has the meaning given in
Section 10.3 of the Disbursement Agreement.
"Company Collateral Account Agreements" means, collectively,
the Company Disbursement Collateral Account Agreement and the Local Company
Collateral Account Agreements.
"Company Disbursement Collateral Account Agreement" means
that certain Disbursement Collateral Account Agreement dated as of December
14, 2004 among the Company, the Collateral Agent and the Securities
Intermediary.
"Company's Closing Certificate" means a Closing Certificate
in the form of Exhibit B-1 to the Disbursement Agreement.
"Company's Funds Account" means the account referenced in
Section 2.2.1 of the Disbursement Agreement and established pursuant to the
Company Disbursement Collateral Account Agreement.
"Company's Payment Account" means the account referenced in
Section 2.2.6 of the Disbursement Agreement and established pursuant to the
Local Company Collateral Account Agreement.
"Company's Phase II Approval Date Certificate" means a
certificate substantially in the form of Exhibit R-1 to the Disbursement
Agreement.
"Completion" means that, for the applicable Project, each of
the following has occurred:
(a) the Opening Date for such Project shall have
occurred;
(b) all Contractors and Subcontractors have been paid
in full for all work performed with respect to such
Project (other than (A) Retainage Amounts and other
amounts that, as of the Completion Date for such
Project, are being withheld from the Contractors
and Subcontractors in accordance with the
provisions of the Project Documents, (B) amounts
being contested in accordance with the Financing
Agreements so long as adequate reserves have been
established through an allocation in the
Anticipated Cost Report for such Project and in
accordance with any requirements of such Financing
Agreements and (C) amounts payable in respect of
Project Punchlist Items for such Project to the
extent not covered by the foregoing clause (A));
(c) for Project Punchlist Items, a list of any
remaining Project Punchlist Items for such Project
(including the estimated cost of each such
remaining Project Punchlist Item) shall have been
delivered to the Construction Consultant and the
Disbursement Agent by the Company and approved by
the Construction Consultant as a reasonable final
punchlist (such approval not to be unreasonably
withheld);
(d) with respect to the Phase I Project, the Phase I
Primary Contractor, the Phase I Golf Course
Contractor, the Phase I Parking Structure
Contractor, the Phase I Architect, the Phase I Golf
Course Designer, and the Phase I Aqua Theater and
Showroom Designer, and, with respect to the Phase
II Project, the Phase II Major Contractors and the
Phase II Major Architects, each shall have
delivered its Completion Certificate certifying,
among other things, as to "substantial completion"
of the work under its respective Construction
Agreement with respect to such Project has occurred
and such certifications shall have been accepted by
the Company and the Construction Consultant in
accordance with Section 6.2.2 of the Disbursement
Agreement; and
(e) for each Contract and Subcontract for which a
Payment and Performance Bond is required pursuant
to Section 5.9 of the Disbursement Agreement and
for which the Company (or the
applicable Contractor) will release retainage as a
result of Completion of such Project being
achieved, the Company shall have delivered from the
surety under each such Payment and Performance Bond
(i) a "Consent of Surety to Reduction in or Partial
Release of Retainage" (AIA form G707A) if a partial
release of Retainage Amounts held under such
Contract or Subcontract will be made or (ii) a
"Consent of Surety to Final Payment" (AIA form
G707) if a release of all Retainage Amounts held
under such Contract or Subcontract will be made).
"Completion Certificates" means, collectively, with respect
to each Project, the Completion Certificates substantially in the form of
Exhibits T-1, T-2, T-3, T-4, T-5, T-6, T-7, T-8, T-9 and T-10 to the
Disbursement Agreement to be delivered by the Company, the Construction
Consultant, the Project Architects, the Primary Contractors, the Phase I Golf
Course Designer, the Phase I Aqua Theater and Showroom Designer, the Phase I
Golf Course Contractor, the Phase I Parking Structure Contractor, the Phase II
Major Architects and the Phase II Major Contractors, as the case may be,
relating to Completion of each Project.
"Completion Date" means the Phase I Completion Date or the
Phase II Completion Date, as the case may be.
"Completion Guarantor" means ▇▇▇▇ Completion Guarantor, LLC,
a Nevada limited liability company.
"Completion Guaranty" means that certain Completion Guaranty
dated as of December 14, 2004 executed by the Completion Guarantor in favor of
the Bank Agent and the 2014 Notes Indenture Trustee.
"Completion Guaranty Collateral Account Agreement" means
that certain Completion Guaranty Collateral Account Agreement dated as of
December 14, 2004 among the Completion Guarantor, the Collateral Agent and the
Securities Intermediary.
"Completion Guaranty Deposit Account" means the account
referenced in Section 2.2.7 of the Disbursement Agreement and established
pursuant to the Completion Guaranty Collateral Account Agreement.
"Completion Guaranty Release Certificate" means the
Completion Guaranty Release Certificates substantially in the form of Exhibits
R-6 and R-7 to the Disbursement Agreement to be delivered by the Company and
the Construction Consultant.
"Completion Guaranty Release Conditions" means that (a) the
Phase I Substantial Completion Date and the Phase I Completion Date shall have
occurred and either (i) the Phase II Completion Date (if the Phase II Approval
Date shall have occurred prior to the Phase II Revolving Commitment Sunset
Date) shall have occurred or (ii) the Phase II Revolving Commitment Sunset
Date (if the Phase II Approval Date shall have not occurred prior to the Phase
II Revolving Commitment Sunset Date) shall have occurred, (b) a Notice of
Completion has been posted with respect to each Project and recorded in the
Office of the County Recorder of ▇▇▇▇▇ County, Nevada and the statutory period
for filing mechanics liens under Nevada law with respect to work performed
before filing such Notice of Completion has expired, (c) the Funding Agents
have received final 101.6 endorsements from the Title Insurer insuring the
priority of their respective Liens on the Project Security, (d) the Company
shall have delivered to the Disbursement Agent, the Bank Agent and the 2014
Notes Indenture Trustee its Completion Guaranty Release Certificate certifying
that (i) all Project Punchlist Items have been completed for each Project
other than Punchlist Items with an aggregate value (as reasonably determined
by the Construction Consultant) of not more than $17.5 million so long as 150%
of the Project Punchlist Completion Amount for such uncompleted Punchlist
Items shall have been reserved in the Company's Funds Account, the Bank
Proceeds Account and/or the Completion Guaranty Deposit Account and (ii) the
Company has settled with the Contractors all claims for payments and amounts
due under the Contracts and the Company has received a final lien release from
each Contractor and Subcontractor as required under the Disbursement
Agreement, each in the form of Exhibit H-3 of the Disbursement Agreement,
other than with respect to disputed claims (including claims subject to audit
before payment) not exceeding $15.0 million in the aggregate so long as an
amount equal to such disputed amounts shall have been reserved in the
Company's Funds Account, the Bank Proceeds Account and/or the Completion
Guaranty Deposit Account, (e) the Construction Consultant shall have delivered
its Completion Guaranty Release Certificate, and (f) the Company shall have
delivered from the surety under each Payment and Performance Bond required
pursuant to Section 5.9 of the Disbursement Agreement a "Consent of Surety to
Final Payment" (AIA form G707) other than with respect to Contracts and
Subcontracts which the Company is disputing amounts in accordance with clause
(d)(ii) above.
"Completion Guaranty Release Date" means the date on which
the Disbursement Agent countersigns the Company's Completion Guaranty Release
Certificate acknowledging that Completion Guaranty Release Conditions have
been satisfied.
"Consents" means consents to the collateral assignment by
the Company of Material Project Documents in substantially the form of Exhibit
P to the Disbursement Agreement (or as otherwise approved by the Majority of
the Arrangers (in the case of Section 3.4) or the Bank Agent (in the case of
Section 6.5), as applicable).
"Construction Agreements" means each Contract, each Payment
and Performance Bond and the Construction Guaranty and each other guarantee
related to any Contract.
"Construction Consultant" means Inspection & Valuation
International, Inc. or any other Person appointed from time to time in
accordance with Section 8.1 of the Disbursement Agreement, to serve as the
Construction Consultant under the Disbursement Agreement.
"Construction Consultant Engagement Agreement" means that
certain proposal letter dated as of December 8, 2004 by and among the
Construction Consultant, the Disbursement Agent, the Bank Agent and the 2014
Notes Indenture Trustee.
"Construction Consultant's Advance Certificate" means a
certificate in the form of Exhibit C-2 to the Distribution Agreement.
"Construction Consultant's Closing Certificate" means a
closing certificate in the form of Exhibit B-2 to the Disbursement Agreement.
"Construction Consultant's Report" means a report or an
updated report of the Construction Consultant delivered to the Disbursement
Agent, the Bank Agent and/or the Representatives of the Initial Purchasers
pursuant to Section 3.1.10 and Section 3.4.8 of the Disbursement Agreement and
stating, among other things, that (a) the Construction Consultant has reviewed
the Material Project Documents, the Plans and Specifications, and other
material information reasonably deemed necessary by the Construction
Consultant for the purpose of evaluating whether the applicable Project can be
constructed and completed in the manner contemplated by the Operative
Documents and (b) based on its review of such information, the Construction
Consultant is of the opinion that the Phase I Project or the Phase II Project,
as applicable, can be constructed in the manner contemplated by the Operative
Documents and, in particular, that each Project can be constructed and
completed in accordance with the Material Project Documents and the Plans and
Specifications within the parameters set by the Project Schedule and the
Project Budget for such Project.
"Construction Guarantor" means Austi, Inc., a Nevada
corporation.
"Construction Guaranty" means that certain Amended and
Restated Continuing Guaranty dated as of October 22, 2002, executed by the
Construction Guarantor in favor of the Company.
"Contractors" means any architects, consultants, designers,
contractors, Subcontractors, suppliers, laborers or any other Persons engaged
by any Loan Party in connection with the design, engineering, installation and
construction of the Projects (including the Project Architects, the Primary
Contractors, the Phase I Golf Course Contractor, the Phase I Parking Structure
Contractor, the Phase I Golf Course Designer, the Phase I Aqua Theater and
Showroom Designer, the Phase II Major Architects and the Phase II Major
Contractors).
"Contracts" means, collectively, the contracts entered into,
from time to time, between any Loan Party and any Contractor for performance
of services or sale of goods in connection with the design, engineering,
installation or construction of any Projects.
"Debt Service" means all principal payments, interest or
premium, if any, and other amounts payable or accrued from time to time under
the Bank Credit Agreement or the 2014 Notes.
"Deeds of Trust" means, collectively, the ▇▇▇▇ Las Vegas
Deed of Trust, the Wynn Sunrise Deed of Trust and the ▇▇▇▇ Golf Deed of Trust.
"De Minimis Scope Change(s)" means any Scope Change which
does not increase or decrease the amount of Project Costs for any particular
Project by more than $250,000; provided that, the aggregate absolute value of
all such De Minimis Scope Changes for any particular Project may not exceed
$10,000,000, in the aggregate.
"Development Agreements" means collectively, (a) that
certain Restrictive Covenant Running with the Land by and between ▇▇▇▇▇
County, Nevada and Sheraton Desert Inn Corporation, dated as of December 9,
1999, (b) that certain Dedication Agreement by and between ▇▇▇▇▇ County,
Nevada and Hotel A LLC, a Nevada limited liability company, dated as of May
21, 2002 (c) that certain Road Improvement Agreement, by and between ▇▇▇▇▇
County, Nevada and Sheraton Desert Inn Corporation, dated as of December 21,
1999 and recorded February 4, 2000, in Book 20000204 as Document No. 00871, of
Official Records, (d) that certain Off-Site Improvement Agreement, by and
between ▇▇▇▇▇ County, Nevada and ▇▇▇▇ Design & Development, LLC, dated as of
April 15, 2002 and recorded April 29, 2002, in Book 20020429 as Document No.
03371, of Official Records, (e) that certain Off-Site Improvements Agreement,
by and between ▇▇▇▇▇ County, Nevada and ▇▇▇▇ Design & Development, LLC, dated
as of April 15, 2002 and recorded April 29, 2002, in Book 20020429 as Document
No. 03372, of Official Records, (f) that certain Cost Participation Agreement
for Pedestrian Bridges at Spring Mountain Road and Las Vegas Boulevard South,
by and between ▇▇▇▇▇ County, Nevada and the Company, dated as of January 21,
2003 and recorded January 29, 2003, in Book 20030129 as Document No. 03174, of
Official Records, and (g) any other agreements relating to the construction of
the Projects entered into between the Company and a Governmental Authority.
"Disbursement Account" means the account referenced in
Section 2.2.3 of the Disbursement Agreement and established pursuant to the
Company Disbursement Collateral Account Agreement.
"Disbursement Agent" means Deutsche Bank Trust Company
Americas, in its capacity as the disbursement agent under the Disbursement
Agreement and its successors in such capacity.
"Disbursement Agreement" means that certain Master
Disbursement Agreement dated as of December 14, 2004 among the Company, the
Bank Agent, the 2014 Notes Indenture Trustee and the Disbursement Agent.
"Dollar" and "$" means dollars in lawful currency of the
United States of America.
"Entertainment Facility" means the Avenue Q showroom or
entertainment facility adjoining the Phase I Project on the Site.
"Event of Default" has the meaning given in Section 7.1 of
the Disbursement Agreement.
"Event of Force Majeure" means any event that causes a delay
in the construction of the Projects and is outside any Loan Party's reasonable
control but only to the extent (a) such event does not arise out of the
negligence or willful misconduct of any Loan Party and (b) such event
consists: of an Act of God (such as tornado, flood, hurricane, etc.); fires
and other casualties; strikes, lockouts or other labor disturbances (except to
the extent taking place at the Site only); riots, insurrections or civil
commotions; embargoes, shortages or unavailability of materials, supplies,
labor, equipment and systems that first arise after the Closing Date, but only
to the extent caused by another act, event or condition covered by this clause
(b); the requirements of law, statutes, regulations and other Legal
Requirements enacted after the Closing Date; orders or judgments; or any
similar types of events, provided that the Company has sought to mitigate the
impact of the delay.
"Event of Loss" means, with respect to any property or asset
(tangible or intangible, real or personal), any of the following: (i) any
loss, destruction or damage of such property or asset; (ii) 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 (iii) any
settlement in lieu of clause (ii) above.
"Exhausted" means, (a) with respect to the Bank Credit
Facility, the time at which the Commitment under such Facility has been
utilized, the Bank Proceeds Account, as the case may be, has no funds
remaining on deposit therein and no further Advances are available thereunder
for the payment of Project Costs, (b) with respect to the 2014 Notes, the time
at which no funds remain in the 2014 Notes Proceeds Account and (c) with
respect to the Company's Funds Account, the Completion Guaranty Deposit
Account or the Project Liquidity Reserve Account, the time at which no funds
remain on deposit therein.
"Facility" or "Facilities" means, as the context may
require, any or all of the Bank Credit Facility and the 2014 Notes Proceeds.
"Facility Agreements" means, collectively, the Bank Credit
Agreement and the 2014 Notes Indenture.
"Fairway Villas" means the eighteen additional luxury suites
fairway villas to be built as part of the Phase I Project on the portion of
the Phase I Site referred to as "Area 7" under the Phase I Primary
Construction Contract.
"Final Completion" means that, with respect to each Project:
(a) the Completion Date for such Project shall have occurred, (b) such Project
shall have received a permanent certificate of occupancy from the Building
Department (and copies of such certificate shall have been delivered to the
Disbursement Agent, the Bank Agent, and the Construction Consultant), (c) a
Notice of Completion has been posted with respect to such Project and recorded
in the Office of the County Recorder of ▇▇▇▇▇ County, Nevada and the statutory
period for filing mechanics liens under Nevada law with respect to work
performed before filing such Notice of Completion has expired, (d) the Funding
Agents have received final 101.6 endorsements from the Title Insurer insuring
the priority of their respective Liens on the Project Security, (e) the
Company shall have delivered to the Disbursement Agent, the Bank Agent and the
2014 Notes Indenture Trustee its Final Completion Certificate certifying that
(i) all Project Punchlist Items for such Project have been completed and the
Company has settled with the Contractors all claims for payments and amounts
due under the Contracts relating to such Project and the Company has received
a final lien release from each Contractor and Subcontractor as required under
the Disbursement Agreement, each in the form of Exhibit H-3 of the
Disbursement Agreement, (f) the Construction Consultant and the Project
Architect and the Primary Contractor for such Project each shall have
delivered its Final Completion Certificate and the Company and the
Construction Consultant shall have accepted the Primary Contractor's Final
Completion Certificate in accordance with Section 6.2.2 of the Disbursement
Agreement, (g) the Company shall have delivered to the Funding Agents and the
Construction Consultant an "as built survey" of such Project, and (h) the
Company shall have delivered from the surety under each Payment and
Performance Bond delivered in connection with any Contracts relating to such
Project required pursuant to Section 5.9 of the Disbursement Agreement a
"Consent of Surety to Final Payment" (AIA form G707).
"Final Completion Certificates" means, collectively, the
Final Completion Certificates in substantially the forms of Exhibits U-1, U-2,
U-3, U-4, U-5 and U-6 to the Disbursement Agreement to be delivered by the
Company, the Construction Consultant, the Project Architects and the Primary
Contractors, as the case may be.
"Final Completion Date" means, with respect to each Project,
the date on which the Disbursement Agent countersigns the Company's Final
Completion Certificate pursuant to Section 2.9 of the Disbursement Agreement
acknowledging that Final Completion of such Project has occurred.
"Final Plans and Specifications" means, with respect to any
particular work or improvement, Plans and Specifications which (i) have
received final approval from all Governmental Authorities required to approve
such Plans and Specifications prior to completion of the work or improvements;
(ii) contain sufficient specificity to permit the completion of the work or
improvement and (iii) are consistent with the standards set forth in Exhibits
V-1 and V-2 of the Disbursement Agreement.
"Financing Agreements" means, collectively, the Disbursement
Agreement, the Bank Credit Agreement, the 2014 Notes Indenture, the Security
Documents, the 2014 Notes, the Collateral Agency Agreement, any fee letters or
engagement letters to which the Arrangers, the Bank Agent, the Collateral
Agent, the Nevada Collateral Agent or the Disbursement Agent is a party, and
any other loan or security agreements entered into on, prior to or after the
Closing Date with the Disbursement Agent, the Bank Agent, the 2014 Notes
Indenture Trustee, the Collateral Agent or the Nevada Collateral Agent in
connection with the financing of the Projects.
"Funding Agents" means, subject to Section 11.15 of the
Disbursement Agreement, collectively, the Bank Agent and the 2014 Notes
Indenture Trustee.
"Funding Sources" means the Bank Credit Facility, the 2014
Notes Proceeds, amounts on deposit in the Company's Funds Account and (to the
extent permitted under Section 5.5.3 of the Disbursement Agreement) amounts on
deposit in the Completion Guaranty Deposit Account and the Project Liquidity
Reserve Account.
"Gaming/Liquor Licenses" means all licenses, permits,
approvals, authorizations, exemptions, waivers, finding of suitability and
registrations issued by the Nevada Gaming Authorities and required by the
Company and its Affiliates to own and operate the Projects.
"Golf Course" means the ▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇▇ ▇. ▇▇▇▇ designed
18-hole golf course to be situated on the Golf Course Land.
"Golf Course Land" means the land on which the Golf Course
is located, as more particularly described in Part A of Exhibit Q-3 to the
Disbursement Agreement.
"Golf Course Land Easements" means the easements
appurtenant, easements in gross, license agreements and other rights running
for the benefit of the Company, or ▇▇▇▇ Golf and/or appurtenant to the Golf
Course Land, including, without limitation, those certain easements and
licenses described in the Title Policy.
"Golf Course Lease" means that certain Golf Course Lease
dated as of December 14, 2004 between ▇▇▇▇ Golf, as landlord, and the Company,
as tenant.
"Governmental Authority" means any national, state or local
government (whether domestic or foreign), any political subdivision thereof or
any other governmental, quasi-governmental, judicial, public or statutory
instrumentality, authority, body, agency, bureau or entity, (including the
Nevada Gaming Authorities, any zoning authority, the FDIC, the Comptroller of
the Currency or the Federal Reserve Board, any central bank or any comparable
authority), any entity exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to government or any arbitrator
with authority to bind a party at law.
"Hard Costs" means:
(a) with respect to the Phase I Project, the Project
Costs set forth in the Phase I Project Budget under the following Line Items or
Line Item Categories:
(i) GMP Contract Line Item Category;
(ii) Interior Furnishings/Signage/Electronic
Systems Line Item Category;
(iii) Owner FF&E Line Item Category;
(iv) Miscellaneous Capital Projects Line Item
Category;
(v) Golf Course Line Item Category; and
(vi) Parking Garage Line Item Category.
(b) with respect to the Phase II Project, the Line Items
and Line Item Categories set forth in the Phase II Project Budget delivered by
the Company pursuant to Section 3.4.2 and designated by the Company to be
associated with Hard Costs (which designation shall be reasonably acceptable
to the Disbursement Agent and the Construction Consultant and substantially
similar to those designated as Hard Costs for the Phase I Project under clause
(a) above).
"Hazardous Substances" means (statutory acronyms and
abbreviations having the meaning given them in the definition of
"Environmental Laws" under the Bank Credit Agreement) substances defined as
"hazardous substances," "pollutants" or "contaminants" in Section 101 of the
CERCLA; those substances defined as "hazardous waste" by the RCRA; those
substances designated as a "hazardous substance" pursuant to Section 311 of
the CWA; those substances regulated as a hazardous chemical substance or
mixture or as an imminently hazardous chemical substance or mixture pursuant
to Sections 6 or 7 of the TSCA; those substances defined as "contaminants" by
Section 1401 of the SDWA, if present in excess of permissible levels; those
substances regulated by the Oil Pollution Act; those substances defined as a
pesticide pursuant to Section 2(u) of the FIFRA; those substances defined as a
source, special nuclear or by-product material by Section 11 of the AEA; those
substances defined as "residual radioactive material" by Section 101 of the
UMTRCA; those substances defined as "toxic materials" or "harmful physical
agents" pursuant to Section 6 of the OSHA); those substances defined as
hazardous wastes in 40 C.F.R. Part 261.3; those substances defined as
hazardous waste constituents in 40 C.F.R. Part 260.10, specifically including
Appendix VII and VIII of Subpart D of 40 C.F.R. Part 261; those substances
designated as hazardous substances in 40 C.F.R. Parts 116.4 and 302.4; those
substances defined as hazardous substances or hazardous materials in 49 C.F.R.
Part 171.8; those substances regulated as hazardous materials, hazardous
substances, or toxic substances in any other "Environmental Laws" as such term
is defined in the Bank Credit Agreement, and in the regulations adopted and
publications promulgated pursuant to said laws, whether or not such
regulations or publications are specifically referenced herein.
"Home Site Land" means a tract of land of approximately 20
acres located on the Golf Course where residential and non-gaming related
developments may be built after release of the Home Site Land in accordance
with Section 7.5 of the Bank Credit Agreement and Section 10.03 of the 2014
Notes Indenture.
"Improvements" means the buildings, fixtures and other
improvements to be situated on the Mortgaged Property.
"In Balance" means that, at the time of calculation and
after giving effect to any requested Advance (or, if no Advance is then being
requested, after deducting from Available Funds the amount of costs incurred
but not paid since the date of the immediately preceding Advance), (a) the
Unallocated Phase I Contingency Balance equals or exceeds the Required Phase I
Minimum Contingency, (b) after the Phase II Approval Date, the Unallocated
Phase II Contingency Balance equals or exceeds the Required Phase II Minimum
Contingency, (c) the Available Funds equal or exceed the sum of the aggregate
Remaining Costs for each Line Item Category allocated to each of the Phase I
Project and, after the Phase II Approval Date, the Phase II Project in the
applicable Project Budget plus the Required Phase I Minimum Contingency plus
the Required Phase II Minimum Contingency and (d) there shall be no negative
number identified for any Line Item Category in column L ("Variance
Over/Under") of the Summary Anticipated Cost Reports.
"Independent Consultants" means, collectively, the Insurance
Advisor and the Construction Consultant.
"Insurance Advisor" means ▇▇▇▇▇ USA Inc., or its successor,
appointed from time to time in accordance with Section 8.1 of the Disbursement
Agreement; provided, however, that the parties acknowledge and agree that,
upon the effectiveness of ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇'▇ departure
from ▇▇▇▇▇ USA Inc., ▇▇▇▇▇-▇▇▇▇▇▇, LLC shall automatically be deemed to be the
successor Insurance Advisor to ▇▇▇▇▇ USA, Inc.
"Insurance Advisor's Closing Certificate" means a closing
certificate in the form of Exhibit B-3 to the Disbursement Agreement.
"Intercreditor Agreement" means that certain Amended and
Restated Intercreditor Agreement dated as of December 14, 2004 between the
Bank Agent and the 2014 Notes Indenture Trustee.
"Interest Rate Agreement" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or
other similar agreement or arrangement (including, without limitation, the
"Specified Hedge Agreements" as such term is defined in the Bank Credit
Agreement).
"IP Security Agreement" means that certain Intellectual
Property Security Agreement dated as of December 14, 2004 made by the Company
for the benefit of the Collateral Agent.
"▇▇▇▇▇ Land" means the approximately 18 acres of land
located across from the Projects on ▇▇▇▇▇ ▇▇▇▇ and Sands Avenue and owned as
of the Closing Date by Wynn Sunrise.
"Las Vegas Jet" means Las Vegas Jet, LLC, a Nevada limited
liability company.
"Last Project Final Completion Date" means (i) the Final
Completion Date of the Phase I Project (if the Phase II Approval Date shall
have not occurred on or prior to the Phase II Revolving Commitment Sunset
Date); otherwise (ii) the Final Completion Date of the Phase II Project (if
the Phase II Approval Date shall have occurred on or prior to the Phase II
Revolving Commitment Sunset Date).
"Legal Requirements" means all laws, statutes, orders,
decrees, injunctions, licenses, permits, approvals, agreements and regulations
of any Governmental Authority having jurisdiction over the matter in question,
including, without limitation, Nevada Gaming Laws.
"Lender" means any of the Bank Lenders and the 2014
Noteholders.
"Letter of Credit" has the meaning given to such term in the
Bank Credit Agreement.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected under
applicable law (including any conditional sale or other title retention
agreement, any lease in the nature thereof and any option or other agreement
to sell or give a security interest in such asset but excluding any license or
similar agreement (such as an option to obtain a license) of intellectual
property).
"Line Item" means each of the individual line items set
forth in the Anticipated Cost Reports and the Monthly Requisition Reports (as
in effect from time to time), which individual line items shall be reasonably
acceptable to the Disbursement Agent and the Construction Consultant.
"Line Item Category" means
(a) with respect to the Phase I Project Budget, each of
the following line item categories:
(i) Land and Buildings;
(ii) Global Express Airplane Purchase;
(iii) GMP Contract;
(iv) Interior Furnishings/Signage/Electronic
Systems;
(v) Owner FF&E;
(vi) Miscellaneous Capital Projects;
(vii) Golf Course;
(viii) Parking Garage;
(ix) Capitalized Interest & Commitment Fees;
(x) Pre-Opening Expense;
(xi) Transaction Fees & Expenses;
(xii) Design and Engineering Fees;
(xiii) Working Capital Requirements at Opening;
(xiv) Entertainment Production;
(xv) Insurance/Utilities/Security;
(xvi) Property Taxes;
(xvii) Government Approvals & Permits;
(xviii) Miscellaneous Operating Costs; and
(xix) Phase I Construction Contingency; and
(b) with respect to the Phase II Project Budget, each of
the line item categories included in the Phase II Project Budget delivered by
the Company and approved by the Majority of the Arrangers pursuant to Section
3.4.2.
"Loan Parties" shall mean the Company, Capital Corp., Wynn
Sunrise, Wynn Show Performers, ▇▇▇▇ Golf, World Travel, LLC, Las Vegas Jet,
and each other Subsidiary of the Company (other than the Completion Guarantor)
which is a party to a Material Project Document or a Security Document.
"Loans" has the meaning given such term in the Bank Credit
Agreement.
"Local Company Collateral Account Agreement(s)" means one or
more control agreements with respect to the Cash Management Account and the
Company's Payment Account substantially in the form of Exhibit I (or as
otherwise approved by the Disbursement Agent) and entered into by a bank that
is reasonably acceptable to the Disbursement Agent pursuant to Sections 2.2.4
and 2.2.6 of the Disbursement Agreement.
"Loss Proceeds" has the meaning given in Section 5.14.1 of
the Disbursement Agreement.
"Major Project Participant" has the meaning given in the
Bank Credit Agreement.
"Majority of the Arrangers" shall have the meaning given in
the Bank Credit Agreement.
"Material Adverse Effect" means a material adverse condition
or material adverse change in or affecting (a) the business, assets,
liabilities, property, condition (financial or otherwise), results of
operations, prospects, value or management of the Company and the other Loan
Parties, taken as a whole, or of any Project Credit Support Provider, (b) the
Projects, (c) the ability of the Company to achieve the Phase I Opening Date
prior to the Phase I Scheduled Opening Date, the Phase I Substantial
Completion Date prior to the Phase I Scheduled Substantial Completion Date,
the Phase I Completion Date on or prior to the Phase I Scheduled Completion
Date, the Phase II Opening Date prior to the Phase II Scheduled Opening Date
and the Phase II Completion Date prior to the Phase II Scheduled Completion
Date; (d) the validity or enforceability of any Financing Agreement; (e) the
validity, enforceability or priority of the Liens purported to be created
under the Security Documents; or (f) the rights and remedies of any Secured
Party under any Financing Agreement.
"Material Construction Agreements" means any of the Phase I
Construction Agreements, the Phase I Professional Design Services Agreements,
the Construction Guaranty, each Contract entered into with the Phase II Major
Contractors or the Phase II Major Architects, and, without duplication, any
Construction Agreement with a total contract amount or value in excess of
$15,000,000, and each Payment and Performance Bond issued to support any of
the foregoing.
"Material Project Documents" has the meaning given to the
term "Material Contracts" in the Bank Credit Agreement.
"Monthly Requisition Report" means one or more Monthly
Requisition Reports substantially in the form of Appendix III to Exhibit C-1
to the Disbursement Agreement or as otherwise approved by the Disbursement
Agent and which provides the information therein segregated by Line Item
Categories and by Line Item for the Phase I Project and, from and after the
Phase II Approval Date, the Phase II Project.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., a Delaware
corporation, or any successor thereof.
"Mortgaged Property" means, collectively, all real and
personal property which is subject or is intended to become subject to the
security interests or liens granted by any Deeds of Trust.
"Nevada Collateral Agent" means Bank of America, N.A. in its
capacity as collateral agent under the Collateral Agency Agreement and its
successors in such capacity.
"Nevada Gaming Authorities" means, collectively, the Nevada
Gaming Commission, the Nevada State Gaming Control Board, and the ▇▇▇▇▇ County
Liquor and Gaming Licensing Board and any other federal, state or local agency
having jurisdiction over gaming operations in the State of Nevada.
"Nevada Gaming Laws" means the Nevada Gaming Control Act, as
codified in Chapter 463 of the Nevada Revised Statutes, as amended from time
to time, and the regulations of the Nevada Gaming Commission promulgated
thereunder, as amended from time to time, and other laws or regulations
promulgated by the Nevada Gaming Authorities and applying to gaming operations
in the State of Nevada.
"Notice of Advance Request" means a Notice of Advance
Request in the form of Exhibit D to the Disbursement Agreement.
"Obligations" means (a) all loans, advances, debts,
liabilities, and obligations, howsoever arising, owed by the Company or any
other Loan Party to any Lender of every kind and description (whether or not
evidenced by any note or instrument and whether or not for the payment of
money), direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising, pursuant to the terms of any of Financing
Agreements including all interest (including interest accruing after the
maturity of the Loans and the 2014 Notes and interest accruing after the
filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Loan Party, whether or not
a claim for post-filing or post-petition interest is allowed in such
proceeding), fees, premiums, if any, charges, expenses, attorneys' fees and
accountants fees chargeable to any Loan Party in connection with its dealings
with the such Loan Party and payable by any Loan Party hereunder or thereunder
and including, without limitation, all "Obligations" as defined in the Bank
Credit Agreement; (b) any and all sums advanced by the Disbursement Agent or
the Collateral Agent in order to preserve the Project Security or preserve any
Secured Party's security interest in the Project Security, including all
Protective Advances; and (c) in the event of any proceeding for the collection
or enforcement of the Obligations after an Event of Default shall have
occurred and be continuing, the reasonable expenses of the Collateral Agent of
retaking, holding, preparing for sale or lease, selling or otherwise disposing
of or realizing on the Project Security, or of any exercise by any Secured
Party of its rights under the Security Documents, together with reasonable
attorneys' fees and court costs.
"Opening Conditions" means, collectively, with respect to
each Project, the following:
(a) the Funding Agents shall have received from the Company
its Opening Date Certificate, pursuant to which the Company certifies that:
(i) the construction of such Project and all
infrastructure and other improvements required to
be constructed under applicable Legal Requirements
or pursuant to the Development Agreements shall
have been completed (except for Project Punchlist
Items with respect to such Project) in accordance
with the Plans and Specifications;
(ii) all furnishings, fixtures and equipment necessary
to use and occupy the various portions of such
Project for their intended uses shall have been
installed and shall be operational;
(iii) all Project Costs (other than Project Costs
consisting of (A) Retainage Amounts, and other
amounts, that, as of the applicable Opening Date,
are being withheld from the Contractors in
accordance with the provisions of the Project
Documents, (B) amounts being contested in
accordance with the Financing Agreements so long as
adequate reserves have been established through an
allocation in the Anticipated Cost Report for such
Project and in accordance with any requirements of
such Financing Agreements, (C) amounts payable in
respect of Project Punchlist Items with respect to
such Project to the extent not covered by the
foregoing clause (A) and (D) amounts incurred by
any Contractors or Subcontractors within the last
thirty (30) days and to be paid under the current
Advance Request which has been submitted but not
yet disbursed) shall have been paid in full;
(iv) such Project shall be served by, and shall be
equipped to accept water, gas, electric, sewer,
sanitary sewer, storm drain and other facilities
and utilities necessary for use of such Project and
each portion thereof for its intended uses, which
utility service is provided by public or private
utilities over utility lines, pipes, wires and
other facilities that run solely over public
streets or private property (in the case of private
property, pursuant to recorded easements);
(v) a Project Certificate of Occupancy shall have been
issued for such Project and each other Permit
required to be obtained prior to opening of such
Project shall have been obtained (including the
gaming license for the Project);
(vi) such Project (other than the premises to be
occupied by individual retail and restaurant
tenants in such Project) shall be ready to open for
business to the general public for its intended
uses; provided that in all events all rooms shall
be ready for occupancy, and with respect to the
Phase I Project, each restaurant shall be ready to
open for business, and, at least sixty-seven
percent (67%) of the retail tenants shall be ready
to open for business and with respect to the Phase
II Project, each restaurant shall be ready to open
for business and at least sixty-seven percent (67%)
of the retail tenants (excluding the Retail
Facility) shall be ready to open for business; and
(vii) the Company shall have delivered an update to the
Projections.
(b) the Construction Consultant has delivered its
Opening Date Certificate approving the Company's
Opening Date Certificate with respect to such
Project and the Project Architect has delivered its
Opening Date Certificate;
(c) the remaining work on the Project shall be such
that it will not interfere with or disrupt the
operation of such Project for its intended purposes
or detract from the aesthetic appearance of such
Project other than to a de minimis extent;
(d) the failure to complete the remaining work would
not interfere with or disrupt the operation of such
Project for its intended purposes or detract from
the aesthetic appearance of such Project other than
to a de minimis extent; and (e) the Company shall
have available a fully trained staff to operate
such Project in accordance with industry standards;
provided, however that the Phase I Project may open
for business despite the fact that the
Entertainment Facility and the Fairway Villas are
not sufficiently completed so as to satisfy the
foregoing conditions and the Phase II Project may
open for business despite the fact that the Retail
Facility is not sufficiently completed so as to
satisfy the foregoing conditions.
"Opening Date" means, with respect to each Project, the date
on which the Disbursement Agent countersigns the Company's Opening Date
Certificate for such Project acknowledging that the Opening Conditions have
been satisfied and such Project shall be open for business.
"Opening Date Certificates" means, collectively, the
certificates substantially in the form of Exhibits ▇-▇, ▇-▇, ▇-▇, ▇-▇, S-5 and
S-6 to the Disbursement Agreement to be delivered by the Company, the
Construction Consultant, the Primary Contractors and the Project Architects,
as the case may be.
"Operating Costs" means all actual cash costs incurred by
the Company and related to the operation of the Projects or any portion
thereof in the ordinary course of business, including, without limitation,
costs incurred for labor, consumables, utility services, and all other
operation related costs; provided that (a) Operating Costs shall not include
non-cash charges (including depreciation and amortization) and (b) Debt
Service accruing with respect to Advances made under the Bank Credit Agreement
or from the 2014 Notes Proceeds Account to pay Project Costs allocated to the
Phase I Project under the Phase I Project Budget shall constitute Operating
Costs from and after the Phase I Opening Date but not prior to such date.
"Operative Documents" means the Financing Agreements and the
Project Documents.
"Outside Phase I Completion Deadline" means September 30,
2005, as extended pursuant to Section 6.3.2 of the Disbursement Agreement.
"Outside Phase I Substantial Completion Deadline" means June
30, 2005, as extended pursuant to Section 6.3.2 of the Disbursement Agreement.
"Outside Phase I Opening Deadline" means June 30, 2005, as
extended pursuant to Section 6.3.2 of the Disbursement Agreement.
"Outside Phase II Completion Deadline" means March 31, 2008,
as extended pursuant to Section 6.3.2 of the Disbursement Agreement.
"Outside Phase II Opening Deadline" means December 31, 2007,
as extended pursuant to Section 6.3.2 of the Disbursement Agreement.
"Outstanding Releases" has the meaning given in Section
3.2.7 of the Disbursement Agreement.
"Payment and Performance Bond" means any payment and
performance bond delivered under any Contract or Subcontract (including the
Phase I Primary Contractor Payment and Performance Bond) in favor of the
Company or any Primary Contractor, the Collateral Agent, the Bank Agent
(acting on behalf of the Bank Lenders) and the 2014 Notes Indenture Trustee
(acting on behalf of the 2014 Noteholders) supporting the Contractor's or
Subcontractor's obligations under any such Contract.
"Permits" means all authorizations, consents, decrees,
permits, waivers, exemptions, privileges, approvals from and registrations and
filings with all Governmental Authorities necessary for the construction,
development, ownership, lease or operation of a Project in accordance with the
Operative Documents, including all Gaming/Liquor Licenses.
"Permitted Encumbrances" means with respect to the Deed of
Trust executed by the Company, the ▇▇▇▇ Las Vegas Permitted Encumbrances; with
respect to the Deeds of Trust executed by Wynn Golf, the ▇▇▇▇ Golf Permitted
Encumbrances; and with respect to the Deeds of Trust executed by Wynn Sunrise,
the Wynn Sunrise Permitted Encumbrances.
"Permitted Investments": means, prior to the Last Project
Final Completion Date, the following:
(a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States
government or issued by any agency thereof and
backed by the full faith and credit of the United
States, in each case maturing within 18 months from
the date of acquisition;
(b) shares of money market mutual or similar funds
which invest exclusively in assets satisfying the
requirements of clause (a) of this definition; or
(c) shares of, or an investment in, the JPMorgan
Federal Money Market Fund.
"Permitted Liens" means Liens permitted under each of the
Facility Agreements.
"Person" means any natural person, corporation, partnership,
firm, association, Governmental Authority or any other entity whether acting
in an individual, fiduciary or other capacity.
"Phase I Anticipated Cost Report" means any of the
anticipated cost reports in the forms of Exhibit F-3 to the Disbursement
Agreement and which provides, for each Line Item Category relating to the
Phase I Project, the detailed supporting information broken down by Line Item.
"Phase I Aqua Theater and Showroom Design Services
Agreements" means (i) that certain Professional Design Services Agreement
dated as of October 5, 2001 between the Phase I Aqua Theater and Showroom
Designer and the Company; and (ii) that certain Professional Design Services
Agreement dated as of June 30, 2004 between the Phase I Aqua Theater and
Showroom Designer and the Company.
"Phase I Aqua Theater and Showroom Designer" means ▇▇▇▇▇▇▇
Architecture, a Professional Corporation, a Nevada corporation (fka ▇.▇.
▇▇▇▇▇▇▇ ▇▇, Chtd.).
"Phase I Architect" means ▇▇▇▇▇▇/▇▇▇▇▇▇▇▇ Architects Ltd.,
LLC, a Nevada limited liability company.
"Phase I Architect's Agreement" means that certain Agreement
between Owner and Project Architect dated as of October 30, 2002 between the
Company and the Phase I Architect.
"Phase I Completion Date" means the date on which the
Disbursement Agent countersigns the Company's Completion Certificate for the
Phase I Project (including the Entertainment Facility and the Fairway Villas)
pursuant to Section 2.7 of the Disbursement Agreement acknowledging that
Completion of the Phase I Project has occurred.
"Phase I Construction Agreements" means, collectively, the
Phase I Primary Construction Contract, the Phase I Golf Course Construction
Contract and the Phase I Parking Structure Construction Contract.
"Phase I Excess Cash Flow Credit Amount" means at any given
time from and after the Phase II Approval Date, the sum of (1) the sum of all
dollar amounts included under the column "Excess Cash Flow" for the
then-current calendar quarter and all ensuing calendar quarters (or any
portion thereof) prior to the Phase II Scheduled Opening Date included in the
Phase I Projected Excess Cash Flow Schedule plus (2) the lesser of: (x) the
sum of all dollar amounts included under the column "Excess Cash Flow" from
the calendar quarter (or portion thereof) occurring from and after the Phase
II Scheduled Opening Date and all ensuing calendar quarters prior to the
then-anticipated Phase II Project Final Completion Date included in the Phase
I Projected Excess Cash Flow Schedule and (y) the Remaining Costs with respect
to the Phase II Project then anticipated to become due and payable from and
after the Phase II Scheduled Opening Date. To the extent required, the Excess
Cash Flow attributable to any calendar quarter shall be pro-rated based on the
number of days in such quarter.
"Phase I Golf Course Contractor" means ▇▇▇▇▇▇▇▇▇ Golf
Construction Company.
"Phase I Golf Course Construction Contract" means the Lump
Sum Agreement, effective as of February 18, 2003, by and between the Company
and the Phase I Golf Course Contractor, relating to the construction of the
Golf Course, as amended by (i) Change Order No. 1 dated May 21, 2003, (ii)
Change Order No. 2 dated September 18, 2003, (iii) Change Order No. 3 dated
January 26, 2004, (iv) Change Order No. 4 dated April 5, 2004 and (v) Change
Order No. 5 dated September 30, 2004.
"Phase I Golf Course Design Services Agreement" means that
certain Agreement dated as of October 21, 2002 between the Phase I Golf Course
Designer and the Company.
"Phase I Golf Course Designer" means T.J.F. Golf, Inc., a
Florida corporation.
"Phase I Opening Date" means the date on which the
Disbursement Agent countersigns the Company's Opening Date Certificate for the
Phase I Project (which may exclude the Entertainment Facility and the Fairway
Villas) acknowledging that the Opening Conditions for the Phase I Project have
been satisfied.
"Phase I Parking Structure Construction Contract" means that
certain Design/Build Agreement dated as of June 6, 2002 between the Company
and the Phase I Parking Structure Contractor, as amended by (i) Change Order
No. 1 dated December 27, 2002, (ii) Change Order No. 2 dated February 18,
2003, (iii) Change Order No. 3 dated July 11, 2003, (iv) Change Order No. 4
dated August 29, 2003 and (v) Change Order No. 5 dated March 18, 2004.
"Phase I Parking Structure Contractor" means Bomel
Construction Co., Inc., a California corporation.
"Phase I Primary Contractor" means ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Associates, Inc., a Nevada corporation.
"Phase I Primary Construction Contract" means that certain
Agreement for Guaranteed Maximum Price Construction Services for Le Reve dated
as of June 4, 2002 between the Company and the Phase I Primary Contractor, as
amended by (i) Change Order No. 1 dated as of August 12, 2002, (ii) Change
Order No. 2 dated as of August 31, 2003, (iii) Change Order No. 3 dated March
31, 2004, (iv) Changer Order No. 4 dated June 30, 2004, (v) Change Order No. 5
dated August 30, 2004 and (vi) Change Order No. 6 dated November 30, 2004.
"Phase I Primary Contractor Payment and Performance Bond"
means that certain payment and performance bond issued by American
International Companies (AIG) and ▇▇▇▇▇▇ Insurance, jointly and severally, in
favor of the Company, the Bank Agent (acting on behalf of the Bank Lenders)
and the 2014 Notes Indenture Trustee (acting on behalf of the 2014
Noteholders) supporting the Phase I Primary Contractor's obligations under the
Phase I Primary Construction Contract.
"Phase I Professional Design Services Agreements" means,
collectively, the Phase I Golf Course Design Services Agreement, the Phase I
Aqua Theater and Showroom Design Services Agreements and the Phase I
Architect's Agreement.
"Phase I Project" means ▇▇▇▇ Las Vegas hotel and casino
resort, with related parking structure and golf course facilities to be
developed at the Site, all as more particularly described in Exhibit Q-1 to
the Disbursement Agreement.
"Phase I Project Budget" means the budget for the Phase I
Project delivered pursuant to Section 3.1.13 of the Disbursement Agreement, as
amended from time to time in accordance with Section 6.3 of the Disbursement
Agreement.
"Phase I Project Schedule" means the construction schedule
for the Phase I Project delivered pursuant to Section 3.1.14 of the
Disbursement Agreement, as from time to time in accordance with Section 6.3 of
the Disbursement Agreement.
"Phase I Projected Excess Cash Flow Schedule" means the
schedule of projected "Excess Cash Flow" (as such term is defined in the Bank
Credit Agreement) reasonably anticipated by the Company to be generated by
operation of the Phase I Project from and after the Phase I Opening Date until
the Phase II Project Final Completion Date delivered pursuant to Section
3.1.37 of the Disbursement Agreement and any subsequent or revised schedule
adopted as provided in Section 5.1.4(b) of the Disbursement Agreement.
"Phase I Reports" shall have the meaning given in Section
3.1.31 of the Disbursement Agreement.
"Phase I Required Contractor and Architect Advance
Certificates" means, collectively, with respect to each Advance Request
relating to the Phase I Project, the certificates substantially in the form of
▇▇▇▇▇▇▇▇ ▇-▇, ▇-▇, ▇-▇, ▇-▇, and C-7 to the Disbursement Agreement from the
Phase I Architect, the Phase I Primary Contractor, the Phase I Golf Course
Designer, the Phase I Golf Course Contractor and the Phase I Aqua Theater and
Showroom Designer, as the case may be, required to be attached thereto
pursuant to Section 2.3.1(b) of the Disbursement Agreement.
"Phase I Scheduled Completion Date" means August 26, 2005,
as the same may from time to time be extended pursuant to Section 6.3 of the
Disbursement Agreement.
"Phase I Scheduled Opening Date" means April 28, 2005, as
the same may from time to time be extended pursuant to Section 6.3 of the
Disbursement Agreement.
"Phase I Scheduled Substantial Completion Date" means April
27, 2005, as the same may from time to time be extended pursuant to Section
6.3 of the Disbursement Agreement.
"Phase I Substantial Completion" means that each of the
following has occurred:
(a) the Opening Date for the Phase I Project shall have
occurred under Section 6.4 of the Disbursement
Agreement;
(b) all Contractors and Subcontractors have been paid
in full for all work performed with respect to the
Phase I Project (other than (A) Retainage Amounts
and other amounts that, as of the Phase I
Substantial Completion Date, are being withheld
from the Contractors and Subcontractors in
accordance with the provisions of the Project
Documents, (B) amounts being contested in
accordance with the Financing Agreements so long as
adequate reserves have been established through an
allocation in the Phase I Anticipated Cost Report
and in accordance with any requirements of such
Financing Agreements, (C) amounts with respect to
the Entertainment Facility and the Fairway Villas,
and (D) amounts payable in respect of Project
Punchlist Items for the Phase I Project (excluding
the Entertainment Facility and the Fairway Villas)
to the extent not covered by the foregoing clause
(A));
(c) for Project Punchlist Items, a list of any
remaining Project Punchlist Items for the Phase I
Project (excluding the Entertainment Facility and
the Fairway Villas) (including the cost of each
such remaining Project Punchlist Item) shall have
been delivered to the Construction Consultant and
the Disbursement Agent by the Company and approved
by the Construction Consultant as a reasonable
final punchlist (such approval not to be
unreasonably withheld);
(d) the Phase I Primary Contractor, the Phase I Golf
Course Contractor, the Phase I Parking Structure
Contractor, the Phase I Architect, the Phase I Golf
Course Designer and the Phase I Aqua Theater and
Showroom Designer each shall have delivered its
Completion Certificate certifying, among other
things, as to "substantial completion" of the work
under its respective Construction Agreement with
respect to the Phase I Project (excluding the
Entertainment Facility and the Fairway Villas) has
occurred and such certifications shall have been
accepted by the Company and the Construction
Consultant in accordance with Section 6.2.2 of the
Disbursement Agreement; and
(e) for each Contract and Subcontract for which a
Payment and Performance Bond is required pursuant
to Section 5.9 of the Disbursement Agreement and
for which the Company (or the applicable
Contractor) will release retainage as a result of
Phase I Substantial Completion being achieved, the
Company shall have delivered from the surety under
each such Payment and Performance Bond (i) a
"Consent of Surety to Reduction in or Partial
Release of Retainage" (AIA form G707A) if a partial
release of Retainage Amounts held under such
Contract or Subcontract will be made or (ii) a
"Consent of Surety to Final Payment" (AIA form
G707) if a release of all Retainage Amounts held
under such Contract or Subcontract will be made).
"Phase I Substantial Completion Certificates" means,
collectively, the Completion Certificates substantially in the form of
Exhibits T-1, T-2, T-3, T-4, T-5, T-6, T-7 and T-8 to the Disbursement
Agreement to be delivered by the Company, the Construction Consultant, the
Phase I Project Architect, the Phase I Primary Contractor, the Phase I Golf
Course Contractor, the Phase I Parking Structure Contractor, the Phase I Golf
Course Designer, the Phase I Aqua Theater and Showroom Designer relating to
Phase I Substantial Completion of the Phase I Project (excluding the
Entertainment Facility and the Fairway Villas).
"Phase I Substantial Completion Date" means the date on
which the Disbursement Agent countersigns the Company's Phase I Substantial
Completion Certificate pursuant to Section 2.6 of the Disbursement Agreement
acknowledging that Phase I Substantial Completion has occurred.
"Phase I Summary Anticipated Cost Report" means an
anticipated cost report in the form of Exhibit F-2 to the Disbursement
Agreement and which provides the information indicated therein with respect to
the Phase I Project segregated by each Line Item Category.
"Phase II Anticipated Cost Report" means any of the
anticipated cost reports in the forms of Exhibit F-6 to the Disbursement
Agreement and which provides, for each Line Item Category relating to the
Phase II Project, the detailed supporting information broken down by Line
Item.
"Phase II Approval Date" means the date on which the
Disbursement Agent and the Bank Agent countersign the Company's Phase II
Approval Date Certificate pursuant to Section 3.4 of the Disbursement
Agreement.
"Phase II Architect" means one or more Contractors
reasonably acceptable to the Majority of the Arrangers that enters into the
Phase II Architect's Agreement with the Company to design the Phase II
Project.
Phase II Architect's Agreement" means one or more agreements
to be entered into between the Company and the Phase II Architect for the
design of the Phase II Project in form and substance reasonably satisfactory
to the Majority of the Arrangers.
"Phase II Completion Date" means the date on which the
Disbursement Agent countersigns the Company's Completion Certificate for the
Phase II Project pursuant to Section 2.7 of the Disbursement Agreement
acknowledging that Completion of the Phase II Project has occurred.
"Phase II Deliverables" means the Phase II Project Budget,
the Phase II Project Schedule, the Plans and Specifications relating to the
Phase II Project, the updated Construction Consultant's Report and each other
document or agreement relating to the Phase II Project required to be
delivered by the Company or any other Person under Section 3.4 of the
Disbursement Agreement in order to satisfy the conditions precedent to the
Phase II Approval Date.
"Phase II Fifty Percent Completion Date" means the date on
which the following conditions shall have been satisfied as set forth in the
Phase II Fifty Percent Completion Date Certificate delivered by the Company
and (other than with respect to clause (b)(B) below) confirmed by the
Construction Consultant in its Phase II Fifty Percent Completion Date
Certificate: (a) 50% of the work required to achieve completion of the Phase
II Project has been completed (determined by (i) the amount of Hard Costs
incurred to such date under the Phase II Project Budget (excluding those
allocated to the "Owner FF&E" Line Item Category and any other Hard Costs
reasonably approved by the Construction Consultant), as compared to (ii) the
total amount of Hard Costs set forth in the Phase II Project Budget (as then
in effect) (excluding those allocated to the "Owner FF&E" Line Item Category
and any other Hard Costs reasonably approved by the Construction Consultant)
and (b) all Contractors and Subcontractors have been paid in full or will be
paid in full with the pending Advance Request for work performed with respect
to the Phase II Project through such date (other than (A) Retainage Amounts,
and other amounts, that, as of the Phase II Fifty Percent Completion Date, are
being withheld from the Contractors and Subcontractors in accordance with the
provisions of the Project Documents, and (B) amounts being contested in
accordance with the Financing Agreements so long as adequate reserves have
been established through an allocation in the Phase II Anticipated Cost Report
and in accordance with any requirements of such Financing Agreements) and have
provided lien waivers to the extent required under Section 3.2.7 of the
Disbursement Agreement for all work performed prior to the Phase II Fifty
Percent Completion Date.).
"Phase II Fifty Percent Completion Date Certificates" means
the certificates issued by the Company and the Construction Consultant
substantially in the form of Exhibits R-4 and R-5 to the Disbursement
Agreement.
"Phase II Land" means approximately 20-acre tract of land
upon which the Phase II Project shall be built, as more particularly described
in Part C of Exhibit Q-3 to the Disbursement Agreement.
"Phase II Major Architects" means the Phase II Architect and
each other Contractor designated as such by the Majority of Arrangers (in
consultation with the Construction Consultant) that has entered into a
Contract with the Company to design a material portion of the Phase II
Project.
"Phase II Major Architect's Advance Certificate" means, with
respect to each Advance Request relating to the Phase II Project after the
Phase II Approval Date, a certificate from each Phase II Major Architect, as
applicable, in the form of Exhibit C-8 to the Disbursement Agreement required
to be attached thereto pursuant to Section 2.3.1(c) of the Disbursement
Agreement.
"Phase II Major Contractors" means the Phase II Primary
Contractor and each other Contractor designated by the Majority of Arrangers
(in consultation with the Construction Consultant) that has entered into a
Construction Contract with the Company to build a material portion of the
Phase II Project.
"Phase II Major Contractor's Advance Certificate" means,
with respect to each Advance Request relating to the Phase II Project after
the Phase II Approval Date, a certificate from each Phase II Major Contractor,
as applicable, in the form of Exhibit C-9 to the Disbursement Agreement
required to be attached thereto pursuant to Section 2.3.1(c) of the
Disbursement Agreement.
"Phase II Opening Date" means the date on which the
Disbursement Agent countersigns the Company's Opening Date for the Phase II
Project pursuant to Section 6.4 of the Disbursement Agreement acknowledging
that the Opening Conditions have been satisfied.
"Phase II Primary Contractor" means a Contractor reasonably
acceptable to the Majority of the Arrangers that enters into the Phase II
Primary Construction Contract with the Company to build the Phase II Project.
"Phase II Primary Construction Contract" means one or more
guaranteed, fixed price construction contracts to be entered into by the
Company and a Phase II Primary Contractor for the construction of the Phase II
Project in form and substance reasonably satisfactory to the Majority of the
Arrangers.
"Phase II Project" means Encore at ▇▇▇▇ Las Vegas, a hotel
and casino complex to be developed on the Site and integrated with the Phase I
Project, as more particularly described in Exhibit Q-2 to the Disbursement
Agreement.
"Phase II Project Budget" means the budget for the Phase II
Project delivered by the Company and approved by the Majority of the Arrangers
pursuant to Section 3.4.2 of the Disbursement Agreement, and as amended from
time to time in accordance with Section 6.3 of the Disbursement Agreement.
"Phase II Project Schedule" means the construction schedule
for the Phase II Project delivered by the Company and approved by the Majority
of the Arrangers pursuant to Section 3.4.3 of the Disbursement Agreement, as
from time to time in accordance with Section 6.3 of the Disbursement
Agreement.
"Phase II Revolving Commitment Sunset Date" means June 30,
2005.
"Phase II Scheduled Completion Date" means the completion
date for the Phase II Project set forth in the Phase II Project Schedule
delivered by the Company and approved by the Majority of the Arrangers
pursuant to Section 3.4.3 of the Disbursement Agreement, as the same may from
time to time be extended pursuant to Section 6.3 of the Disbursement
Agreement.
"Phase II Scheduled Opening Date" means the opening date for
the Phase II Project set forth in the Phase II Project Schedule delivered by
the Company and approved by the Majority of the Arrangers pursuant to Section
3.4.3 of the Disbursement Agreement, as the same may from time to time be
extended pursuant to Section 6.3 of the Disbursement Agreement.
"Phase II Summary Anticipated Cost Report" means an
anticipated cost report substantially in the form of Exhibit F-5 to the
Disbursement Agreement and which provides the information indicated therein
with respect to the Phase II Project segregated by each Line Item Category.
"Phase II Twenty-Five Percent Completion Date" means the
date on which the following conditions shall have been satisfied as set forth
in the Phase II Twenty-Five Percent Completion Date Certificate delivered by
the Company and (other than with respect to clause (b)(B) below) confirmed by
the Construction Consultant in its Phase II Twenty-Five Percent Completion
Date Certificate: (a) 25% of the work required to achieve completion of the
Phase II Project has been completed (determined by (i) the amount of Hard
Costs incurred to such date under the Phase II Project Budget (excluding those
allocated to the "Owner FF&E" Line Item Category and any other Hard Costs
reasonably approved by the Construction Consultant), as compared to (ii) the
total amount of Hard Costs set forth in the Phase II Project Budget (as then
in effect) (excluding those allocated to the "Owner FF&E" Line Item Category
and any other Hard Costs reasonably approved by the Construction Consultant)
and (b) all Contractors and Subcontractors have been paid in full or will be
paid in full with the pending Advance Request for work performed with respect
to the Phase II Project through such date (other than (A) Retainage Amounts,
and other amounts, that, as of the Phase II Twenty-Five Percent Completion
Date, are being withheld from the Contractors and Subcontractors in accordance
with the provisions of the Project Documents, and (B) amounts being contested
in accordance with the Financing Agreements so long as adequate reserves have
been established through an allocation in the Phase II Anticipated Cost Report
and in accordance with any requirements of such Financing Agreements) and have
provided lien waivers to the extent required under Section 3.2.7 of the
Disbursement Agreement for all work performed prior to the Phase II
Twenty-Five Percent Completion Date.).
"Phase II Twenty-Five Percent Completion Date Certificates"
means the certificates issued by the Company and the Construction Consultant
in the form of Exhibits R-2 and R-3 to the Disbursement Agreement.
"Plans and Specifications" means all plans, specifications,
design documents, schematic drawings and related items for the design,
architecture and construction of each Project that are listed on Exhibit Q-4
including, from time to time, any further such plans, specifications, design
documents, schematic drawings and related items which are consistent with the
standards of Exhibit Q-4 and delivered pursuant to Section 3.2.11 and Section
3.4.6 of the Disbursement Agreement, in each case, as amended in accordance
with Section 6.2 of this Disbursement Agreement.
"Potential Event of Default" means (i) any event which with
the giving of notice, the lapse of time, or both, would constitute an Event of
Default and (ii) the occurrence of any "Default" under any Facility Agreement.
"Primary Contractors" means, collectively, the Phase I
Primary Contractor and the Phase II Primary Contractor.
"Primary Construction Contracts" means, collectively, the
Phase I Primary Construction Contract and the Phase II Primary Construction
Contract.
"Project(s)" means, collectively, the Phase I Project and
the Phase II Project; provided, however, that, if the Phase II Approval Date
has not occurred on or before the Phase II Revolving Commitment Sunset Date,
then "Project(s)" shall mean solely the Phase I Project.
"Project Architects" means the Phase I Architect and the
Phase II Architect.
"Project Budget" means collectively, the Phase I Project
Budget and, from and after the Phase II Approval Date, the Phase II Project
Budget.
"Project Budget/Schedule Amendment Certificate" means a
certificate substantially in the form of Exhibit E to the Disbursement
Agreement delivered from time to time in accordance with Section 6.3 of the
Disbursement Agreement. "Project Certificate of Occupancy" means a permanent
certificate of occupancy or a temporary certificate of occupancy, in either
case, for any Project issued by the Building Department pursuant to applicable
Legal Requirements which permanent or temporary certificate of occupancy shall
permit such Project to be used for the Project Intended Uses, shall be in full
force and effect and, in the case of a temporary certificate of occupancy, if
such temporary certificate of occupancy shall provide for an expiration date,
the number of days in the period from the Opening Date of such Project to such
expiration date shall be not less than 133% of the number of days that the
Construction Consultant, pursuant to the applicable Opening Date Certificate,
estimates it will take to complete the Project Punchlist Items with respect to
such Project (assuming reasonable diligence in performing the same).
"Project Costs" means all costs incurred or to be incurred
in accordance with the Project Budgets (other than Operating Costs with
respect to the Phase I Project incurred from and after the Phase I Opening
Date and Operating Costs with respect to the Phase II Project incurred from
and after the Phase II Opening Date), which costs shall include, but not be
limited to: (a) all costs incurred under the Contracts, (b) Debt Service
accruing with respect to Advances made under the Bank Credit Agreement or from
the 2014 Notes Proceeds Account to pay Project Costs allocated (i) to either
Project under the applicable Project Budget prior to the Phase I Opening Date
and (ii) to Phase II Project under the Phase II Project Budget from and after
the Phase I Opening Date, (c) reasonable financing, closing and administration
costs related to each Project until the Completion Date for such Project
including, but not limited to, insurance costs (including, with respect to
directors and officers insurance costs, costs relating to such insurance
extending beyond the Phase I Completion Date for such Project), guarantee
fees, legal fees and expenses, financial advisory fees and expenses, technical
fees and expenses (including, without limitation, fees and expenses of the
Construction Consultant and the Insurance Advisor), commitment fees,
management fees, and corporate overhead agency fees (including, without
limitation, fees and expenses of the Disbursement Agent), interest (other than
amounts listed in clause (b) above), taxes (including value added tax), and
other out-of-pocket expenses payable by the Company under all documents
related to the financing and administration of the Phase I Project until the
Phase I Opening Date and the Phase II Project until the Phase II Opening Date,
(d) the costs of acquiring Permits for the Phase I Project prior to the Phase
I Completion Date and the Phase II Project prior to the Phase II Completion
Date, (e) costs incurred in settling insurance claims in connection with
Events of Loss and collecting Loss Proceeds at any time prior to the Last
Project Final Completion Date, (f) working capital costs incurred in
accordance with the Phase I Project Budget prior to the Phase I Opening Date
and the Phase II Project Budget prior to the Phase II Opening Date, (g) cash
to collateralize commercial letters of credit to the extent that payment of
any such cash amount to the vendor or materialman who is the beneficiary of
such letter of credit would have constituted a "Project Cost"; provided that
the aggregate amount of all such letters of credit outstanding at any one time
shall not exceed $25,000,000.
"Project Credit Support Providers" means the Construction
Guarantor, the Completion Guarantor, the issuers of any Phase I Primary
Contractor Payment and Performance Bond and the issuer of any Payment and
Performance Bond for the Phase II Primary Contractor.
"Project Documents" has the meaning given in the Bank Credit
Agreement.
"Project Intended Uses" means the intended uses of the
Projects, as more particularly set forth in Exhibits Q-1 and Q-2 to the
Disbursement Agreement.
"Project Liquidity Reserve Account" means the account
referenced in Section 2.2.8 of the Disbursement Agreement and established
pursuant to the Company Disbursement Collateral Account Agreement.
"Project Punchlist Completion Amount" means, from time to
time from and after the Completion Date, the estimated cost to complete all
remaining Project Punchlist Items if the owner of the Project were to engage
independent, reputable and appropriately experienced and licensed
contractor(s) to complete such work and no other work (certified by the
Company and the Construction Consultant with respect to each Advance from and
after the Completion Date for such Project in their respective certificates in
the form of Exhibits C-1 and C-2 to the Disbursement Agreement).
"Project Punchlist Items" means, with respect to either
Project, minor or insubstantial details of construction or mechanical
adjustment, the non-completion of which, when all such items are taken
together, will not interfere in any material respect with the use or occupancy
of such Projects (or any Project) for the Project Intended Uses or the ability
of the owner or master lessee, as applicable, of any portion of such Projects
(or any tenant thereof) to perform work that is necessary or desirable to
prepare such portion of such Projects for such use or occupancy; provided
that, in all events, "Project Punchlist Items" shall include (to the extent
not already completed), without limitation, the items set forth in the
punchlist to be delivered by the Company in connection with "substantial
completion" under the Primary Construction Contracts and all items that are
listed on the "punchlists" furnished by the Building Department, the Nevada
Department of Transportation or the ▇▇▇▇▇ County Department of Public Works in
connection with, or after, the issuance of the Projects temporary certificate
of occupancy as those that must be completed in order for the Building
Department to issue such Project a permanent certificate of occupancy.
"Project Schedule" means, collectively, the Phase I Project
Schedule and, from and after the Phase II Approval Date, the Phase II Project
Schedule.
"Project Security" means all real and personal property
which is subject or is intended to become subject to the security interests or
liens granted by any of the Security Documents.
"Projections" means the consolidated statements of projected
cash flow, projected debt service and projected income of the Company and its
consolidated Subsidiaries through the seventh anniversary of the Closing Date
(including the Phase I Project and the Phase II Project).
"Protective Advances" means any Advances with respect to (i)
the payment of any delinquent taxes or insurance premiums owed by any of the
Company or its Affiliates with respect to the Projects or other Mortgaged
Property, (ii) the removal of any lien or encumbrance on the Projects or the
Mortgaged Property or the defense of Company's or any of its Affiliates' title
thereto or of the validity, enforceability, perfection or priority of the
liens and security interests granted or purported to be granted pursuant to
the Security Documents, (iii) the payment of Project Costs after delivery of a
Stop Funding Notice by the Disbursement Agent, or (iv) the repair,
maintenance, protection or preservation of the value of the Projects or any
portion thereof, including, without limitation, for payment of heating, gas,
electric and other utility bills.
"Realized Savings" means, with respect to each Line Item
Category, a decrease in the anticipated cost to complete the work contemplated
by such Line Item Category as demonstrated by the Company to the reasonable
satisfaction of the Disbursement Agent and the Construction Consultant, and
reflected through an amendment of the applicable Project Budget pursuant to
Section 6.3 of the Disbursement Agreement. In addition, prior to the Phase I
Completion Date, no Realized Savings obtained with respect to Line Item
Categories allocated to the Phase I Project in the Phase I Project Budget may
be applied to Line Item Categories allocated to the Phase II Project in the
Phase II Project Budget. At no time may Realized Savings obtained with respect
to Line Item Categories allocated to the Phase II Project in the Phase II
Project Budget be applied to Line Item Categories allocated to the Phase I
Project in the Phase I Project Budget.
"Remaining Costs" means, at any given time for any Line Item
Category or Line Item (other than the "Construction Contingency" Line Item
Category), the "Balance to Complete (Net Amount)" set forth in column N of the
Monthly Requisition Report (as in effect from time to time); provided,
however, that any Remaining Costs which, after a particular date (such as the
Phase I Opening Date), do not constitute Project Costs for such Project in
accordance with the definition of "Project Costs" shall be disregarded for
purposes of calculating whether the Project is In Balance.
"Representatives of the Initial Purchasers" means Deutsche
Bank Securities, Inc. and Banc of America Securities LLC.
"Required Contractor and Architect Advance Certificates"
means (a) with respect to the Phase I Project, the Phase I Required Contractor
and Architect Advance Certificates and (b) with respect to the Phase II
Project, the Phase II Major Contractors Advance Certificates and Phase II
Major Architects Advance Certificates.
"Required Phase I Minimum Contingency" means (a) from time
to time prior to the Phase I Opening Date, $5,000,000; and (c) from time to
time after the Phase I Opening Date, the sum of (x) 150% of the Project
Punchlist Completion Amount for the Phase I Project, plus (y) until the Phase
I Completion Date, $500,000.
"Required Phase II Minimum Contingency" means:
(a) initially, from time to time prior to the Phase II
Twenty-Five Percent Completion Date, seventy-five percent of the amount set
forth in the "Phase II Contingency" Line Item Category of the Phase II Project
Budget approved by the Majority of the Arrangers pursuant to Section 3.4;
(b) from time to time after the Phase II Twenty-Five
Percent Completion Date and prior to the Phase II Opening Date, the amount
determined pursuant to the following formula:
RMC = (IC - $1,500,000) * (1.00 - (PC/100)) + $1,500,000
Where:
(1) RMC = Required Phase II Minimum Contingency;
(2) IC = the amount set forth in the "Phase II
Contingency" Line Item Category of the Phase II Project Budget approved by the
Majority of the Arrangers pursuant to Section 3.4 of the Disbursement Agreement;
(3) PC = Percentage of the Project completed as of the
calculation date based upon the Hard Costs incurred as of such date in
accordance with the Project Budget (excluding those allocated to the "Owner
FF&E" Line Item Category and any other Hard Costs reasonably approved by the
Construction Consultant) compared to the total amount set forth such Line Item
Categories in the Project Budget );
provided, however, that if RMC calculated pursuant to the
following formula is greater than the amount set forth in clause (a) above,
then the "Required Phase II Minimum Contingency" shall be deemed to equal the
amount set forth in clause (a) above.
For example, if the amount of the "Phase II Contingency"
Line Item in the approved Phase II Project Budget is $10,000,000 and, as of
the calculation date, the Twenty-Five Percent Completion Date has occurred and
fifty percent (50%) of the Hard Costs allocated to the foregoing Line Item
Categories have been incurred in accordance with the Phase II Project Budget
(PC=50), then RMC = ($10,000,000 - $1,500,000) * (1.00-(30/100)) + $1,500,000=
$8,500,000 * 0.50 + $1,500,000 = $5,750,000.
(c) from time to time after the Phase II Opening Date,
the sum of (x) 150% of the Project Punchlist Completion Amount for the Phase II
Project plus (y) until the Phase II Completion Date (if the Company has elected
to build the Retail Facility), $500,000.
"Required Scope Change Approval" means, with respect to each
proposed Scope Change, each of the following: (a) the consent of the
Construction Consultant, and (b) the consent of the Bank Agent.
"Reserved Amounts" means, collectively, the portion, if any,
of the Completion Guaranty Deposit Account to be reserved to pay Project
Punchlist Items and/or disputed amounts pursuant to clauses (d)(i) and (ii) of
the definition of "Completion Guaranty Release Conditions" after giving effect
to (a) any amounts then on deposit in the Company's Funds Account and the Bank
Proceeds Account and (b) any amounts then available under the Bank Revolving
Credit Facility to pay Project Costs allocated to the Phase I Project in the
Phase I Budget.
"Responsible Officer" means as to any Person, the chief
executive officer, president or chief financial officer of such Person or such
Person's member if such Person is a member-managed limited liability company,
but in any event, with respect to financial matters, the chief financial
officer of such Person.
"Retail Facility" means an up to approximately 60,000 square
foot retail facility adjoining the Projects on the Site (other than any retail
facility included in the Plans and Specifications for the Phase I Project in
effect on the Closing Date).
"Retainage Amounts" means at any given time amounts which
have accrued and are owing under the terms of a Contract for work or services
already provided but which at such time (and in accordance with the terms of
the Contract) are being withheld from payment to the Contractor, until certain
subsequent events (e.g., completion benchmarks) have been achieved under the
Contract.
"S&P" means Standard & Poor's Ratings Group, a New York
corporation, or any successor thereof.
"Scope Change" means any change in the Plans and
Specifications or any other change to the design, layout, architecture or
quality of the Projects from that which is contemplated on the Closing Date,
(unless such change is required by Legal Requirements), including, without
limitation, (a) changes to the "Premises and Assumptions" (as defined in the
Phase I Primary Construction Contract), (b) approval or submission to the
Phase I Primary Contractor of "Drawings" or "Specifications" (each as defined
in the Phase I Primary Construction Contract) that are inconsistent with the
Premises and Assumptions, (c) additions, deletions or modifications in the
"Work" (as defined in the Phase I Primary Construction Contract) (including,
without limitation, the acceptance of any non-conforming "Work" (as defined in
the Phase I Primary Construction Contract) pursuant to Section 10.9 of the
Phase I Primary Construction Contract), (d) the issuance of a "Construction
Change Directive" (as defined in the Phase I Primary Construction Contract)
directing a "Change" (as defined in the Phase I Primary Construction Contract)
in the work and a proposed basis for adjustments, if any, in the "Guaranteed
Maximum Price" (as defined in the Phase I Primary Construction Contract) or
"Contract Time" (as defined in the Phase I Primary Construction Contract), or
any combination of them, (e) modifications to the "Drawings" (as defined in
the Phase I Architect's Agreement) to the extent the same constitute an
"Additional Service" under the Phase I Architect's Agreement and (f) any other
similar changes, modifications or directives entered into or issued under the
Phase II Primary Construction Contract or the Phase II Architect's Agreement.
"Secured Parties" means the Bank Agent, the 2014 Notes
Indenture Trustee, the Bank Lenders, the 2014 Noteholders, the Collateral
Agent, the Nevada Collateral Agent, the counterparties to any Interest Rate
Agreements entered into by the Company under the Bank Credit Agreement (to the
extent that the Credit Agreement permits such Interest Rate Agreements to be
secured) and the Disbursement Agent acting on behalf of any one or more of the
foregoing.
"Securities Intermediary" means Deutsche Bank Trust Company
Americas in its capacity as securities intermediary under the Company
Disbursement Collateral Account Agreement and the Completion Guaranty
Collateral Account Agreement and Bank of America, N.A. in its capacity as bank
under the Local Company Collateral Account Agreements and its successors in
such capacity.
"Security Agreement" means that certain Pledge and Security
Agreement dated as of December 14, 2004 executed by the Company and each other
Loan Party, in favor of the Collateral Agent.
"Security Documents" means, collectively and without
duplication, the Deeds of Trust, the Security Agreement, the Bank
Environmental Indemnity Agreements, the 2014 Notes Environmental Indemnity
Agreements, the Collateral Agency Agreement, the IP Security Agreement, the
Bank Guarantee, the Completion Guaranty, the Construction Guaranty, each
Payment and Performance Bond, the Collateral Account Agreements, the Consents,
and any other deeds of trust, security agreements or collateral account
agreements entered into by any of the Loan Parties and/or one or more of their
direct or indirect Subsidiaries for the benefit of any Secured Party in
accordance with the terms of the Financing Agreements or the Intercreditor
Agreements.
"Shuttle Easement" means that certain Easement Agreement
dated as of December 14, 2004 by ▇▇▇▇ Golf, as grantor, and the Company, as
grantee.
"Site" means all or any portion of the Projects, as
described in Exhibit Q-3 to the Disbursement Agreement and any other real
property which is subject to a lien under any Deeds of Trust. The Site
includes the Golf Course Land, the ▇▇▇▇ Home Site, the Home Site Land and the
▇▇▇▇▇ Land until such time (if ever) as the release conditions set forth in
Section 7.5 of the Bank Credit Agreement and Section 10.03 of the 2014 Notes
Indenture shall have been satisfied,.
"Site Easements" means the easements appurtenant, easements
in gross, license agreements and other rights running for the benefit of the
Company and/or appurtenant to the Site, including, without limitation, those
certain easements and licenses described in the Title Policy. The Site
Easements include the Golf Course Land Easements until such time (if ever) as
the release conditions set forth in Section 7.5 of the Bank Credit Agreement
and Section 10.03 of the 2014 Notes Indenture shall have been satisfied.
"Soft Costs" means:
(a) with respect to the Phase I Project, the Project
Costs set forth in the Phase I Project Budget under the following Line Items or
Line Item Categories:
(i) Capitalized Interest and Commitment Fees;
(ii) Pre-Opening Expense;
(iii) Transaction Fees and Expenses;
(iv) Design and Engineering Fees;
(v) Working Capital Requirements at Opening;
(vi) Entertainment Production;
(vii) Insurance/Utilities/Security;
(viii) Property Taxes;
(ix) Government Approvals and Permits; and
(x) Miscellaneous Operating Costs.
(a) with respect to the Phase II Project, the Line Items
and Line Item Categories set forth in the Phase II Project Budget delivered by
the Company pursuant to Section 3.4.2 and designated by the Company to be
associated with Soft Costs (which designation shall be reasonably acceptable to
the Disbursement Agent and the Construction Consultant and substantially
similar to those designated as Soft Costs for the Phase I Project under clause
(a) above).
"Stop Funding Notice" has the meaning given in Section
2.3.2(b) of the Disbursement Agreement.
"Stop Funding Request" has the meaning given in Section
2.3.3(b) of the Disbursement Agreement.
"Subcontract" means any subcontract or purchase order
entered into with any Subcontractor.
"Subcontractor" means any direct or indirect subcontractor
of any tier under any Contract.
"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 Disbursement Agreement shall refer to a Subsidiary or
Subsidiaries of the Company.
"Summary Anticipated Cost Reports" means, collectively, the
Phase I Summary Anticipated Cost Report and, from and after the Phase II
Approval Date, the Phase II Summary Anticipated Cost Report.
"Tax" shall mean shall mean any federal, state, local,
foreign or other tax, levy, impost, fee, assessment or other government
charge, including without limitation income, estimated income, business,
occupation, franchise, property, payroll, personal property, sales, transfer,
use, employment, commercial rent, occupancy, franchise or withholding taxes,
and any premium, including without limitation interest, penalties and
additions in connection therewith.
"Third Party Claims" has the meaning given in Section 10.3
of the Disbursement Agreement.
"Title Insurer" means Commonwealth Land Title Company.
"Title Policies" means, collectively, the policies of title
insurance issued by Title Insurer as of the Closing Date, as provided in
Section 3.1.26 of the Disbursement Agreement, including all amendments
thereto, endorsements thereof and substitutions or replacements therefor.
"2014 Notes" means the 6-5/8% First Mortgage Notes Due 2014
in the aggregate principal amount of $1.3 billion issued by the Company and
Capital Corp., as co-issuers, pursuant to the 2014 Notes Indenture.
"2014 Notes Environmental Indemnity Agreements" means those
certain Indemnity Agreement dated as of December 14, 2004 and made by each of
the Company, ▇▇▇▇ Golf and Wynn Sunrise for the benefit of the 2014 Notes
Indenture Trustee and certain other indemnified parties.
"2014 Notes Indenture" means that certain First Mortgage
Notes Indenture dated as of December 14, 2004 among the Company, Capital
Corp., the guarantors signatory thereto, and the 2014 Notes Indenture Trustee.
"2014 Notes Indenture Trustee" means U.S. Bank National
Association, in its capacity as the initial trustee under the 2014 Notes
Indenture and its successors in such capacity.
"2014 Notes Proceeds" means the amounts deposited in the
2014 Notes Proceeds Account on the Closing Date.
"2014 Notes Proceeds Account" means the account referenced
in Section 2.2 of the Disbursement Agreement and established pursuant to the
Company Disbursement Collateral Account Agreement.
"Unallocated Phase I Contingency Balance" means, from time
to time, the amount of the "Phase I Construction Contingency" Line Item
Category as set forth in the Phase I Project Budget then in effect.
"Unallocated Phase II Contingency Balance" means, from time
to time, the amount of the "Phase II Construction Contingency" Line Item
Category as set forth in the Phase II Project Budget then in effect.
"Unincorporated Materials" has the meaning given in Section
3.2.19 of the Disbursement Agreement.
"Water Access Easement" means that certain Access Easement
Agreement dated as of December 14, 2004 by ▇▇▇▇ Golf, as grantor, and the
Company, as grantee.
"▇▇▇▇ Golf" means ▇▇▇▇ Golf, LLC, a Nevada limited liability
company.
"▇▇▇▇ Golf Deed of Trust" means that certain Deed of Trust
dated as of December 14, 2004 between ▇▇▇▇ Golf, as trustor, and Nevada Title
Company, as trustee, for the benefit of the Collateral Agent, as beneficiary.
"▇▇▇▇ Golf Permitted Encumbrances" has the meaning given in
Section 3.1.26 of the Disbursement Agreement.
"Wynn Home Site" means the approximately two acre tract of
land located on the Golf Course where ▇▇▇▇▇▇▇ ▇. ▇▇▇▇'▇ personal residence may
be built after release of the ▇▇▇▇ Home Site in accordance with Section 7.5 of
the Bank Credit Agreement and Section 10.03 of the 2014 Notes Indenture.
"▇▇▇▇ Las Vegas Deed of Trust" means that certain Deed of
Trust dated as of December 14, 2004 between the Company, as trustor, and
Nevada Title Company, as trustee, for the benefit of the Collateral Agent, as
beneficiary.
"▇▇▇▇ Las Vegas Permitted Encumbrances" has the meaning
given in Section 3.1.26 of the Disbursement Agreement.
"Wynn Show Performers" means Wynn Show Performers, LLC, a
Nevada limited liability company.
"Wynn Sunrise" means ▇▇▇▇ Sunrise, LLC, a Nevada limited
liability company.
"Wynn Sunrise Deed of Trust" means that certain Deed of
Trust dated as of December 14, 2004 between Wynn Sunrise, as trustor, and
Nevada Title Company, as trustee, for the benefit of the Collateral Agent, as
beneficiary.
"Wynn Sunrise Easements" means the easements appurtenant,
easements in gross, license agreements and other rights running for the
benefit of the Company, or Wynn Sunrise and/or appurtenant to the Wynn Sunrise
Land, including, without limitation, those certain easements and licenses
described in the Title Policy.
"Wynn Sunrise Land" means the land owned by Wynn Sunrise, as
more particularly described in Part B of Exhibit Q-3 to the Disbursement
Agreement.
"Wynn Sunrise Permitted Encumbrances" has the meaning given
in Section 3.1.26 of the Disbursement Agreement.
RULES OF INTERPRETATION
-----------------------
The following rules of interpretation shall apply to the
Disbursement Agreement and this Exhibit A unless otherwise required by the
context or as specifically provided:
1. Words in the singular include the plural and words in the
plural includes the singular.
2. The word "or" is not exclusive.
3. A reference to a Legal Requirement includes any amendment
or modification of such Legal Requirement, and all regulations, rulings and
other Legal Requirements promulgated under such Legal Requirement unless, in
any case, otherwise provided in such statute or the Disbursement Agreement.
4. A reference to a Person includes its permitted successors
and permitted assigns.
5. Accounting terms have the meanings assigned to them by
generally accepted accounting principles in the United States of America, as
in effect from time to time, as applied by the accounting entity to which they
refer.
6. A reference to "including" means including without
limiting the generality of any description preceding such term.
7. A reference in the Disbursement Agreement to an article,
section, exhibit, schedule, annex part, clause, paragraph, party, appendix or
other attachment is to the article, section, exhibit, schedule, annex, part,
clause, paragraph, party, appendix or other attachment of such document unless
otherwise indicated in such document
8. References to any document, instrument or agreement (a)
shall include all exhibits, schedules and other attachments thereto, (b) shall
include all documents, instruments or agreements issued or executed in
replacement thereof, and (c) shall mean, unless specifically indicated, such
document, instrument or agreement as in effect on the date hereof,
notwithstanding any termination, such expiration or amendment of such
agreement unless all of the parties to the Disbursement Agreement are
signatories to such amendment or unless the signatories of such amendment have
the right to amend the Disbursement Agreement without the consent of the other
parties to the Disbursement Agreement, in which case any references shall be
to such agreement as so amended.
9. The words "hereof," "herein" and "hereunder" and words of
similar import when used in the Disbursement Agreement shall refer to such
document as a whole and not to any particular provision of such document.
10. References to "days" shall mean calendar days, unless
the term "Banking Days" shall be used.
11. The Financing Agreements are the result of negotiations
among, and have been reviewed by, the Company, the Company's subsidiaries, the
Funding Agents, the Lenders and the Disbursement Agent. Accordingly, the
Financing Agreements shall be deemed to be the product of all parties thereto,
and no ambiguity shall be construed in favor of or against any such Person.
12. Words referring to a gender include any gender.
13. The headings, subheadings and tables of contents are
solely for convenience of reference and shall not constitute a part of any
such document nor shall they affect the meaning, construction or effect of any
provision thereof nor shall they modify, define, expand or limit any of the
terms or provisions thereof.
14. A reference to a particular section, paragraph or other
part of a particular statute shall be deemed to be a reference to any other
section, paragraph or other part substitute therefor from time to time unless
otherwise specified.
15. If a capitalized term describes, or shall be defined by
reference to, a document, instrument that has not as of any particular date
been executed and delivered and such document, instrument or agreement is
attached as an exhibit to the Disbursement Agreement, such reference shall be
deemed to be such form and, following such execution and delivery and subject
to paragraph 8 above, to the document, instrument or agreement as so executed
and delivered.
