UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM 8-K
CURRENT REPORT
_____________________
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): May 24, 2005
Wynn Resorts, Limited
(Exact Name of Registrant as Specified in its Charter)
Nevada 000-50028 46-0484987
(State or Other Jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
3131 Las Vegas Boulevard South
Las Vegas, Nevada 89109
(Address of Principal Executive Offices) (Zip Code)
(702) 770-7555
(Registrant's telephone number, including area code)
Check the appropriate box below if the Form 8-K is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
|_| Written communication pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
|_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
|_| Pre-commencements communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
As provided for in the December 2004 refinancing of the outstanding
indebtedness of Wynn Las Vegas, LLC ("WLV"), a wholly owned subsidiary of the
Registrant and the managing member of World Travel, LLC ("World Travel"), on
May 24, 2005, World Travel entered into a financing for an aggregate amount of
$44,750,000 which is secured by World Travel's corporate aircraft. In
connection with the financing, World Travel and Wells Fargo Bank Northwest,
National Association , as owner trustee under the Trust Agreement, dated May
10, 2002, with World Travel (the "Owner Trustee," and, together with World
Travel, the "Borrowers") (i) executed a Promissory Note and Agreement that was
accepted and agreed to by Bank of America, N.A., as a lender, and Wells Fargo
Bank, National Association, not in its individual capacity but solely as
collateral agent (the "Collateral Agent"), (ii) executed a Promissory Note and
Agreement that was accepted and agreed to by The CIT Group/ Equipment
Financing, Inc., as a lender, and the Collateral Agent; and (iii) entered into
an Aircraft Security Agreement with the Collateral Agent (collectively, the
"Loan Agreements"). The Loan Agreements provide for secured term loans in the
aggregate amount of $44,750,000 (the "Term Loans"). The Term Loans will
terminate and be payable in full on May 24, 2010. For purposes of calculating
interest, the Term Loans will be maintained as LIBOR based loans plus a
borrowing margin of 2.375%. Interest will be payable at the end of each
three-month interest period. Interest will also be payable at the time of
prepayment of the Term Loans (in whole or in part) and at maturity. In the
event of a default under the Loan Agreements, the interest rate otherwise
payable under the Term Loans will be increased by 2% and will be payable upon
demand.
The Term Loans are obligations of the Borrowers, and the obligations of World
Travel are guaranteed by WLV. The obligations of the Borrowers and WLV are
secured by a first priority security interest in World Travel's corporate
aircraft, title to which is owned by the Owner Trustee. The obligations of
World Travel and WLV rank pari passu in right of payment with their existing
and future senior indebtedness, including indebtedness with respect to the 6
5/8% First Mortgage Notes due 2014 issued by WLV and Wynn Las Vegas Capital
Corp. (the "First Mortgage Notes") and WLV's existing credit facilities, and
rank senior in right of payment to all of their existing and future
subordinated indebtedness. In addition to scheduled amortization payments, the
Borrowers will be required to make a mandatory prepayment of the Term Loans if
certain events of loss with respect to the aircraft occur. From and after
December 31, 2006, the Borrowers may, at their option, prepay all or any
portion of the Term Loans subject to a minimum prepayment of $10,000,000.
The Loan Agreements incorporate the customary negative covenants and financial
covenants included in WLV's existing credit facilities (as in effect from time
to time or, if terminated, as last in effect), including negative covenants
that restrict World Travel's ability to: incur additional indebtedness,
including guarantees; create, incur, assume or permit to exist liens on
property and assets; declare or pay dividends and make distributions; engage in
mergers, investments and acquisitions; enter into transactions with affiliates;
enter into sale-leaseback transactions; execute modifications to material
contracts; engage in sales of assets; make capital expenditures; and make
optional prepayments of certain indebtedness. The financial covenants, which
are applicable only to WLV, include (i) maintaining a ratio of earnings before
interest, taxes, depreciation and amortization to total interest expense, and
(ii) total debt to earnings before interest, taxes, depreciation and
amortization.
The Loan Agreements contain certain events of default, including the failure to
make payments when due, defaults in the performance of covenants or agreements
in the Loan Agreements or the WLV guaranty of World Travel's obligations
thereunder, breaches of representations and warranties in the Loan Agreements
or the WLV guaranty of World Travel's obligations thereunder, and failure to
pay certain judgments and certain events of bankruptcy, subject in some cases
to applicable notice provisions and grace periods. The consequences of an event
of default may include acceleration of all amounts due under the Term Loans and
various other remedies that could include, among other things, foreclosure on
the aircraft securing the Term Loan. The Loan Agreements are filed herewith as
Exhibits 10.1, 10.2 and 10.3 and are incorporated herein by reference.
Bank of America, N.A. has performed investment banking, commercial lending and
advisory services for the Registrant and its affiliates from time to time, for
which they have received customary fees and expenses. An affiliate of Bank of
America, N.A. also acted as an initial purchaser of the First Mortgage Notes.
These parties may, from time to time, engage in transactions with, and perform
services for, the Registrant and its affiliates in the ordinary course of their
business.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 1.01 is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits
(c) Exhibits:
Exhibit
Number Description
------- -----------
10.1 Promissory Note and Agreement, dated May
24, 2005, by Wells Fargo Northwest,
National Association, not in its
individual capacity but solely as owner
trustee, and World Travel, LLC; and
accepted and agreed to by Bank of
America, N.A., as lender and Wells Fargo
Bank, National Association, not in its
individual capacity but solely as
collateral agent.
10.2 Promissory Note and Agreement, dated May
24, 2005, by Wells Fargo Northwest,
National Association, not in its
individual capacity but solely as owner
trustee, and World Travel, LLC; and
accepted and agreed to by The CIT Group/
Equipment Financing, Inc., as lender,
and Wells Fargo Bank, National
Association, not in its individual
capacity but solely as collateral agent.
10.3 Aircraft Security Agreement, dated May
24, 2005, between Wells Fargo Northwest,
National Association, not in its
individual capacity but solely as owner
trustee, World Travel, LLC and Wells
Fargo Bank, National Association, not in
its individual capacity but solely as
collateral agent.
10.4 Guaranty, dated May 24, 2005, by Wynn
Las Vegas, LLC in favor of The CIT
Group/ Equipment Financing, Inc., Bank
of America, N.A. and Wells Fargo Bank,
National Association, not in its
individual capacity but solely as
collateral agent.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: May 25, 2005
Wynn Resorts, Limited
By: /s/ John Strzemp
------------------------
John Strzemp
Chief Financial Officer
Exhibit 10.1
EXECUTION COPY
[BOFA]
PROMISSORY NOTE AND AGREEMENT
$22,375,000.00 May 24, 2005
Total Amount of Note
This Promissory Note and Agreement is made pursuant to that certain
Security Agreement, dated as of May 24, 2005 (the "Security Agreement"),
between each of the undersigned (hereinafter individually referred to as a
"Maker" and collectively as "Makers"), and Wells Fargo Bank, National
Association, not in its individual capacity, but solely as Collateral Agent
(the "Collateral Agent") for the benefit of Bank of America, N.A. ("BofA") and
The CIT Group/Equipment Financing, Inc. ("CIT"; BofA and CIT, together with
their successors and assigns, are each hereinafter individually referred to as
a "Lender" and collectively the "Lenders"). For value received, Makers, jointly
and severally, promise to pay to BOFA or its registered assigns, located at 300
South 4th Street, 2nd Floor, Las Vegas, Nevada 89101, the principal amount of
TWENTY-TWO MILLION THREE HUNDRED SEVENTY-FIVE THOUSAND DOLLARS, together with
interest thereon at the interest rate per annum equal to the Interest Rate (as
defined in Appendix 1) then in effect, calculated from the date hereof until
the payment in full of such advance in accordance with the provisions of this
note. This note shall mature and be payable in full on the Maturity Date. This
note is subject to prepayment in accordance with "Prepayment Rider" dated the
date hereof and appended hereto. Contemporaneously with entering into this
note, the Makers are entering into a separate note (the "Other Note") identical
with this note with the other Lender. Capitalized terms used herein and not
otherwise defined shall have the meaning set forth in Appendix 1 hereto.
Makers shall make payments of principal and interest toward each
advance, in the principal amount and on the dates indicated on Schedule 3
attached hereto and with interest accrued thereon on each Payment Date;
provided, however, that the final payment hereon shall be in the amount of the
then unpaid balance with accrued interest thereon, and shall include all
amounts owing by Makers to BOFA under this note.
Each payment by the Makers on account of principal of and interest on
this note shall be made by the Makers to the Collateral Agent and directed by
the Collateral Agent to BOFA. All payments to be made by the Makers hereunder,
whether on account of principal, interest or otherwise, shall be made without
setoff or counterclaim and shall be made by the Makers to the Collateral Agent,
for the benefit of BOFA, prior to 1:00 p.m. New York City time, to Collateral
Agent's Payment Office as set forth below its signature hereto (or to such
other office as may be designated by the Collateral Agent from time to time in
a written notice) in funds consisting of lawful currency of the United States
of America which shall be immediately available on the scheduled date when such
payment is due. Payments received after 1:00 p.m., New York City time, on the
date due shall be deemed received on the next succeeding Business Day and shall
be subject to interest at the Overdue Rate.
If an Event of Default has occurred and is continuing, including,
without limitation, any payment not made when due, interest shall accrue on the
outstanding principal amount of this note at the Overdue Rate, but in no event
greater than the highest rate permitted by relevant law. The Makers agree to
pay all reasonable attorneys' fees, incurred by the holder in enforcing its
rights under this note. Except as otherwise specifically provided herein
(including the Prepayment Rider) or by applicable law, the Makers shall have no
right to prepay this note. If any payment of principal is not made when due,
any other payment is not made within five (5) days of the date when due, or if
there is any other Event of Default that has occurred and is continuing, all
remaining payments together with all interest accrued thereon and other amounts
due and owing, including, without limitation, any Applicable Administrative
Charge, shall, at the option of the holder, without notice, become immediately
due and payable ; provided that upon any default described in subparagraph 9(c)
[bankruptcy] of the Security Agreement, all remaining payments of principal
together with all accrued interest thereon and other amounts due and owing,
including, without limitation, any Applicable Administrative Charge, shall,
without notice, become immediately due and payable. In the event any payment of
principal is not made when due, any other payment is not made within five (5)
days of the date when due, or if there is any other Event of Default that has
occurred and is continuing, (i) the Collateral Agent and the Lenders may
exercise any rights under and with respect to any of the Operative Documents,
(ii) any Lender may proceed to protect and enforce the rights of such Lender by
an action at law, suit in equity or other appropriate proceeding, whether for
the specific performance of any agreement contained herein or in any Operative
Document, or for an injunction against a violation of any of the terms hereof
or thereof, or in aid of the exercise of any power granted hereby or thereby or
by law or otherwise, and (iii) the Collateral Agent and any Lender may exercise
any rights or remedies under applicable law. No course of dealing and no delay
on the part of any Lender in exercising any right, power or remedy shall
operate as a waiver thereof or otherwise prejudice such Lender's rights, powers
or remedies. No right, power or remedy conferred by this note any holder
thereof shall be exclusive of any other right, power or remedy referred to
herein or therein or now or hereafter available at law, in equity, by statute
or otherwise. In no event shall the Makers of this note, upon demand by the
holder hereof for payment of the indebtedness evidenced hereby, upon
acceleration of the maturity thereof or otherwise, be obligated to pay any
interest in excess of the amount permitted by law. Any acceleration of
indebtedness, if elected by holder, shall be subject to all applicable laws,
including laws relating to rebates and refunds of unearned charges. The Makers,
any endorsers, guarantors and any other persons obligated hereon:
(a) agree that the holder may grant to any one or more of
them extensions of the time for payment of this note and/or the
maturity of any payment or payments, in whole or in part, without
limit as to the number of such extensions, or the period or periods
thereof;
(b) waive presentation for payment, demand for payment,
notice of non-payment or dishonor, protest and notice of protest, and
notice of the holder's election to accelerate the unpaid balance of
all remaining payments; and
(c) agree that the failure or delay to perfect or continue
the perfection of any security interest in any property which secures
the obligations of the Makers or any endorser, guarantor or other
person obligated hereon, or to protect the property covered by such
security interest, shall not release or discharge them or any of them.
If at any time this transaction would be usurious under applicable
law, then, regardless of any provision of this note or any agreement between
the holder and the Makers made in connection with, or as security for, the
payment hereof, it is agreed that:
(a) the total of all consideration which constitutes
interest under applicable law that is contracted for, charged or
received upon this note or any such other agreements shall under no
circumstances exceed the maximum rate of interest authorized by
applicable law and any excess shall be credited on the note by the
holder hereof or credited to the Makers; and
(b) if the holder of this note elects to accelerate its
maturity or, if permitted herein, the Makers prepay this note, any
amounts which because of such action would constitute interest may
never include more than the maximum rate of interest authorized by
applicable law and any excess interest, if any, provided for in this
note or otherwise, shall be credited to Makers automatically as of the
date of acceleration or prepayment.
MAKERS WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS NOTE. The
undersigned shall be jointly and severally liable hereunder and all provisions
hereof shall apply to each of them.
This note is a registered instrument. A manually signed copy of this
note shall be evidence of the Lender's rights and is not a bearer instrument.
The Makers shall maintain a register to record and register the ownership of
this note by each Lender and any transfer thereof. No transfer by any Lender
(whether or not with the Makers' consent) of any interest of such Lender in
this note or in the rights to receive any payments hereunder shall be effective
unless and until a book entry of such transfer is made upon the register
maintained by the Makers. Prior to the entry into such register of any transfer
as provided in the immediately preceding sentences, the Makers and any
guarantor shall deem and treat each owner of this note reflected in the Makers'
register as owner of this note or the rights to receive any payments hereunder
as the owner thereof for all purposes.
This note may only be amended, and the observance of any term hereof
may be waived (either retroactively or prospectively), with (and only with) the
written consent of the Makers and the Required Lenders; provided that any
amendment or waiver which would amend, modify, waive or supplement any of the
provisions of the Schedules attached to this Note or modify, postpone, reduce
or forgive, in whole or in part, any payment of principal or interest hereunder
with respect to any Lender shall require the consent of such Lender.
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
(EXCEPT TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
Any suit by Collateral Agent or any Lender to enforce any claim
arising out of this note or any other Operative Document may be brought in any
state or Federal court located in New York having subject matter jurisdiction,
and with respect to any such claim, each party to the Operative Documents
hereby irrevocably: (a) submits to the non-exclusive jurisdiction of such
courts; and (b) consents to the service of process out of said courts in the
manner provided for notices set forth below. The Makers irrevocably waive, to
the fullest extent permitted by law: (A) any claim, or any objection, that it
now or hereafter may have, that venue is not proper with respect to any such
suit, action or proceeding brought in such a court located in New York
including, without limitation, any claim that any such suit, action or
proceeding brought in such court has been brought in an inconvenient forum; and
(B) any claim that the Makers is not subject to personal jurisdiction or
service of process in such forum. The Makers agree that any suit to enforce any
claim arising out of the Operative Documents or any course of conduct or
dealing of Collateral Agent or any Lender shall be brought and maintained
exclusively in any state or Federal court located in New York. Nothing in this
paragraph shall affect the right of Collateral Agent or any Lender to bring any
action or proceeding against Makers or the Collateral in the courts of any
other jurisdiction. The Makers agree that a final judgment in any action or
proceeding in a state or Federal court within the United States may be enforced
in any other jurisdiction by suit on the judgment or in any other manner
provided by law.
All demands, notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when personally delivered
or one Business Day after being sent by overnight delivery service or three
days after being deposited in the mail, certified mail postage prepaid, or when
sent by facsimile transmission, if confirmed by mechanical confirmation and if
a copy thereof is promptly thereafter personally delivered, sent by overnight
delivery service or so deposited in the mail, addressed to: (A) the Makers or
Collateral Agent at the address set forth below, or at such other address as
may hereafter be furnished by either party to the other and (B) each Lender at
its address set forth below its signature to its Note:
(i) if to the Makers:
WELLS FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner Trustee under
the Trust Agreement dated as of May 10,
2002 with World Travel, LLC as
Trustor
299 South Main Street, 12th Floor
MAC U1228-120
Salt Lake City, Utah 84111
Attention: Corporate Trust Services
Telecopy: 801-246-5053
Telephone: 801-246-5630
WORLD TRAVEL, LLC
3131 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: Ron Kramer
Facsimile: (702) 770-1100
Telephone: (702) 770-7700
With a copy to:
World Travel, LLC
3131 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: General Counsel
Facsimile: (702) 770-1520
Telephone: (702) 770-2111
(ii) if to the Collateral Agent:
Wells Fargo Bank,
National Association
299 South Main Street, 12th Floor
MAC U1228-120
Salt Lake City, Utah 84111
Attn: Corporate Trust Services
[remainder of page intentionally left blank; signature page follows]
MAKERS:
WELLS FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner
Trustee under the Trust Agreement
dated as of May 10, 2002 with World
Travel, LLC as Trustor
By: /s/ Val Orton
-----------------------------------
Title: Vice President
WORLD TRAVEL, LLC
By: WYNN LAS VEGAS, LLC,
a Nevada limited liability company,
its sole member
By: WYNN RESORTS HOLDINGS, LLC,
a Nevada limited liability company,
its sole member
By: WYNN RESORTS, LIMITED,
a Nevada corporation,
its sole member
By: /s/ Marc H. Rubinstein
------------------------------
Name: Marc H. Rubinstein
Title: Sr. VP & Secretary
ACCEPTED AND AGREED TO:
LENDER:
BANK OF AMERICA, N.A.
By /s/ Peter J. Vitale
-----------------------------
Title Senior Vice President
COLLATERAL AGENT:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Collateral Agent
By /s/ Val Orton
-----------------------------
Title Vice President
LENDER PAYMENT OFFICE:
BANK OF AMERICA, N.A.
Address:
300 South 4th Street, 2nd Floor
Las Vegas, Nevada 89101
Credit contact:
Peter J. Vitale
Senior Vice President
Phone: 702-654-3062
Fax: 702-654-7158
Email: peter.j.vitale@bankofamerica.com
Operations contact:
Ann Laczkowski
Assistant Vice President
Credit Support Specialist
Phone: 702-654-8364
Fax: 702-654-7158
Email: ann.laczkowski@bankofamerica.com
Address for wire transfers:
Bank of America, N.A.
300 South 4th Street, 2nd Floor
Las Vegas, Nevada 89101
ABA #122400724
Account Number: 000990106395
Account Name: Bank of America ICA
Reference 1: World Travel, LLC
Reference 2: Identify the purpose of wire
Attention: Ann Laczkowski
COLLATERAL AGENT PAYMENT OFFICE:
WELLS FARGO BANK, NATIONAL ASSOCIATION
299 South Main Street, 12th Floor
MAC U1228-120
Salt Lake City, Utah 84111
Address of wire transfers:
Wells Fargo Bank, N.A.
ABA: 121000248
Corporate Trust Services
Account No. 051-09221-15
Re: Wynn MSN 29441 Acct. No. 40966
APPENDIX 1
TO
OPERATIVE DOCUMENTS
In the Operative Documents, unless the context otherwise requires:
(a) any term defined below by reference to another
instrument or document shall continue to have the meaning ascribed
thereto whether or not such other instrument or document remains in
effect;
(b) words importing the singular include the plural and vice
versa;
(c) a reference to a part, clause, section, article, exhibit
or schedule is a reference to a part, clause, section and article of,
and exhibit and schedule to, such Operative Document;
(d) a reference to any statute, regulation, proclamation,
ordinance or law includes all statutes, regulations, proclamations,
ordinances or laws amending, supplementing, supplanting, varying,
consolidating or replacing them, and a reference to a statute includes
all regulations, proclamations and ordinances issued or otherwise
applicable under that statute;
(e) a reference to a document includes any amendment or
supplement to, or replacement or novation of, that document;
(f) a reference to a party to a document includes that
party's successors and permitted assigns; and
(g) references to "including" means including without
limiting the generality of any description preceding such term and for
purposes hereof the rule of ejusdem generis shall not be applicable to
limit a general statement followed by or referable to an enumeration
of specific matters to matters similar to those specifically
mentioned.
Further, each of the parties to the Operative Documents and their
counsel have reviewed and revised the Operative Documents, or requested
revisions thereto, and the usual rule of construction that any ambiguities are
to be resolved against the drafting party shall be inapplicable in construing
and interpreting the Operative Documents.
"Act" is defined in Paragraph 6(f) of the Security Agreement.
"Adjusted Base Rate" shall mean the Base Rate plus the Applicable
Lender Margin.
"Adjusted LIBOR Rate" shall mean the LIBOR Rate plus the Applicable
Lender Margin.
"Administrative Charge" shall mean an amount equal to the amount, if
any, required to compensate each Lender for any loss (other than loss of
anticipated profits) or expense that such Lender may incur as a result of the
Makers' payment of principal on a Promissory Note and Agreement on any date
other than on a Payment Date. Such indemnification may include an amount equal
to the excess, if any, of (i) the amount of interest that would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment to the last day of such Interest period
in each case at the applicable rate of interest for such Loans provided for
herein (excluding, however, the Applicable Lender Margin included therein, if
any) over (ii) the amount of interest (as reasonably determined by such Lender)
that would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank market. A
certificate as to any amounts payable pursuant to this definition submitted to
the Makers by any Lender shall be conclusive in the absence of manifest error.
"Affiliate" shall mean, as applied to any Person, any other Person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with") as applied to any Person means the power,
directly or indirectly, either to (a) vote 10% or more of the securities having
ordinary voting power for the election of directors (or persons performing
similar functions) of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Aircraft" is defined in Paragraph 1 of the Security Agreement.
"Aircraft Lease" is defined in Paragraph 7(d) of the Security
Agreement.
"Aircraft Trust" is defined in Paragraph 1 of the Security Agreement.
"Airframe" is defined in Paragraph 1 of the Security Agreement.
"Applicable Administrative Charge" shall mean, as of any date of
determination in respect of any event, any Administrative Charge determined to
be due and owing in respect of such event.
"Applicable Lender Margin" shall mean (i) at any time of determination
of the LIBOR Rate, 2.375% per annum, and (ii) at any time of determination of
the Base Rate, 1.25% per annum.
"Approved Lease" means the Aircraft Lease Agreement dated as of May
24, 2005 by and between Owner and World Travel (the "Aircraft Head Lease") or
any other lease or operating agreement between Owner and World Travel, or any
Affiliate of World Travel, substantially in the form of the Aircraft Head
Lease.
"Approved Sublease" means the Aircraft Sublease made and entered into
as of the 24th day of May, 2005 by and between World Travel and Las Vegas Jet,
LLC (the "Aircraft Sublease"), or any other lease between World Travel, or any
Affiliate of World Travel, substantially in the form of the Aircraft Sublease.
"Assignee" is defined in Paragraph 13 of the Security Agreement.
"Base Rate" for any day shall mean a rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1%) equal to the greatest of (a) the Prime
Rate in effect on such day and (b) the Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. Any change in the Base Rate due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate or
the Federal Funds Effective Rate, respectively.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"BofA" shall mean Bank of America, N.A., together with its successors
and assigns.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, a day other than a Saturday, Sunday or other day on which
commercial banks in New York City, New York or Las Vegas, Nevada or Salt Lake
City, Utah are authorized or required by law to close and (ii) with respect to
all notices and determinations in connection with, and payments of principal
and interest on, amounts under this Promissory Note and Agreement bearing
interest at the Adjusted LIBOR Rate, any day which is a Business Day described
in clause (i) above and which is also a day for trading by and between banks in
Dollar deposits in the New York interbank market.
"Casualty" shall mean any of the following events in respect of the
Aircraft or Airframe: (a) the total loss of such Aircraft or Airframe, the
total loss of use thereof due to theft, disappearance, destruction, damage
beyond repair or the rendering of such Aircraft or Airframe permanently unfit
for normal use for any reason whatsoever (other than obsolescence); (b) any
damage to such Aircraft or Airframe which results in an insurance settlement
with respect to such Aircraft or Airframe on the basis of a total loss or a
constructive total loss; (c) the permanent condemnation, confiscation or
seizure of, or the requisition of title to or use of, such Aircraft or
Airframe; or (d) as a result of any Requirement of Law or other action by any
Governmental Agency, the use of such Aircraft or Airframe in the normal course
of the Makers' or any of their affiliate's business shall have been prohibited,
directly or indirectly, for a period equal to the lesser of 180 consecutive
days and the remaining period until the Maturity Date.
"Casualty Amount" is defined in Schedule 3 to the Promissory Notes and
Agreements.
"Casualty Notice" is defined in Schedule 3 to the Promissory Notes and
Agreements.
"Casualty Settlement Date" is defined in Schedule 3 to the Promissory
Notes and Agreements.
"CIT" shall mean The CIT Group/Equipment Financing, Inc., together
with its successors and assigns.
"Collateral" is defined in Paragraph 1 of the Security Agreement.
"Collateral Agent" shall mean Wells Fargo Bank, National Association,
as collateral agent under the Intercreditor Agreement and its successors.
"Debtors" shall mean the Owner and World Travel.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"Engine" is defined in Paragraph 1 of the Security Agreement.
"Event of Default" shall have the meaning set forth in Paragraph 9 of
the Security Agreement.
"FAA" shall mean the Federal Aviation Administration, or any successor
agency thereto.
"Federal Funds Effective Rate" for any day shall mean the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations for the day of such transactions received by the
Collateral Agent from three federal funds brokers of recognized standing
selected by it.
"GAAP" shall mean generally accepted accounting principles in the
United States, from time to time.
"Governmental Agency" or "Governmental Authority" shall mean any
national, state or local government (whether domestic or foreign), any
political subdivision thereof or any other governmental, quasi-governmental,
judicial, public or statutory instrumentality, authority, body, agency, bureau
or entity, (including the Nevada Gaming Authorities, any zoning authority, the
FDIC, the Comptroller of the Currency or the Federal Reserve Board, any central
bank or any comparable authority), and entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government or any arbitrator with authority to bind a party at law.
"Guarantor" shall mean Wynn Las Vegas, LLC, a Nevada limited liability
company.
"Guaranty" shall mean that certain Guaranty dated May 24, 2005 by the
Guarantor in favor of the Lenders and the Collateral Agent.
"Intercreditor Agreement" shall mean that certain Intercreditor and
Collateral Agency Agreement dated May 24, 2005 among the Lenders and the
Collateral Agent.
"Interest Period" shall mean, initially, the period commencing on the
borrowing, with respect to the Promissory Notes and Agreements and ending June
30, 2005, and thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to the Promissory Notes and Agreements and
ending 3 months thereafter; provided that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period that would otherwise extend beyond
the Maturity Date shall end on the Maturity Date, as applicable; and
(iii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month.
"Interest Rate" shall mean, for each day during each Interest Period
with respect thereto, (i) a rate per annum equal to the Adjusted LIBOR Rate or
(ii) if the LIBOR Rate is illegal, unavailable or impracticable, as described
in Schedule 1 to the Promissory Notes and Agreements, the Adjusted Base Rate.
"Lender" shall mean BofA or CIT and "Lenders" shall mean BofA and CIT,
collectively.
"LIBOR Rate" shall mean, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for deposits in U.S. Dollars for a 3 month period which
appears on the Bloomberg Page BBAM published by the British Bankers Association
or any successor page or source thereto, effective as of 11:00 a.m. (London,
England time) two (2) Business Days prior to the beginning of such Interest
Period; provided that the LIBOR Rate for the first Interest Period commencing
on the borrowing shall be a rate per annum for a 30-day period.
"Loans" shall mean the principal amount outstanding on all of the
Promissory Notes and Agreements secured by the Security Agreement.
"Maintenance Program" is defined in Paragraph 6(f) of the Security
Agreement.
"Makers" shall mean the Owner and World Travel.
"Maturity Date" shall mean March 31, 2010, or such earlier date on
which:
(i) the Makers are required to pay the Casualty Amount, or
(ii) the Makers elect to pay the Payoff Amount, or
(iii) the holder of this Negotiable Promissory Note and
Agreement elects to accelerate it note's maturity pursuant to the
provisions hereof.
"Minimum Prepayment Amount" shall mean $10,000,000 of the aggregate
principal amount of the Loans then outstanding.
"Operative Documents" shall mean the Promissory Notes and Agreements,
the Security Agreement, the Guaranty and the Intercreditor Agreement.
"Overdue Rate" shall mean rate per annum which is 2% above the
applicable Interest Rate then in effect.
"Owner" is defined in Paragraph 1 of the Security Agreement.
"Parts" is defined in Paragraph 1 of the Security Agreement.
"Payment Date" shall mean (i) the last day of each Interest Period and
(ii) the Maturity Date.
"Pay Off Amount" is defined in the Prepayment Rider to the Negotiable
Promissory Notes and Agreements.
"Permitted Liens" is defined in Paragraph 2 of the Security Agreement.
"Person" shall mean an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Prime Rate" shall mean the rate which Bank of America, N.A.
announces, from time to time, as its prime lending rate, the Prime Rate to
change when and as such prime lending rate changes. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged by Bank of America, N.A. to any customer of Bank of America,
N.A. The Makers acknowledge that Bank of America, N.A. may, from time to time,
make commercial loans or other loans at rates of interest at, above or below
the Prime Rate.
"Promissory Notes and Agreements" shall mean the Promissory Notes and
Agreements dated May 24, 2005 by the Makers in favor of each of BofA and CIT.
"Property" shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, capital stock.
"Required Lenders" shall mean at anytime, the Lenders holding 76% or
more in principal or face amount of the Promissory Notes and Agreements of the
Debtors then outstanding.
"Requirement of Law" shall mean, as to any Person, the governing
documents of such Person, and any law, treaty, order, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its Property or
to which such Person or any of its Property is subject.
"Security Agreement" shall mean that certain Security Agreement, dated
May 24, 2005 between each of the Debtors and the Collateral Agent.
"Secured Party" shall mean the Collateral Agent.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the State of Nevada.
"World Travel" shall mean World Travel, LLC, a Nevada limited
liability company.
"Wynn Credit Agreement" shall mean the CREDIT AGREEMENT dated as of
December 14, 2004 and entered into among the Guarantor, the several banks and
other financial institutions or entities from time to time party to this
Agreement as lenders, DEUTSCHE BANK SECURITIES INC., as lead arranger and joint
book running manager, DEUTSCHE BANK TRUST COMPANY AMERICAS, as administrative
agent (in such capacity and together with its successors and assigns, the
"Administrative Agent"), issuing lender and swing line lender, BANC OF AMERICA
SECURITIES LLC, as lead arranger and joint book running manager, BANK OF
AMERICA, N.A., as syndication agent, BEAR, STEARNS & CO. INC., as arranger and
joint book running manager, BEAR STEARNS CORPORATE LENDING INC., as joint
documentation agent, J.P. MORGAN SECURITIES INC., as arranger and joint book
running manager, JPMORGAN CHASE BANK, N.A., as joint documentation agent, SG
AMERICAS SECURITIES, LLC, as arranger and joint book running manager, and
SOCIETE GENERALE, as joint documentation agent, as the same may be, in whole or
in part, amended, restated, refinanced, renewed, extended, supplemented or
otherwise modified from time to time; provided that if at any time the Wynn
Credit Agreement is no longer in effect, "Wynn Credit Agreement" shall refer to
the terms, covenants and definitions set forth in the Wynn Credit Agreement as
in effect on the last day such agreement was in effect.
Exhibit 10.2
EXECUTION COPY
[CIT]
PROMISSORY NOTE AND AGREEMENT
$22,375,000.00 May 24, 2005
Total Amount of Note
This Promissory Note and Agreement is made pursuant to that certain
Security Agreement, dated as of May 24, 2005 (the "Security Agreement"),
between each of the undersigned (hereinafter individually referred to as a
"Maker" and collectively as "Makers"), and Wells Fargo Bank, National
Association, not in its individual capacity, but solely as Collateral Agent
(the "Collateral Agent") for the benefit of Bank of America, N.A. ("BofA") and
The CIT Group/Equipment Financing, Inc. ("CIT"; BofA and CIT, together with
their successors and assigns, are each hereinafter individually referred to as
a "Lender" and collectively the "Lenders"). For value received, Makers, jointly
and severally, promise to pay to CIT or its registered assigns, located at 1540
West Fountainhead Pkwy, Tempe, AZ 85282, the principal amount of TWENTY-TWO
MILLION THREE HUNDRED SEVENTY-FIVE THOUSAND DOLLARS, together with interest
thereon at the interest rate per annum equal to the Interest Rate (as defined
in Appendix 1) then in effect, calculated from the date hereof until the
payment in full of such advance in accordance with the provisions of this note.
This note shall mature and be payable in full on the Maturity Date. This note
is subject to prepayment in accordance with "Prepayment Rider" dated the date
hereof and appended hereto. Contemporaneously with entering into this note, the
Makers are entering into a separate note (the "Other Note") identical with this
note with the other Lender. Capitalized terms used herein and not otherwise
defined shall have the meaning set forth in Appendix 1 hereto.
Makers shall make payments of principal and interest toward each
advance, in the principal amount and on the dates indicated on Schedule 3
attached hereto and with interest accrued thereon on each Payment Date;
provided, however, that the final payment hereon shall be in the amount of the
then unpaid balance with accrued interest thereon, and shall include all
amounts owing by Makers to CIT under this note.
Each payment by the Makers on account of principal of and interest on
this note shall be made by the Makers to the Collateral Agent and directed by
the Collateral Agent to CIT. All payments to be made by the Makers hereunder,
whether on account of principal, interest or otherwise, shall be made without
setoff or counterclaim and shall be made by the Makers to the Collateral Agent,
for the benefit of CIT, prior to 1:00 p.m. New York City time, to Collateral
Agent's Payment Office as set forth below its signature hereto (or to such
other office as may be designated by the Collateral Agent from time to time in
a written notice) in funds consisting of lawful currency of the United States
of America which shall be immediately available on the scheduled date when such
payment is due. Payments received after 1:00 p.m., New York City time, on the
date due shall be deemed received on the next succeeding Business Day and shall
be subject to interest at the Overdue Rate.
If an Event of Default has occurred and is continuing, including,
without limitation, any payment not made when due, interest shall accrue on the
outstanding principal amount of this note at the Overdue Rate, but in no event
greater than the highest rate permitted by relevant law. The Makers agree to
pay all reasonable attorneys' fees, incurred by the holder in enforcing its
rights under this note. Except as otherwise specifically provided herein
(including the Prepayment Rider) or by applicable law, the Makers shall have no
right to prepay this note. If any payment of principal is not made when due,
any other payment is not made within five (5) days of the date when due, or if
there is any other Event of Default that has occurred and is continuing, all
remaining payments together with all interest accrued thereon and other amounts
due and owing, including, without limitation, any Applicable Administrative
Charge, shall, at the option of the holder, without notice, become immediately
due and payable ; provided that upon any default described in subparagraph 9(c)
[bankruptcy] of the Security Agreement, all remaining payments of principal
together with all accrued interest thereon and other amounts due and owing,
including, without limitation, any Applicable Administrative Charge, shall,
without notice, become immediately due and payable. In the event any payment of
principal is not made when due, any other payment is not made within five (5)
days of the date when due, or if there is any other Event of Default that has
occurred and is continuing, (i) the Collateral Agent and the Lenders may
exercise any rights under and with respect to any of the Operative Documents,
(ii) any Lender may proceed to protect and enforce the rights of such Lender by
an action at law, suit in equity or other appropriate proceeding, whether for
the specific performance of any agreement contained herein or in any Operative
Document, or for an injunction against a violation of any of the terms hereof
or thereof, or in aid of the exercise of any power granted hereby or thereby or
by law or otherwise, and (iii) the Collateral Agent and any Lender may exercise
any rights or remedies under applicable law. No course of dealing and no delay
on the part of any Lender in exercising any right, power or remedy shall
operate as a waiver thereof or otherwise prejudice such Lender's rights, powers
or remedies. No right, power or remedy conferred by this note any holder
thereof shall be exclusive of any other right, power or remedy referred to
herein or therein or now or hereafter available at law, in equity, by statute
or otherwise. In no event shall the Makers of this note, upon demand by the
holder hereof for payment of the indebtedness evidenced hereby, upon
acceleration of the maturity thereof or otherwise, be obligated to pay any
interest in excess of the amount permitted by law. Any acceleration of
indebtedness, if elected by holder, shall be subject to all applicable laws,
including laws relating to rebates and refunds of unearned charges. The Makers,
any endorsers, guarantors and any other persons obligated hereon:
(a) agree that the holder may grant to any one or more of
them extensions of the time for payment of this note and/or the
maturity of any payment or payments, in whole or in part, without
limit as to the number of such extensions, or the period or periods
thereof;
(b) waive presentation for payment, demand for payment,
notice of non-payment or dishonor, protest and notice of protest, and
notice of the holder's election to accelerate the unpaid balance of
all remaining payments; and
(c) agree that the failure or delay to perfect or continue
the perfection of any security interest in any property which secures
the obligations of the Makers or any endorser, guarantor or other
person obligated hereon, or to protect the property covered by such
security interest, shall not release or discharge them or any of them.
If at any time this transaction would be usurious under applicable
law, then, regardless of any provision of this note or any agreement between
the holder and the Makers made in connection with, or as security for, the
payment hereof, it is agreed that:
(a) the total of all consideration which constitutes
interest under applicable law that is contracted for, charged or
received upon this note or any such other agreements shall under no
circumstances exceed the maximum rate of interest authorized by
applicable law and any excess shall be credited on the note by the
holder hereof or credited to the Makers; and
(b) if the holder of this note elects to accelerate its
maturity or, if permitted herein, the Makers prepay this note, any
amounts which because of such action would constitute interest may
never include more than the maximum rate of interest authorized by
applicable law and any excess interest, if any, provided for in this
note or otherwise, shall be credited to Makers automatically as of the
date of acceleration or prepayment.
MAKERS WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS NOTE. The
undersigned shall be jointly and severally liable hereunder and all provisions
hereof shall apply to each of them.
This note is a registered instrument. A manually signed copy of this
note shall be evidence of the Lender's rights and is not a bearer instrument.
The Makers shall maintain a register to record and register the ownership of
this note by each Lender and any transfer thereof. No transfer by any Lender
(whether or not with the Makers' consent) of any interest of such Lender in
this note or in the rights to receive any payments hereunder shall be effective
unless and until a book entry of such transfer is made upon the register
maintained by the Makers. Prior to the entry into such register of any transfer
as provided in the immediately preceding sentences, the Makers and any
guarantor shall deem and treat each owner of this note reflected in the Makers'
register as owner of this note or the rights to receive any payments hereunder
as the owner thereof for all purposes.
This note may only be amended, and the observance of any term hereof
may be waived (either retroactively or prospectively), with (and only with) the
written consent of the Makers and the Required Lenders; provided that any
amendment or waiver which would amend, modify, waive or supplement any of the
provisions of the Schedules attached to this Note or modify, postpone, reduce
or forgive, in whole or in part, any payment of principal or interest hereunder
with respect to any Lender shall require the consent of such Lender.
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
(EXCEPT TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
Any suit by Collateral Agent or any Lender to enforce any claim
arising out of this note or any other Operative Document may be brought in any
state or Federal court located in New York having subject matter jurisdiction,
and with respect to any such claim, each party to the Operative Documents
hereby irrevocably: (a) submits to the non-exclusive jurisdiction of such
courts; and (b) consents to the service of process out of said courts in the
manner provided for notices set forth below. The Makers irrevocably waive, to
the fullest extent permitted by law: (A) any claim, or any objection, that it
now or hereafter may have, that venue is not proper with respect to any such
suit, action or proceeding brought in such a court located in New York
including, without limitation, any claim that any such suit, action or
proceeding brought in such court has been brought in an inconvenient forum; and
(B) any claim that the Makers is not subject to personal jurisdiction or
service of process in such forum. The Makers agree that any suit to enforce any
claim arising out of the Operative Documents or any course of conduct or
dealing of Collateral Agent or any Lender shall be brought and maintained
exclusively in any state or Federal court located in New York. Nothing in this
paragraph shall affect the right of Collateral Agent or any Lender to bring any
action or proceeding against Makers or the Collateral in the courts of any
other jurisdiction. The Makers agree that a final judgment in any action or
proceeding in a state or Federal court within the United States may be enforced
in any other jurisdiction by suit on the judgment or in any other manner
provided by law.
All demands, notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when personally delivered
or one Business Day after being sent by overnight delivery service or three
days after being deposited in the mail, certified mail postage prepaid, or when
sent by facsimile transmission, if confirmed by mechanical confirmation and if
a copy thereof is promptly thereafter personally delivered, sent by overnight
delivery service or so deposited in the mail, addressed to: (A) the Makers or
Collateral Agent at the address set forth below, or at such other address as
may hereafter be furnished by either party to the other and (B) each Lender at
its address set forth below its signature to its Note:
(i) if to the Makers:
WELLS FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner Trustee under
the Trust Agreement dated as of May 10,
2002 with World Travel, LLC as
Trustor
299 South Main Street, 12th Floor
MAC U1228-120
Salt Lake City, Utah 84111
Attention: Corporate Trust Services
Telecopy: 801-246-5053
Telephone: 801-246-5630
WORLD TRAVEL, LLC
3131 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: Ron Kramer
Facsimile: (702) 770-1100
Telephone: (702) 770-7700
With a copy to:
World Travel, LLC
3131 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: General Counsel
Facsimile: (702) 770-1520
Telephone: (702) 770-2111
(ii) if to the Collateral Agent:
Wells Fargo Bank,
National Association
299 South Main Street, 12th Floor
MAC U1228-120
Salt Lake City, Utah 84111
Attn: Corporate Trust Services
[remainder of page intentionally left blank; signature page follows]
MAKERS:
WELLS FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION, not in its
individual capacity, but solely as
Owner Trustee under the Trust Agreement
dated as of May 10, 2002 with World
Travel, LLC as Trustor
By: /s/ Val Orton
----------------------------------------
Title: Vice President
WORLD TRAVEL, LLC
By: WYNN LAS VEGAS, LLC,
a Nevada limited liability company,
its sole member
By: WYNN RESORTS HOLDINGS, LLC,
a Nevada limited liability company,
its sole member
By: WYNN RESORTS, LIMITED,
a Nevada corporation,
its sole member
By: /s/ Marc H. Rubinstein
-----------------------------------
Name: Marc H. Rubinstein
Title: Sr. VP & Secretary
ACCEPTED AND AGREED TO:
LENDER:
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By /s/ R.H. Crofton
------------------------------------
Title Senior Vice President
COLLATERAL AGENT:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity,
but solely as Collateral Agent
By /s/ Val Orton
-----------------------------------
Title Vice President
Lender Payment Office:
THE CIT GROUP/EQUIPMENT FINANCING, INC.
Address:
1540 W. Fountainhead Pkwy
Tempe, Arizona 85282
Credit contact:
Bill Stoddard
Phone: 800-553-8778 ext. 2320
Fax: 480-858-1488
Email: bill.stoddard@cit.com
Post Funding Operations contact:
Lee McDermid
Phone: 800-553-8778 ext. 1411
Fax: 480-858-1459
Email: lee.mcdermid@cit.com
Legal Counsel:
James Kane
Phone: 800-553-8778 ext. 2375
Fax: 480-858-1460
Email: jim.kane@cit.com
Draft Documentation contact:
Jamie Anderson
Phone: 800-553-8778 ext. 9697
Fax: 800-234-8122
Email: jamie.anderson@cit.com
Address for wire transfers:
Bank of America
Los Angeles, California
ABA #121-000-358
Account Number: 1233-5-18855
Account Name: The CIT Group/Aircraft Finance
Reference 1: World Travel, LLC
Reference 2: Identify the purpose of wire
COLLATERAL AGENT PAYMENT OFFICE:
WELLS FARGO BANK, NATIONAL ASSOCIATION
299 South Main Street, 12th Floor
MAC U1228-120
Salt Lake City, Utah 84111
Address of wire transfers:
Wells Fargo Bank, N.A.
ABA: 121000248
Corporate Trust Services
Account No. 051-09221-15
Re: Wynn MSN 29441 Acct. No. 40966
World Travel, LLC Definitions
APPENDIX 1
TO
OPERATIVE DOCUMENTS
In the Operative Documents, unless the context otherwise requires:
(a) any term defined below by reference to another
instrument or document shall continue to have the meaning ascribed
thereto whether or not such other instrument or document remains in
effect;
(b) words importing the singular include the plural and vice
versa;
(c) a reference to a part, clause, section, article, exhibit
or schedule is a reference to a part, clause, section and article of,
and exhibit and schedule to, such Operative Document;
(d) a reference to any statute, regulation, proclamation,
ordinance or law includes all statutes, regulations, proclamations,
ordinances or laws amending, supplementing, supplanting, varying,
consolidating or replacing them, and a reference to a statute includes
all regulations, proclamations and ordinances issued or otherwise
applicable under that statute;
(e) a reference to a document includes any amendment or
supplement to, or replacement or novation of, that document;
(f) a reference to a party to a document includes that
party's successors and permitted assigns; and
(g) references to "including" means including without
limiting the generality of any description preceding such term and for
purposes hereof the rule of ejusdem generis shall not be applicable to
limit a general statement followed by or referable to an enumeration
of specific matters to matters similar to those specifically
mentioned.
Further, each of the parties to the Operative Documents and their
counsel have reviewed and revised the Operative Documents, or requested
revisions thereto, and the usual rule of construction that any ambiguities are
to be resolved against the drafting party shall be inapplicable in construing
and interpreting the Operative Documents.
"Act" is defined in Paragraph 6(f) of the Security Agreement.
"Adjusted Base Rate" shall mean the Base Rate plus the Applicable
Lender Margin.
"Adjusted LIBOR Rate" shall mean the LIBOR Rate plus the Applicable
Lender Margin.
"Administrative Charge" shall mean an amount equal to the amount, if
any, required to compensate each Lender for any loss (other than loss of
anticipated profits) or expense that such Lender may incur as a result of the
Makers' payment of principal on a Promissory Note and Agreement on any date
other than on a Payment Date. Such indemnification may include an amount equal
to the excess, if any, of (i) the amount of interest that would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment to the last day of such Interest period
in each case at the applicable rate of interest for such Loans provided for
herein (excluding, however, the Applicable Lender Margin included therein, if
any) over (ii) the amount of interest (as reasonably determined by such Lender)
that would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank market. A
certificate as to any amounts payable pursuant to this definition submitted to
the Makers by any Lender shall be conclusive in the absence of manifest error.
"Affiliate" shall mean, as applied to any Person, any other Person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with") as applied to any Person means the power,
directly or indirectly, either to (a) vote 10% or more of the securities having
ordinary voting power for the election of directors (or persons performing
similar functions) of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Aircraft" is defined in Paragraph 1 of the Security Agreement.
"Aircraft Lease" is defined in Paragraph 7(d) of the Security
Agreement.
"Aircraft Trust" is defined in Paragraph 1 of the Security Agreement.
"Airframe" is defined in Paragraph 1 of the Security Agreement.
"Applicable Administrative Charge" shall mean, as of any date of
determination in respect of any event, any Administrative Charge determined to
be due and owing in respect of such event.
"Applicable Lender Margin" shall mean (i) at any time of determination
of the LIBOR Rate, 2.375% per annum, and (ii) at any time of determination of
the Base Rate, 1.25% per annum.
"Approved Lease" means the Aircraft Lease Agreement dated as of May
24, 2005 by and between Owner and World Travel (the "Aircraft Head Lease") or
any other lease or operating agreement between Owner and World Travel, or any
Affiliate of World Travel, substantially in the form of the Aircraft Head
Lease.
"Approved Sublease" means the Aircraft Sublease made and entered into
as of the 24th day of May, 2005 by and between World Travel and Las Vegas Jet,
LLC (the "Aircraft Sublease"), or any other lease between World Travel, or any
Affiliate of World Travel, substantially in the form of the Aircraft Sublease.
"Assignee" is defined in Paragraph 13 of the Security Agreement.
"Base Rate" for any day shall mean a rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1%) equal to the greatest of (a) the Prime
Rate in effect on such day and (b) the Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. Any change in the Base Rate due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate or
the Federal Funds Effective Rate, respectively.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"BofA" shall mean Bank of America, N.A., together with its successors
and assigns.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, a day other than a Saturday, Sunday or other day on which
commercial banks in New York City, New York or Las Vegas, Nevada or Salt Lake
City, Utah are authorized or required by law to close and (ii) with respect to
all notices and determinations in connection with, and payments of principal
and interest on, amounts under this Promissory Note and Agreement bearing
interest at the Adjusted LIBOR Rate, any day which is a Business Day described
in clause (i) above and which is also a day for trading by and between banks in
Dollar deposits in the New York interbank market.
"Casualty" shall mean any of the following events in respect of the
Aircraft or Airframe: (a) the total loss of such Aircraft or Airframe, the
total loss of use thereof due to theft, disappearance, destruction, damage
beyond repair or the rendering of such Aircraft or Airframe permanently unfit
for normal use for any reason whatsoever (other than obsolescence); (b) any
damage to such Aircraft or Airframe which results in an insurance settlement
with respect to such Aircraft or Airframe on the basis of a total loss or a
constructive total loss; (c) the permanent condemnation, confiscation or
seizure of, or the requisition of title to or use of, such Aircraft or
Airframe; or (d) as a result of any Requirement of Law or other action by any
Governmental Agency, the use of such Aircraft or Airframe in the normal course
of the Makers' or any of their affiliate's business shall have been prohibited,
directly or indirectly, for a period equal to the lesser of 180 consecutive
days and the remaining period until the Maturity Date.
"Casualty Amount" is defined in Schedule 3 to the Promissory Notes and
Agreements.
"Casualty Notice" is defined in Schedule 3 to the Promissory Notes and
Agreements.
"Casualty Settlement Date" is defined in Schedule 3 to the Promissory
Notes and Agreements.
"CIT" shall mean The CIT Group/Equipment Financing, Inc., together
with its successors and assigns.
"Collateral" is defined in Paragraph 1 of the Security Agreement.
"Collateral Agent" shall mean Wells Fargo Bank, National Association,
as collateral agent under the Intercreditor Agreement and its successors.
"Debtors" shall mean the Owner and World Travel.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"Engine" is defined in Paragraph 1 of the Security Agreement.
"Event of Default" shall have the meaning set forth in Paragraph 9 of
the Security Agreement.
"FAA" shall mean the Federal Aviation Administration, or any successor
agency thereto.
"Federal Funds Effective Rate" for any day shall mean the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations for the day of such transactions received by the
Collateral Agent from three federal funds brokers of recognized standing
selected by it.
"GAAP" shall mean generally accepted accounting principles in the
United States, from time to time.
"Governmental Agency" or "Governmental Authority" shall mean any
national, state or local government (whether domestic or foreign), any
political subdivision thereof or any other governmental, quasi-governmental,
judicial, public or statutory instrumentality, authority, body, agency, bureau
or entity, (including the Nevada Gaming Authorities, any zoning authority, the
FDIC, the Comptroller of the Currency or the Federal Reserve Board, any central
bank or any comparable authority), and entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government or any arbitrator with authority to bind a party at law.
"Guarantor" shall mean Wynn Las Vegas, LLC, a Nevada limited liability
company.
"Guaranty" shall mean that certain Guaranty dated May 24, 2005 by the
Guarantor in favor of the Lenders and the Collateral Agent.
"Intercreditor Agreement" shall mean that certain Intercreditor and
Collateral Agency Agreement dated May 24, 2005 among the Lenders and the
Collateral Agent.
"Interest Period" shall mean, initially, the period commencing on the
borrowing, with respect to the Promissory Notes and Agreements and ending June
30, 2005, and thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to the Promissory Notes and Agreements and
ending 3 months thereafter; provided that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period that would otherwise extend beyond
the Maturity Date shall end on the Maturity Date, as applicable; and
(iii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month.
"Interest Rate" shall mean, for each day during each Interest Period
with respect thereto, (i) a rate per annum equal to the Adjusted LIBOR Rate or
(ii) if the LIBOR Rate is illegal, unavailable or impracticable, as described
in Schedule 1 to the Promissory Notes and Agreements, the Adjusted Base Rate.
"Lender" shall mean BofA or CIT and "Lenders" shall mean BofA and CIT,
collectively.
"LIBOR Rate" shall mean, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for deposits in U.S. Dollars for a 3 month period which
appears on the Bloomberg Page BBAM published by the British Bankers Association
or any successor page or source thereto, effective as of 11:00 a.m. (London,
England time) two (2) Business Days prior to the beginning of such Interest
Period; provided that the LIBOR Rate for the first Interest Period commencing
on the borrowing shall be a rate per annum for a 30-day period.
"Loans" shall mean the principal amount outstanding on all of the
Promissory Notes and Agreements secured by the Security Agreement.
"Maintenance Program" is defined in Paragraph 6(f) of the Security
Agreement.
"Makers" shall mean the Owner and World Travel.
"Maturity Date" shall mean March 31, 2010, or such earlier date on
which:
(i) the Makers are required to pay the Casualty Amount, or
(ii) the Makers elect to pay the Payoff Amount, or
(iii) the holder of this Negotiable Promissory Note and
Agreement elects to accelerate it note's maturity pursuant to the
provisions hereof.
"Minimum Prepayment Amount" shall mean $10,000,000 of the aggregate
principal amount of the Loans then outstanding.
"Operative Documents" shall mean the Promissory Notes and Agreements,
the Security Agreement, the Guaranty and the Intercreditor Agreement.
"Overdue Rate" shall mean rate per annum which is 2% above the
applicable Interest Rate then in effect.
"Owner" is defined in Paragraph 1 of the Security Agreement.
"Parts" is defined in Paragraph 1 of the Security Agreement.
"Payment Date" shall mean (i) the last day of each Interest Period and
(ii) the Maturity Date.
"Pay Off Amount" is defined in the Prepayment Rider to the Negotiable
Promissory Notes and Agreements.
"Permitted Liens" is defined in Paragraph 2 of the Security Agreement.
"Person" shall mean an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Prime Rate" shall mean the rate which Bank of America, N.A.
announces, from time to time, as its prime lending rate, the Prime Rate to
change when and as such prime lending rate changes. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged by Bank of America, N.A. to any customer of Bank of America,
N.A. The Makers acknowledge that Bank of America, N.A. may, from time to time,
make commercial loans or other loans at rates of interest at, above or below
the Prime Rate.
"Promissory Notes and Agreements" shall mean the Promissory Notes and
Agreements dated May 24, 2005 by the Makers in favor of each of BofA and CIT.
"Property" shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, capital stock.
"Required Lenders" shall mean at anytime, the Lenders holding 76% or
more in principal or face amount of the Promissory Notes and Agreements of the
Debtors then outstanding.
"Requirement of Law" shall mean, as to any Person, the governing
documents of such Person, and any law, treaty, order, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its Property or
to which such Person or any of its Property is subject.
"Security Agreement" shall mean that certain Security Agreement, dated
May 24, 2005 between each of the Debtors and the Collateral Agent.
"Secured Party" shall mean the Collateral Agent.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the State of Nevada.
"World Travel" shall mean World Travel, LLC, a Nevada limited
liability company.
"Wynn Credit Agreement" shall mean the CREDIT AGREEMENT dated as of
December 14, 2004 and entered into among the Guarantor, the several banks and
other financial institutions or entities from time to time party to this
Agreement as lenders, DEUTSCHE BANK SECURITIES INC., as lead arranger and joint
book running manager, DEUTSCHE BANK TRUST COMPANY AMERICAS, as administrative
agent (in such capacity and together with its successors and assigns, the
"Administrative Agent"), issuing lender and swing line lender, BANC OF AMERICA
SECURITIES LLC, as lead arranger and joint book running manager, BANK OF
AMERICA, N.A., as syndication agent, BEAR, STEARNS & CO. INC., as arranger and
joint book running manager, BEAR STEARNS CORPORATE LENDING INC., as joint
documentation agent, J.P. MORGAN SECURITIES INC., as arranger and joint book
running manager, JPMORGAN CHASE BANK, N.A., as joint documentation agent, SG
AMERICAS SECURITIES, LLC, as arranger and joint book running manager, and
SOCIETE GENERALE, as joint documentation agent, as the same may be, in whole or
in part, amended, restated, refinanced, renewed, extended, supplemented or
otherwise modified from time to time; provided that if at any time the Wynn
Credit Agreement is no longer in effect, "Wynn Credit Agreement" shall refer to
the terms, covenants and definitions set forth in the Wynn Credit Agreement as
in effect on the last day such agreement was in effect.
Exhibit 10.3
EXECUTION COPY
AIRCRAFT SECURITY AGREEMENT
This form is subject to State legal requirements.
1. GRANT OF SECURITY INTEREST; DESCRIPTION OF COLLATERAL.
The undersigned, Wells Fargo Bank Northwest, National Association, not
in its individual capacity, but solely as Owner Trustee (in such capacity, the
"Owner") of that certain Trust created under the Trust Agreement (as amended,
the "Aircraft Trust") dated as of May 10, 2002 with World Travel, LLC, a Nevada
limited liability company ("World Travel"), as Trustor and World Travel,
jointly and severally, (the Owner and World Travel are hereinafter,
collectively, the "Debtors"), to secure payment of the indebtedness evidenced
hereby and all other indebtedness now or hereafter owing by Debtors to WELLS
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, not in its
individual capacity (except as specifically set forth herein), but solely as
collateral agent, its successors and assigns ("Secured Party"), Bank of
America, N.A. ("BofA") and/or The CIT Group/Equipment Financing, Inc. ("CIT";
BofA and CIT are each hereinafter individually referred to as a "Lender" and,
collectively, as the "Lenders") hereunder and under the other Operative
Documents (as hereinafter defined) hereby grant to Secured Party for the
benefit of the Lenders a security interest as follows:
(a) Owner hereby grants to Secured Party for the benefit of the
Lenders a security interest in all of Owner's right, title and interest in and
to the following-described aircraft, engine(s), and equipment, together with
all appliances, parts, instruments, appurtenances, accessories, furnishings and
other equipment of whatever nature (other than the Engines), that may from time
to time be incorporated or installed in or attached to the Airframe or any
Engine (collectively referred to herein as "Parts"), and the property described
on Schedule A attached hereto, all of which is hereinafter referred to as
"Collateral":
Airframe:
REGISTRATION
NEW/USED YEAR MANUFACTURER MODEL SERIAL NUMBER NUMBER
Used 1999 Boeing 737-79U Business Jet 29441 N88WR
together with any and all Parts incorporated or installed or attached to such
aircraft and all Parts removed from such aircraft until such Parts are replaced
(such airframe, together with any replacement or substitute airframe and all
such Parts, the "Airframe"):
Engine(s): Rated over 750 horsepower.
CFM International, Inc. model CFM 56-7B, S/N: 874-373
CFM International, Inc. model CFM 56-7B, S/N: 874-366
regardless of whether, from time to time thereafter, either such engine is
installed on the aircraft described above or installed on any other airframe or
any other aircraft, and each of the engines installed on the Aircraft and any
replacement engine that may be substituted for such engine, together, in each
case, with any and all Parts incorporated or installed or attached thereto and
any and all Parts removed therefrom, until such Parts are replaced (each such
engine, and replacement or substitute engine, together with any and all such
Parts, the "Engine" and collectively the "Engines"; the Airframe, Engines and
the Parts are collectively referred to as the "Aircraft"; and any and all
proceeds of any of the above.
(b) World Travel hereby grants to Secured Party for the benefit of the
Lenders a security interest in all of World Travel's right, title and interest
in and to the Collateral. World Travel confirms that its interest in the
Aircraft is as beneficial owner only pursuant to the terms of the Aircraft
Trust, and World Travel claims no right, title or interest as holder of legal
title to the Aircraft.
Capitalized terms used herein and not otherwise defined shall have the
meaning set forth in Appendix 1 hereto.
2. WARRANTIES.
Debtors warrant that the Collateral is not and will not be registered
under the laws of any foreign country, that the Owner has good legal and
beneficial title to the Collateral (except for beneficial title to the Aircraft
which is held by World Travel) and is in lawful possession thereof, and the
same is and will be kept free and clear of all liens, adverse claims and
encumbrances except for (i) the rights of Debtors as herein provided, the lien
hereof and any other rights existing pursuant to the Operative Documents, (ii)
the rights of lessees and other persons under leases and other agreements and
arrangements in each case to the extent permitted by the Operative Documents,
(iii) liens for taxes imposed against Debtors either not yet due or being
contested on a timely basis in good faith by appropriate proceedings, (iv)
mechanics', material suppliers', workers', repairers', employees' or other like
liens arising in the ordinary course of Debtors' business for amounts that are
not overdue or are being contested on a timely basis and in good faith by
appropriate proceedings, (v) liens arising out of any judgment or award against
Debtors with respect to which an appeal or proceeding for review is being
prosecuted on a timely basis and in good faith and in respect of which a stay
of execution pending such appeal or proceeding for review shall have been
secured, (vi) salvage or similar rights of insurers under policies required to
be maintained by Debtors under Section 8 hereof and (vii) any other lien with
respect to which Debtors shall have provided a bond or other security in an
amount and under terms reasonably satisfactory to Secured Party (collectively,
the "Permitted Liens").
The Owner warrants that it is a "citizen of the United States" as
defined in Section 40102(a)(15) of Title 49, United States Code; each Debtor
warrants that the Aircraft will not be registered under the laws of any foreign
country, and that the Aircraft will not be used in violation of any law,
regulation, ordinance or policy of insurance affecting the maintenance, use or
flight of Aircraft in any material respect. These warranties are conditions of
the Debtors' right of possession and use, and delivery is made in reliance
thereon.
3. USE AND LOCATION OF COLLATERAL.
Said Aircraft shall be regularly hangared at:
McCarran Las Vegas Clark Nevada 89119
- -------------------------------------------------------------------------------
Name of airport or street address City County State Zip Code
Debtors may not otherwise change the Aircraft's regular hangar as indicated
above without prior notice to the Secured Party.
Debtors warrant and agree that the Collateral is to be used primarily for
business or commercial purposes (other than agricultural).
4. PROMISE TO PAY; TERMS AND PLACE OF PAYMENT.
Debtors promise, jointly and severally, to pay the Lenders all amounts
shown on the promissory notes attached hereto as Exhibits A and B, and made a
part hereof, according to the terms described therein (provided that any
failure to pay an amount other than principal shall not constitute an Event of
Default until such payment is at least five (5) days overdue). Payments shall
be made as designated therein or such other place as the Lenders may designate
from time to time. This Security Agreement shall continue effective
irrespective of any retaking and redelivery of Collateral to Debtors until all
amounts secured hereby are fully paid. Any note taken herewith shall evidence
indebtedness and not payment.
5. LATE CHARGES AND OTHER FEES.
Any payment not made when due shall, at the option of the Lenders,
bear late charges thereon calculated at the Overdue Rate, but in no event
greater than the highest rate permitted by relevant law.
6. DEBTORS' WARRANTIES, REPRESENTATIONS AND COVENANTS.
Debtors jointly and severally warrant, represent and covenant:
(a) that Debtors are justly indebted to the Lenders for the
full amount of the foregoing indebtedness;
(b) that this Security Agreement creates a valid first
priority security interest in the Collateral and that all filings and
other action necessary to perfect such security interest have been
taken, and further that, except for the security interest granted
hereby, the Collateral is free from and will be kept free from all
liens, claims, security interests and encumbrances in each case other
than Permitted Liens;
(c) that no financing statement or mortgage covering the
Collateral, or the proceeds thereof, is on file except as contemplated
hereunder;
(d) Debtors have full authority to enter into, and have duly
authorized executed and delivered this Security Agreement and the
Promissory Notes and Agreements and in so doing are not violating
their charter or by-laws, any law or regulation or agreement with
third parties; Debtors have taken all such action as may be necessary
or appropriate to make this Security Agreement binding upon them, and
this Security Agreement and the Promissory Notes and Agreements are
the legal, valid and binding obligations of the Debtors and are
enforceable against Debtors in accordance with their respective terms
except as such enforceability may be limited by (a) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and (b)
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(e) each Debtor (a) is the type of organization, (b) is
organized under the laws of the jurisdiction, (c) has its chief
executive office, and (d) if it is a "registered organization" as
defined in Article 9 of the Uniform Commercial Code (i.e., organized
solely under the laws of a single state and as to which the state must
maintain a public record showing the organization to have been
organized), has the organizational identification number (or, if none,
has been assigned no such number by the state of organization), all as
set forth under Debtor's name (which is its exact and complete legal
name) at the signature line of this Security Agreement. Debtors agree
to notify Secured Party in writing promptly, and in any event, within
ten Business Days, in the event of a change in any of the foregoing
facts and information;
(f) that Debtors shall maintain, service, repair, overhaul
and test or caused to be maintained, serviced, repaired, overhauled
and tested the Aircraft so as to keep such Aircraft in as good
operating condition as when delivered to Debtors, ordinary wear and
tear excepted, and in such condition as may be necessary to enable the
Airworthiness Certificate (as defined in the Transportation Code. 49
U.S.C. section 44101 et seq. and related regulations (the "Act")) of
such Aircraft to be maintained in good standing at all times under the
Act and to maintain such Aircraft under Debtors' FAA-approved
maintenance program as in effect from time to time for the Aircraft,
which shall include scheduled maintenance, conditioned monitored
maintenance, on-condition maintenance or other hourly cost maintenance
programs with respect to the Aircraft its engines, power components
and other parts, including, to the extent required to maintain
airworthiness, Alert Customer Bulletins, Customer Bulletins and
Aircraft Service Changes or other requirements of the manufacturer in
effect from time to time, all at Debtors' sole expense, "Maintenance
Program");
(g) that Debtors shall accrue to the extent required by GAAP
on their books and records an amount of funds sufficient to cover all
expenses incurred as a result of scheduled aircraft or engine
maintenance as required by the Maintenance Program; and
(h) that Debtors shall promptly furnish to Secured Party
such information as may be required to enable Secured Party to file
any reports required to be filed by Secured Party with any
governmental authority because of the Owner's ownership of such
Aircraft.
7. DEBTORS' OTHER AGREEMENTS.
Debtors jointly and severally agree:
(a) to defend at Debtors' own cost any action, proceeding,
or claim adversely affecting the Collateral;
(b) to pay the fees of, and any reasonable attorneys' fees
and other reasonable expenses incurred by, Secured Party or the
Lenders in connection with the preparation, execution and delivery of
the Operative Documents (whether or not such transactions are
consummated) or in enforcing their rights hereunder and under the
other Operative Documents after Debtors default or in connection with
any amendment or waiver thereto requested by Debtors;
(c) to reimburse Secured Party for all reasonable expenses
incurred by Secured Party in connection with the recordation of this
Security Agreement, filing financing statements, the registration of
the Collateral and search of any appropriate records including the FAA
records;
(d) that Debtors will not, without Secured Party's prior
written consent, sell, rent, lend, lease, encumber, transfer or
otherwise dispose of the Collateral; provided that, one or both
Debtors may, so long as no Event of Default exists and subject to
clauses (i), (ii) and (iii) below, lease all or any portion of the
Collateral to one or more of World Travel's Affiliates (each such
lease shall be referred to as an "Aircraft Lease"); provided further
that, so long as no Event of Default exists and subject to clause (i)
below, the Debtors may permit the Aircraft to be used to provide
transportation to any person for a period no longer than 30 days (per
provision of transportation) as contemplated by Section 9 of the
Approved Sublease without regard to the requirements of clause (ii) or
(iii) below; provided further that, neither Debtor shall lease, or
permit the use of, any portion of the Collateral to or by any Person
who shall then be engaged in any proceedings for relief under any
bankruptcy or insolvency law or laws relating to the relief of
debtors;
(i) Debtors agree that no Aircraft Lease hereunder
will discharge or diminish either of the Debtor's obligations
to the Secured Party hereunder or either of the Debtor's
obligations to any other Person under any other Operative
Document, and the Debtors shall remain directly and primarily
liable under this Security Agreement and any other Operative
Document to which it is a party with respect to all of the
Collateral;
(ii) Debtors agree that each Aircraft Lease
permitted hereby shall be in writing and shall expressly
provide that: (A) the Aircraft Lease and the lessee's rights
thereunder are subject and subordinate to this Security
Agreement and the rights of the Secured Party hereunder,
including, without limitation, the right of the Secured Party
to inspect and take possession of the Aircraft from time to
time, (B) the lessee agrees to surrender its possession (if
any) of the Aircraft at the election of the Secured Party
after an Event of Default; (C) the lessee will use the
Aircraft in full compliance with all of the terms and
conditions contained in this Security Agreement, (D) the
lessee waives any right that it might have to any notice of
the Secured Party's intention to inspect, take possession of,
or exercise any other right or remedy in respect of the
Aircraft under this Security Agreement, (E) the lessee
waives, as against the Secured Party, all rights to any
set-off, defense, counterclaim, or cross-claim that it may
hold against the Debtors, and (F) the lessee acknowledges
that, upon an Event of Default it shall have no further
rights in and to the Aircraft. Any Aircraft Lease that does
not contain the foregoing language shall not be permitted by
this Paragraph 7(d), except that any agreement for the
provision of transportation contemplated by Section 9 of the
Approved Sublease shall not be required to include clause (C)
above;
(iii) Debtors agree that World Travel shall give the
Secured Party prompt, and in any event within 5 Business Days
thereof, written notice of any Aircraft Lease permitted under
this Paragraph 7(d), and shall promptly provide the Secured
Party with a fully executed copy of each document evidencing
such Aircraft Lease, together with a certificate of a
responsible officer of the Owner that such Aircraft Lease
complies with Paragraph 7(d)(ii);
provided, however, the Secured Party (A) waives the notice and
certificate requirements with respect to the Approved Lease and the
Approved Sublease and (B) acknowledges that the Approved Lease and the
Approved Sublease comply with Paragraph 7(d)(ii);
(e) to pay promptly all taxes, assessments, license fees and
other public or private charges when levied or assessed against the
Collateral or this Security Agreement or any Promissory Note and
Agreement;
(f) that Collateral will be used, operated and maintained in
all material respects at all times in accordance with the laws, rules,
regulations and ordinances of the United States, the several states
and municipalities thereof, and any other sovereign jurisdictions in
which Collateral may be used;
(g) that said Aircraft will have a permanent hangar in the
United States, and Debtors will neither permit the Aircraft to be
operated outside the continental United States (except as provided in
clause (ii) below) or change its principal hangar from that specified
herein without the prior written consent of Secured Party, which
consent shall not be unreasonably withheld;
(i) Debtors further agree not to operate the
Aircraft in any area excluded from coverage by any insurance
required by the terms of Paragraph 8 hereof (or not
specifically and fully covered by such insurance);
(ii) Notwithstanding anything to the contrary
contained in this sub-paragraph 7(g), Debtors may permit the
Aircraft to be operated outside the continental United
States, provided that, under no circumstances will Debtors
permit the Aircraft to be operated in (A) any area excluded
from coverage by any insurance required by the terms of
Paragraph 8 of the Security Agreement (or not specifically
and fully covered by such insurance), (B) any recognized or
threatened area of hostilities unless fully covered to
Secured Party's satisfaction by hull, political,
expropriation, hijacking and war risk insurance, or (C) any
jurisdiction as to which a travel prohibition, embargo or
other equivalent restriction issued by the U.S. government or
any agency or authority thereof, including but not limited
to, the Bureau of Consular Affairs, the Department of
Homeland Security, the Transportation Security
Administration, the United States Department of State, is in
effect;
(h) that Collateral will be operated at all times by a
currently certified pilot having the minimum total pilot hours
required by the insurance covering such Collateral;
(i) that Collateral will be maintained at all times in an
airworthy condition necessary for Aircraft licenses under the laws,
ordinances, rules and regulations of the United States, the several
states and municipalities and any other jurisdictions in which the
Collateral shall be at any time operated;
(j) that Debtors will not use or permit Collateral to be
used contrary to any laws relating to intoxicating liquors, narcotics,
or similar products, and shall conform with all laws governing
Aircraft;
(k) that all equipment, engines, radios, accessories,
instruments and parts now or hereafter incorporated or installed in or
attached to the Airframe or any Engine shall become part of the
Collateral by accession;
(l) to satisfy all liens other than Permitted Liens against
the Collateral and to insure that this Security Agreement creates a
valid and perfected first priority lien and security interest in the
Collateral subject to Permitted Liens;
(m) that Secured Party and the Lenders shall not be liable
to Debtors for, and Debtors shall indemnify and save Secured Party and
the Lenders harmless from and against any and all liability, loss,
damage, expense, causes of action, suits, claims or judgments
(collectively, "Claims") arising from or caused directly or indirectly
by (i) Debtors' failure to promptly perform any of its obligations
under the provisions of this Security Agreement or any other related
document, (ii) injury to person or property resulting from or based
upon the actual or alleged use, operation, delivery or transportation
of the Collateral or its location or condition, (iii) inadequacy of
the Collateral for any purpose or any deficiency or defect therein or
the use or maintenance thereof or any repairs, servicing or
adjustments thereto or any delay in providing or failure to provide
any thereof or any interruption or loss of service or use thereof or
any loss of business or (iv) the Aircraft or transactions contemplated
hereby or by the other related documents, in each case of (i) through
(iv) above, other than (a) taxes (or Claims resulting from taxes)
which are based upon or measured by the Secured Party's or any
Lender's net income or that are imposed because the Secured Party or a
Lender is not a "United States person" within the meaning of Section
7701(a)(30) of the Internal Revenue Code of 1986, as amended or (b)
Claims arising from or caused by the gross negligence and willful
misconduct of the Secured Party or any Lender; and shall, at its own
cost and expense, defend any and all suits which may be brought
against Secured Party or the Lenders, either alone or in conjunction
with others upon any such liability or claim or claims and shall
satisfy, pay and discharge any and all judgments and fines that may be
recovered against Secured Party and the Lenders in any such action or
actions, provided, however, that Secured Party or the Lenders shall
give Debtors written notice of any such claim or demand;
(n) if reasonably available, upon the request of Secured
Party, if any of the Collateral consists of software, to inform
Secured Party of the name of the licensor of such software and to
provide Secured Party with a copy of the license agreement; and
(o) if any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or
in the interpretation or application thereof or compliance by such
Lender or any corporation controlling such Lender with any request or
directive regarding capital adequacy (whether or not having the force
of law) from any Governmental Authority made subsequent to the date
hereof shall have the effect of reducing the rate of return on such
Lender's or such corporation's capital as a consequence of its
obligations under its Promissory Note and Agreement to a level below
that which such Lender or such corporation could have achieved but for
such adoption, change or compliance (taking into consideration such
Lender's or such corporation's policies with respect to capital
adequacy) by an amount deemed by such Lender to be material, then from
time to time, after submission by such Lender to the Debtors (with a
copy to the Secured Party) of a written request therefor (which
request shall set forth, in reasonable detail, the basis and
calculation of the additional amounts sought), the Debtors shall pay
to such Lender such additional amount or amounts as set forth in the
aforesaid notice; provided, that the Debtors shall not be required to
compensate a Lender pursuant to this subsection (o) for any amounts
incurred more than six months prior to the date on which such Lender
notified the Debtors of such Lender's intention to claim compensation
therefor; provided, further, that, if the circumstances giving rise to
such claim have a retroactive effect, then such six-month period shall
be extended to include the period of such retroactive affect. A
certificate as to any additional amounts payable pursuant to this
subsection (o) submitted by any Lender to the Debtors (with a copy to
the Secured Party) and setting forth, in reasonable detail, the basis
and calculation of such amounts shall be conclusive in the absence of
manifest error.
8. INSURANCE AND RISK OF LOSS.
All risk of loss, damage or destruction of the Collateral shall at all
times be on Debtors. Debtors shall procure forthwith and maintain at Debtors'
expense aircraft hull insurance, including all-risk ground and flight insurance
on the Collateral for an amount at least equal to $48,000,000 (provided that no
co-insurance clause in any such policy may limit the amount to be paid in the
event of a Casualty to an amount less than $48,000,000), subject to deductibles
in such minimum amounts as are consistent with industry standards which, in any
event, shall not be greater than $750,000, for the life of this Security
Agreement plus third party liability insurance and shall promptly deliver each
policy to Secured Party with a standard long-form mortgagee endorsement
attached thereto showing loss payable to Secured Party for amounts in excess of
$750,000; and providing that the Secured Party and the Lenders are additional
insureds thereunder; and providing Secured Party with not less than 30 days
written notice of cancellation; each such policy shall be in form, terms and
amount and with insurance carriers that are financially sound and solvent,
rated in Best's Insurance Guide or any successor thereto with a general policy
rating of "A-" and a size rating of at least "VIII" or otherwise satisfactory
to Secured Party; Secured Party's acceptance of policies in lesser amounts or
risks shall not be a waiver of Debtors' foregoing obligations. As to Secured
Party's interest in such policy, no act or omission of Debtors or any of its
officers, agents, employees or representatives shall affect the obligations of
the insurer to pay the full amount of any loss.
Subject to the provisions of the next paragraph, Debtors hereby assign
to Secured Party any monies which may become payable under any such policy of
hull insurance and irrevocably constitutes and appoints Secured Party as
Debtors' attorney in fact (a) to make claims for any monies which may become
payable under such and other insurance on the Collateral including returned or
unearned premiums; and (b) to endorse Debtors' name on any check, draft or
other instrument received in payment of claims or returned or unearned premiums
under each policy and to apply the funds to the payment of the indebtedness
owing to Secured Party, provided, however, Secured Party is under no obligation
to do any of the foregoing.
Debtor shall not settle any claims under any hull insurance policy for
less than the outstanding indebtedness under the Promissory Notes and
Agreements in the case of a Casualty, or the total amount necessary to complete
any repairs in the case of any other event of loss or damage exceeding
$1,500,000 to any Engine, Part or Airframe, in each case without the consent of
the Secured Party, which consent shall not be unreasonably withheld. Debtor may
settle all other claims.
In the event of Casualty, Debtors pay the Casualty Amount required
pursuant to the Promissory Notes and Agreements. Upon payment of the Casualty
Amount, and provided no other amount is due hereunder, Debtors will be entitled
to recover possession of the Aircraft and Collateral free and clear of the
right and interest of Secured Party. In the event of loss of or damage to any
Engine, Part or Airframe that does not constitute a Casualty, Debtors will
comply with Paragraph 14 hereof. So long as no Event of Default has occurred
and continuing, the proceeds of any insurance claim for partial loss or damage
to any Engine, Part or Airframe (a) in an amount less than or equal to $750,000
shall be paid directly by the insurance company to Debtors (b) in an amount in
excess of $750,000 shall be paid to the Secured Party to be applied to pay for
replacements or repairs as requested by Debtors or, if funded by Debtors, shall
be paid over to Debtors. Any excess amounts shall be paid to the Secured Party
and applied to the outstanding principal amount of the Promissory Notes and
Agreements on the next Payment Date.
Should Debtors fail to furnish such insurance policy to Secured Party,
or to maintain such policy in full force, or to pay any premium in whole or in
part relating thereto, then Secured Party or the Lenders, without waiving or
releasing any default or obligation by Debtors, may (but shall be under no
obligation to) obtain and maintain insurance and pay the premium therefor on
behalf of Debtors and charge the premium to Debtors' indebtedness under this
Security Agreement. The full amount of any such premium paid by Secured Party
shall be payable by Debtors upon demand, and failure to pay same shall
constitute an event of default under this Security Agreement.
9. EVENTS OF DEFAULT; ACCELERATION.
The following are events of default under this Security Agreement
("Events of Default") which will allow Secured Party to take action under this
Paragraph and under Paragraph 10:
(a) any of Debtors' payment obligations to Secured Party or
the Lenders under this agreement or any other Operative Document is
not paid promptly when due in the case of principal or within five (5)
days of the due date in the case of all other amounts;
(b) the Guarantor or either Debtor defaults in the
performance of any covenant or agreement set forth herein or in any
other Operative Document (other than as provided in subsection (a) of
this Paragraph), and such default shall continue unremedied for a
period of 30 days after the earlier of (i) the Guarantor or either
Debtor becoming aware of such default or (ii) receipt by the Guarantor
or either Debtor of written notice from the Secured Party or any
Lender of such default;
(c) (i) the Guarantor or any Debtor shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of
a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or the
Guarantor or any Debtor shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the
Guarantor or any Debtor any case, proceeding or other action of a
nature referred to in subsection (i) above that (A) results in the
entry of an order for relief or any such adjudication or appointment
or (B) remains undismissed, undischarged or unbonded for a period of
60 days; or (iii) there shall be commenced against the Guarantor or
any Debtor any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets that results in the entry of
an order for any such relief that shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Guarantor or any Debtor shall take any
action in furtherance of, or indicating its consent to, approval of,
or acquiescence in, any of the acts set forth in subsection (i), (ii),
or (iii) above; or (v) the Guarantor or any Debtor shall generally
not, or shall admit in writing its inability to, pay its debts as they
become due;
(d) the Guaranty is terminated for any reason whatsoever,
including, without limitation, a determination by any Governmental
Authority that the Guaranty is invalid, void or unenforceable or the
Guarantor shall terminate, contest or deny in writing the validity or
enforceability of any of its obligations under the Guaranty; or
(e) any representation or warranty made by either Debtor or
the Guarantor in any Operative Document shall prove to have been
inaccurate in any material respect on or as of the date made or deemed
made.
If an Event of Default exists, (i) the Secured Party and the Lenders
may exercise any rights under and with respect to any of the Operative
Documents, (ii) any Lender may proceed to protect and enforce the rights of
such Lender by an action at law, suit in equity or other appropriate
proceeding, whether for the specific performance of any agreement contained
herein or in any Operative Document, or for an injunction against a violation
of any of the terms hereof or thereof, or in aid of the exercise of any power
granted hereby or thereby or by law or otherwise, and (iii) the Secured Party
and any Lender may exercise any rights or remedies under applicable law. No
course of dealing and no delay on the part of any Lender in exercising any
right, power or remedy shall operate as a waiver thereof or otherwise prejudice
such Lender's rights, powers or remedies. No right, power or remedy conferred
by this note any holder thereof shall be exclusive of any other right, power or
remedy referred to herein or therein or now or hereafter available at law, in
equity, by statute or otherwise. This acceleration of all indebtedness, if
elected by Secured Party or the Lenders, shall be subject to all applicable
laws, including laws as to rebates and refunds of unearned charges.
10. SECURED PARTY'S REMEDIES AFTER DEFAULT; CONSENT TO ENTER PREMISES.
If an Event of Default exists, Secured Party shall have all the rights
and remedies of a secured party under the Uniform Commercial Code and any other
applicable laws, including the right to any deficiency remaining after
disposition of the Collateral for which Debtors hereby agree to remain fully
liable, Secured Party may require Debtors to return the Collateral to Secured
Party at a place to be designated by Secured Party which is reasonably
convenient to both parties. Secured Party may sell or lease the Collateral at a
time and location of its choosing provided that the Secured Party acts in good
faith and in a commercially reasonable manner. Secured Party will give Debtors
reasonable notice of the time and place of any public sale of the Collateral or
of the time after which any private sale of the Collateral or any other
intended disposition thereof is to be made. Unless otherwise provided by law,
the requirement of reasonable notice shall be met if such notice is mailed,
postage prepaid, to the address of Debtors shown herein at least ten days
before the time of the sale or disposition. If permitted by law, the Sheriff of
any county in which the Collateral is located may, on request of Secured Party
and the delivery to the Sheriff of a copy hereof, take possession of the
Collateral and sell the same in the manner prescribed by applicable law.
Expenses of retaking, holding, preparing for sale, selling and the like shall
include reasonable attorneys' fees and other legal expenses. While repossessing
Collateral, or removing it from a place of repossession to a place of storage
and/or sale, Secured Party may, if permitted by law, use any of Debtors'
licenses in respect to Collateral.
11. WAIVER OF DEFAULTS; AGREEMENT INCLUSIVE.
Secured Party may in its sole discretion waive a default, or cure, at
Debtors' expense, a default. Any such waiver in a particular instance or of a
particular default shall not be a waiver of other defaults or the same kind of
default at another time. No modification or change in this Security Agreement
or any related note, instrument or agreement shall bind Secured Party unless in
writing signed by Secured Party. No oral agreement shall be binding.
12. FINANCING STATEMENTS; CERTAIN EXPENSES; FAA DOCUMENTS.
Debtors authorize Secured Party to file a financing statement with
respect to the Collateral, which financing statements may describe the
collateral in the same manner described herein or in any other manner as
Secured Party may determine and ratify the filing by Secured Party of such
financing statements previously filed. At the reasonable request of Secured
Party, Debtors will execute any financing statements, agreements or documents,
in form reasonably satisfactory to Secured Party which Secured Party may deem
reasonably necessary or advisable to establish and maintain a perfected
security interest in the Collateral, and will pay the reasonable cost of filing
or recording the same in all public offices deemed necessary or advisable by
Secured Party. Debtors also agree to pay all reasonable costs and expenses
incurred by Secured Party in conducting UCC, tax or other lien searches against
the Debtors or the Collateral and such other fees as may be agreed. At the
reasonable request of Secured Party, Debtors will join Secured Party in
executing any additional documents needed to properly register the lien of the
Secured Party on the Collateral with the FAA.
13. WAIVER OF DEFENSES ACKNOWLEDGMENT.
The Secured Party, subject to the terms of the Intercreditor and
Collateral Agency Agreement among the Lenders and the Secured Party, or any
Lender may assign this Security Agreement or its note in whole or in part to a
third party ("Assignee"). If Secured Party or any Lender assigns this Security
Agreement or its note in whole or in part to an Assignee, then after such
assignment:
(a) Debtors will make all payments directly to such Assignee
at such place as Assignee may from time to time designate in writing;
(b) Debtors agree that they will settle all claims,
defenses, setoffs and counterclaims it may have against Secured Party
or any Lender directly with Secured Party or such Lender and will not
set up any such claim, defense, setoff or counterclaim against
Assignee, Secured Party and such Lender hereby agreeing to remain
responsible therefore;
(c) Secured Party or such Lender shall not be Assignee's
agent for any purpose and shall have no authority to change or modify
this Security Agreement or any related document or instrument; and
(d) Assignee shall have all of the rights, remedies and
obligations, if any, of Secured Party or such Lender hereunder.
14. REPLACEMENTS.
Engine Replacements -- If the Debtors have given notice that they
intend to replace an Engine suffering loss or damage, the Debtors may make,
subject to this Security Agreement, not later than 180 days from the date of
such loss or damage with respect to such Engine, a replacement for such Engine
meeting the suitability standards hereinafter set forth (a "Replacement
Engine"). To be suitable as a Replacement Engine, an engine must be (i) the
same general type and of the same manufacturer, (ii) have the same or better
remaining economic useful life, state of repair and operating condition
(immediately preceding the Casualty assuming that such Engine had been
maintained in accordance with the terms of this Security Agreement but without
regard to hours or cycles remaining to the next overhaul) as the Engine
suffering the Casualty, (iii) have a fair market value of not less than the
fair market value (immediately preceding the Casualty assuming that such Engine
had been maintained in accordance with the terms of this Security Agreement) of
the Engine suffering the Casualty (without regard to hours or cycles remaining
to the next overhaul) and (iv) be free and clear of any liens other than liens
that will be created hereunder and then allowed hereby. In the event any
Replacement Engine is of an earlier year of construction than the replaced
Engine, the Debtors shall deliver an appraisal in form and substance
satisfactory to the Required Lenders from an appraiser selected by the Required
Lenders confirming that such Replacement Engine meets the standards set forth
in clause (ii) and (iii) of the immediately preceding sentence. The Debtors
shall cause a supplement to this Security Agreement to be executed and
delivered to the Secured Party in order to subject such Replacement Engine to
this Security Agreement, and upon such execution and delivery and the receipt
by Lenders of (i) evidence reasonably satisfactory to them of the Debtors'
compliance with the insurance provisions of Paragraph 8 with respect to such
Replacement Engine, and (ii) an opinion of counsel to the Debtors opining as to
the authorization, execution and delivery of the supplement, the enforceability
of the supplement and the filing and recording of the supplement and any
applicable FAA filings or UCC financing statements with respect thereto.
Parts Replacements --Debtors will promptly replace or cause to be
replaced all other Parts which may from time to time become worn out, lost,
stolen, destroyed, seized, confiscated, damaged beyond repair or permanently
rendered unfit for use for any reason whatsoever. All replacement Parts shall
be free and clear of all liens other than liens that will be created hereunder
and then allowed hereby, and shall be in good operating condition. All Parts at
any time removed from the Airframe or either Engine shall remain subject to the
lien of this Security Agreement, no matter where located, until such time as
such parts shall be replaced by parts which meet the requirements for
replacement parts specified above. Upon any replacement part becoming
incorporated or installed in or attached to the Airframe or either Engine,
without further act, (i) such replacement part shall become subject to the lien
of this Security Agreement and be deemed a part for all purposes hereof to the
same extent as the parts originally incorporated or installed in or attached to
the Airframe or such Engine and (ii) the replaced part shall no longer be
deemed a part hereunder.
In the event of the requisition for use of the Airframe or the Engines
or engines installed on the Airframe by any Governmental Authority, Debtors
shall promptly notify Secured Party of such requisition or activation, and all
of Debtors' obligations under this Security Agreement with respect to the
Aircraft shall continue to the same extent as if such requisition or activation
had not occurred. All payments received by Secured Party or Debtors from such
Governmental Authority for the use of the Airframe and Engines or engines shall
be paid over to, or retained by, Debtors.
15. MISCELLANEOUS.
Secured Party may correct patent errors herein and fill in such blanks
as serial numbers, date of first payment and the like. Any provisions hereof
contrary to, prohibited by or invalid under applicable laws or regulations
shall be inapplicable and deemed omitted herefrom, but shall not invalidate the
remaining provisions hereof. DEBTORS AND SECURED PARTY EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO, IN
CONNECTION WITH, OR ARISING OUT OF THIS SECURITY AGREEMENT, OR ANY NOTE OR
DOCUMENT DELIVERED PURSUANT TO THIS SECURITY AGREEMENT. This Security Agreement
is executed pursuant to authority of the members of the Debtors. "Debtors",
"Lenders" and "Secured Party as used in this Security Agreement include the
successors or assigns to those parties. The obligations of the Debtors under
this Security Agreement shall be joint and several.
If at any time this transaction would be usurious under applicable
law, then regardless of any provision contained in this Security Agreement or
in any other agreement made in connection with this transaction, it is agreed
that:
(a) the total of all consideration which constitutes
interest under applicable law that is contracted for, charged or
received upon this Security Agreement or any other agreement shall
under no circumstances exceed the maximum rate of interest authorized
by applicable law and any excess shall be credited to the Debtors; and
(b) if Secured Party, at the direction of the Lenders,
elects to accelerate the maturity of, or if Secured Party permits
Debtors to prepay the indebtedness described in Paragraph 4, any
amounts which because of such action would constitute interest may
never include more than the maximum rate of interest authorized by
applicable law, and any excess interest, if any, provided for in this
Security Agreement or otherwise, shall be credited to Debtors
automatically as of the date of acceleration or prepayment.
16. GOVERNING LAW.
THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAW PRINCIPLES (EXCEPT TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
Any suit by Secured Party or any Lender to enforce any claim arising
out of this Security Agreement or any other Operative Document may be brought
in any state or Federal court located in New York having subject matter
jurisdiction, and with respect to any such claim, each party to the Operative
Documents hereby irrevocably: (a) submits to the non-exclusive jurisdiction of
such courts; and (b) consents to the service of process out of said courts in
the manner provided for notices set forth below. The Debtors irrevocably waive,
to the fullest extent permitted by law: (A) any claim, or any objection, that
it now or hereafter may have, that venue is not proper with respect to any such
suit, action or proceeding brought in such a court located in New York
including, without limitation, any claim that any such suit, action or
proceeding brought in such court has been brought in an inconvenient forum; and
(B) any claim that the Debtors is not subject to personal jurisdiction or
service of process in such forum. The Debtors agree that any suit to enforce
any claim arising out of the Operative Documents or any course of conduct or
dealing of Secured Party or any Lender shall be brought and maintained
exclusively in any state or Federal court located in New York. Nothing in this
paragraph shall affect the right of Secured Party or any Lender to bring any
action or proceeding against Debtors or the Collateral in the courts of any
other jurisdiction. The Debtors agree that a final judgment in any action or
proceeding in a state or Federal court within the United States may be enforced
in any other jurisdiction by suit on the judgment or in any other manner
provided by law.
THE DEBTORS, EACH LENDER AND SECURED PARTY WAIVES ANY RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
GUARANTY OR ANY OTHER OPERATIVE DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN
CONNECTION WITH THIS NOTE OR ANY OTHER OPERATIVE DOCUMENT AND AGREES THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
17. AMENDMENT.
This Agreement may only be amended, and the observance of any term
hereof may be waived (either retroactively or prospectively), with (and only
with) the written consent of the Debtors, the Secured Party and the Required
Lenders; provided that any amendment or waiver which would change the
definition of "Required Lenders" shall require the consent of each Lender.
18. NOTICE.
All demands, notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when personally delivered
or one business day after being sent by overnight delivery service or three
days after being deposited in the mail, certified mail postage prepaid, or when
sent by facsimile transmission, if confirmed by mechanical confirmation and if
a copy thereof is promptly thereafter personally delivered, sent by overnight
delivery service or so deposited in the mail, addressed to: (A) the Debtors or
Secured Party at the address set forth below, or at such other address as may
hereafter be furnished by either party to the other and (B) each Lender at its
address set forth below its signature to its Note:
(i) if to the Debtors:
WELLS FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner Trustee under
the Trust Agreement dated as of May 10,
2002 with World Travel, LLC as
Trustor
299 South Main Street, 12th Floor
MAC U1228-120
Salt Lake City, Utah 84111
Attention: Corporate Trust Services
Telecopy: 801-246-5053
Telephone: 801-246-5630
WORLD TRAVEL, LLC
3131 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: Ron Kramer
Facsimile: (702) 770-1100
Telephone: (702) 770-7700
With a copy to:
WORLD TRAVEL, LLC
3131 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: General Counsel
Facsimile: (702) 770-1520
Telephone: (702) 770-2111
(ii) if to the Secured Party:
Wells Fargo Bank,
National Association
c/o Wells Fargo Bank Northwest,
National Association
299 South Main Street, 12th Floor
MAC U1228-120
Salt Lake City, Utah 84111
Dated: May 24, 2005
DEBTORS:
WELLS FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner Trustee
under the Trust Agreement dated as of
May 10, 2002 with World Travel, LLC as
Trustor
By /s/ Val Orton
----------------------------------------
Title Vice President
299 South Main Street, 12th Floor
MAC U1228-120
Salt Lake City, Utah 84111
Type of organization: National Banking
Association
Jurisdiction of organization: United
States of America
Organizational Identification Number
(or "None"): ___________
Location of chief executive office:
Salt Lake City, Utah
WORLD TRAVEL, LLC
By: WYNN LAS VEGAS, LLC,
a Nevada limited liability company,
its sole member
By: WYNN RESORTS HOLDINGS, LLC,
a Nevada limited liability
company, its sole member
By: WYNN RESORTS, LIMITED,
a Nevada corporation,
its sole member
By: /s/ Marc H. Rubinstein
----------------------------
Name: Marc H. Rubinstein
Title: Sr. VP & Secretary
Address: 3131 Las Vegas Blvd. South
Las Vegas, NV 89109
Type of organization: limited
liability company
Jurisdiction of organization: Nevada
Organizational Identification Number
(or "None"): LLC860-2002
Location of chief executive office:
3131 Las Vegas Blvd. South
Las Vegas, NV 89109
SECURED PARTY:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Collateral Agent for the
benefit of the Lenders
By /s/ Val Orton
----------------------------------------
Title Vice President
299 South Main Street, 12th Floor
MAC U1228-120
Salt Lake City, Utah 84111
Type of organization: National
Banking Association
Jurisdiction of organization: United
States of America
Organizational Identification Number
(or "None"): ___________
Location of chief executive office:
Salt Lake City, Utah
SCHEDULE A
ONE 1999 BOEING 737-79U BUSINESS JET AIRCRAFT BEARING MANUFACTURER'S SERIAL
NUMBER 29441, YEAR OF MANUFACTURE 1999 AND FAA REGISTRATION NUMBER N88WR
Engines:
CFM INTERNATIONAL, INC. MODEL CFM 56-7B ENGINE BEARING MANUFACTURER'S SERIAL
NUMBER 874-373
AND
CFM INTERNATIONAL, INC. MODEL CFM 56-7B ENGINE BEARING MANUFACTURER'S SERIAL
NUMBER AND 874-366
APU Allied Signal 131-9B
EQUIPMENT SPECIFICATIONS:
Avionics:
Communication: Triple Gabels Radio Turning Unites
Triple AVTECH Audio Selector
Dual Collins HF Transceivers
Coltech SELCAL
Triple Collins VHF Transceivers
Single 5 Channel Coltech Decoder
Navigation: Five Tube Multi-Function EFIS
Flight Dynamics Heads Up Display
Sextant Attitude/Airspeed/Altimeter Standby Inst.
Enhanced Group Proximity Warning System
Dual Collins Radio Altimeters
Single Collins Weather Radar with Windshear
Capabilities: Single Collins TCAS II Computer
Dual Collins Transponders
Dual Collins VOR/Marker Beacon Receivers
Dual Collins DME Receivers
Dual Collins ADF Receivers
Dual Smith Flight Management Systems
Dual Multi Mode Receiver with GPS/ILS
Teledyne Airborne Date Loader
Smith Auto Throttle System
CVR: Single L3 communication Cockpit Voice Recorder
FDR: Single L3 communications SS Flight Data Recorder
ELT: Single Artex 3 Channel Emergency Locator Beacon
Together with all present and future appliances, parts, instruments,
appurtenances, accessories, furnishings and other equipment of whatever nature,
that may from time to time be incorporated or installed in or attached to the
Airframe or any Engine and the proceeds of any of the foregoing.
Initial MHR
--------
APPENDIX 1
TO
OPERATIVE DOCUMENTS
In the Operative Documents, unless the context otherwise requires:
(a) any term defined below by reference to another
instrument or document shall continue to have the meaning ascribed
thereto whether or not such other instrument or document remains in
effect;
(b) words importing the singular include the plural and vice
versa;
(c) a reference to a part, clause, section, article, exhibit
or schedule is a reference to a part, clause, section and article of,
and exhibit and schedule to, such Operative Document;
(d) a reference to any statute, regulation, proclamation,
ordinance or law includes all statutes, regulations, proclamations,
ordinances or laws amending, supplementing, supplanting, varying,
consolidating or replacing them, and a reference to a statute includes
all regulations, proclamations and ordinances issued or otherwise
applicable under that statute;
(e) a reference to a document includes any amendment or
supplement to, or replacement or novation of, that document;
(f) a reference to a party to a document includes that
party's successors and permitted assigns; and
(g) references to "including" means including without
limiting the generality of any description preceding such term and for
purposes hereof the rule of ejusdem generis shall not be applicable to
limit a general statement followed by or referable to an enumeration
of specific matters to matters similar to those specifically
mentioned.
Further, each of the parties to the Operative Documents and their
counsel have reviewed and revised the Operative Documents, or requested
revisions thereto, and the usual rule of construction that any ambiguities are
to be resolved against the drafting party shall be inapplicable in construing
and interpreting the Operative Documents.
"Act" is defined in Paragraph 6(f) of the Security Agreement.
"Adjusted Base Rate" shall mean the Base Rate plus the Applicable
Lender Margin.
"Adjusted LIBOR Rate" shall mean the LIBOR Rate plus the Applicable
Lender Margin.
"Administrative Charge" shall mean an amount equal to the amount, if
any, required to compensate each Lender for any loss (other than loss of
anticipated profits) or expense that such Lender may incur as a result of the
Makers' payment of principal on a Promissory Note and Agreement on any date
other than on a Payment Date. Such indemnification may include an amount equal
to the excess, if any, of (i) the amount of interest that would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment to the last day of such Interest period
in each case at the applicable rate of interest for such Loans provided for
herein (excluding, however, the Applicable Lender Margin included therein, if
any) over (ii) the amount of interest (as reasonably determined by such Lender)
that would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank market. A
certificate as to any amounts payable pursuant to this definition submitted to
the Makers by any Lender shall be conclusive in the absence of manifest error.
"Affiliate" shall mean, as applied to any Person, any other Person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with") as applied to any Person means the power,
directly or indirectly, either to (a) vote 10% or more of the securities having
ordinary voting power for the election of directors (or persons performing
similar functions) of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Aircraft" is defined in Paragraph 1 of the Security Agreement.
"Aircraft Lease" is defined in Paragraph 7(d) of the Security
Agreement.
"Aircraft Trust" is defined in Paragraph 1 of the Security Agreement.
"Airframe" is defined in Paragraph 1 of the Security Agreement.
"Applicable Administrative Charge" shall mean, as of any date of
determination in respect of any event, any Administrative Charge determined to
be due and owing in respect of such event.
"Applicable Lender Margin" shall mean (i) at any time of determination
of the LIBOR Rate, 2.375% per annum, and (ii) at any time of determination of
the Base Rate, 1.25% per annum.
"Approved Lease" means the Aircraft Lease Agreement dated as of May
24, 2005 by and between Owner and World Travel (the "Aircraft Head Lease") or
any other lease or operating agreement between Owner and World Travel, or any
Affiliate of World Travel, substantially in the form of the Aircraft Head
Lease.
"Approved Sublease" means the Aircraft Sublease made and entered into
as of the 24th day of May, 2005 by and between World Travel and Las Vegas Jet,
LLC (the "Aircraft Sublease"), or any other lease between World Travel, or any
Affiliate of World Travel, substantially in the form of the Aircraft Sublease.
"Assignee" is defined in Paragraph 13 of the Security Agreement.
"Base Rate" for any day shall mean a rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1%) equal to the greatest of (a) the Prime
Rate in effect on such day and (b) the Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. Any change in the Base Rate due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate or
the Federal Funds Effective Rate, respectively.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"BofA" shall mean Bank of America, N.A., together with its successors
and assigns.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, a day other than a Saturday, Sunday or other day on which
commercial banks in New York City, New York or Las Vegas, Nevada or Salt Lake
City, Utah are authorized or required by law to close and (ii) with respect to
all notices and determinations in connection with, and payments of principal
and interest on, amounts under this Promissory Note and Agreement bearing
interest at the Adjusted LIBOR Rate, any day which is a Business Day described
in clause (i) above and which is also a day for trading by and between banks in
Dollar deposits in the New York interbank market.
"Casualty" shall mean any of the following events in respect of the
Aircraft or Airframe: (a) the total loss of such Aircraft or Airframe, the
total loss of use thereof due to theft, disappearance, destruction, damage
beyond repair or the rendering of such Aircraft or Airframe permanently unfit
for normal use for any reason whatsoever (other than obsolescence); (b) any
damage to such Aircraft or Airframe which results in an insurance settlement
with respect to such Aircraft or Airframe on the basis of a total loss or a
constructive total loss; (c) the permanent condemnation, confiscation or
seizure of, or the requisition of title to or use of, such Aircraft or
Airframe; or (d) as a result of any Requirement of Law or other action by any
Governmental Agency, the use of such Aircraft or Airframe in the normal course
of the Makers' or any of their affiliate's business shall have been prohibited,
directly or indirectly, for a period equal to the lesser of 180 consecutive
days and the remaining period until the Maturity Date.
"Casualty Amount" is defined in Schedule 3 to the Promissory Notes and
Agreements.
"Casualty Notice" is defined in Schedule 3 to the Promissory Notes and
Agreements.
"Casualty Settlement Date" is defined in Schedule 3 to the Promissory
Notes and Agreements.
"CIT" shall mean The CIT Group/Equipment Financing, Inc., together
with its successors and assigns.
"Collateral" is defined in Paragraph 1 of the Security Agreement.
"Collateral Agent" shall mean Wells Fargo Bank, National Association,
as collateral agent under the Intercreditor Agreement and its successors.
"Debtors" shall mean the Owner and World Travel.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"Engine" is defined in Paragraph 1 of the Security Agreement.
"Event of Default" shall have the meaning set forth in Paragraph 9 of
the Security Agreement.
"FAA" shall mean the Federal Aviation Administration, or any successor
agency thereto.
"Federal Funds Effective Rate" for any day shall mean the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations for the day of such transactions received by the
Collateral Agent from three federal funds brokers of recognized standing
selected by it.
"GAAP" shall mean generally accepted accounting principles in the
United States, from time to time.
"Governmental Agency" or "Governmental Authority" shall mean any
national, state or local government (whether domestic or foreign), any
political subdivision thereof or any other governmental, quasi-governmental,
judicial, public or statutory instrumentality, authority, body, agency, bureau
or entity, (including the Nevada Gaming Authorities, any zoning authority, the
FDIC, the Comptroller of the Currency or the Federal Reserve Board, any central
bank or any comparable authority), and entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government or any arbitrator with authority to bind a party at law.
"Guarantor" shall mean Wynn Las Vegas, LLC, a Nevada limited liability
company.
"Guaranty" shall mean that certain Guaranty dated May 24, 2005 by the
Guarantor in favor of the Lenders and the Collateral Agent.
"Intercreditor Agreement" shall mean that certain Intercreditor and
Collateral Agency Agreement dated May 24, 2005 among the Lenders and the
Collateral Agent.
"Interest Period" shall mean, initially, the period commencing on the
borrowing, with respect to the Promissory Notes and Agreements and ending June
30, 2005, and thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to the Promissory Notes and Agreements and
ending 3 months thereafter; provided that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period that would otherwise extend beyond
the Maturity Date shall end on the Maturity Date, as applicable; and
(iii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month.
"Interest Rate" shall mean, for each day during each Interest Period
with respect thereto, (i) a rate per annum equal to the Adjusted LIBOR Rate or
(ii) if the LIBOR Rate is illegal, unavailable or impracticable, as described
in Schedule 1 to the Promissory Notes and Agreements, the Adjusted Base Rate.
"Lender" shall mean BofA or CIT and "Lenders" shall mean BofA and CIT,
collectively.
"LIBOR Rate" shall mean, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for deposits in U.S. Dollars for a 3 month period which
appears on the Bloomberg Page BBAM published by the British Bankers Association
or any successor page or source thereto, effective as of 11:00 a.m. (London,
England time) two (2) Business Days prior to the beginning of such Interest
Period; provided that the LIBOR Rate for the first Interest Period commencing
on the borrowing shall be a rate per annum for a 30-day period.
"Loans" shall mean the principal amount outstanding on all of the
Promissory Notes and Agreements secured by the Security Agreement.
"Maintenance Program" is defined in Paragraph 6(f) of the Security
Agreement.
"Makers" shall mean the Owner and World Travel.
"Maturity Date" shall mean March 31, 2010, or such earlier date on
which:
(i) the Makers are required to pay the Casualty Amount, or
(ii) the Makers elect to pay the Payoff Amount, or
(iii) the holder of this Negotiable Promissory Note and
Agreement elects to accelerate it note's maturity pursuant to the
provisions hereof.
"Minimum Prepayment Amount" shall mean $10,000,000 of the aggregate
principal amount of the Loans then outstanding.
"Operative Documents" shall mean the Promissory Notes and Agreements,
the Security Agreement, the Guaranty and the Intercreditor Agreement.
"Overdue Rate" shall mean rate per annum which is 2% above the
applicable Interest Rate then in effect.
"Owner" is defined in Paragraph 1 of the Security Agreement.
"Parts" is defined in Paragraph 1 of the Security Agreement.
"Payment Date" shall mean (i) the last day of each Interest Period and
(ii) the Maturity Date.
"Pay Off Amount" is defined in the Prepayment Rider to the Negotiable
Promissory Notes and Agreements.
"Permitted Liens" is defined in Paragraph 2 of the Security Agreement.
"Person" shall mean an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Prime Rate" shall mean the rate which Bank of America, N.A.
announces, from time to time, as its prime lending rate, the Prime Rate to
change when and as such prime lending rate changes. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged by Bank of America, N.A. to any customer of Bank of America,
N.A. The Makers acknowledge that Bank of America, N.A. may, from time to time,
make commercial loans or other loans at rates of interest at, above or below
the Prime Rate.
"Promissory Notes and Agreements" shall mean the Promissory Notes and
Agreements dated May 24, 2005 by the Makers in favor of each of BofA and CIT.
"Property" shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, capital stock.
"Required Lenders" shall mean at anytime, the Lenders holding 76% or
more in principal or face amount of the Promissory Notes and Agreements of the
Debtors then outstanding.
"Requirement of Law" shall mean, as to any Person, the governing
documents of such Person, and any law, treaty, order, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its Property or
to which such Person or any of its Property is subject.
"Security Agreement" shall mean that certain Security Agreement, dated
May 24, 2005 between each of the Debtors and the Collateral Agent.
"Secured Party" shall mean the Collateral Agent.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the State of Nevada.
"World Travel" shall mean World Travel, LLC, a Nevada limited
liability company.
"Wynn Credit Agreement" shall mean the CREDIT AGREEMENT dated as of
December 14, 2004 and entered into among the Guarantor, the several banks and
other financial institutions or entities from time to time party to this
Agreement as lenders, DEUTSCHE BANK SECURITIES INC., as lead arranger and joint
book running manager, DEUTSCHE BANK TRUST COMPANY AMERICAS, as administrative
agent (in such capacity and together with its successors and assigns, the
"Administrative Agent"), issuing lender and swing line lender, BANC OF AMERICA
SECURITIES LLC, as lead arranger and joint book running manager, BANK OF
AMERICA, N.A., as syndication agent, BEAR, STEARNS & CO. INC., as arranger and
joint book running manager, BEAR STEARNS CORPORATE LENDING INC., as joint
documentation agent, J.P. MORGAN SECURITIES INC., as arranger and joint book
running manager, JPMORGAN CHASE BANK, N.A., as joint documentation agent, SG
AMERICAS SECURITIES, LLC, as arranger and joint book running manager, and
SOCIETE GENERALE, as joint documentation agent, as the same may be, in whole or
in part, amended, restated, refinanced, renewed, extended, supplemented or
otherwise modified from time to time; provided that if at any time the Wynn
Credit Agreement is no longer in effect, "Wynn Credit Agreement" shall refer to
the terms, covenants and definitions set forth in the Wynn Credit Agreement as
in effect on the last day such agreement was in effect.
Exhibit 10.4
EXECUTION COPY
GUARANTY
To: The CIT Group/Equipment Financing, Inc. ("CIT")
Bank of America, N.A. ("BofA")
Wells Fargo Bank, National Association, as Collateral Agent
The undersigned (hereinafter the "undersigned" or the "Guarantor")
requests each of you to extend credit to or to purchase security agreements,
leases, notes, accounts and/or other obligations (herein generally termed
"paper") of or from or otherwise to do business with WELLS FARGO BANK
NORTHWEST, NATIONAL ASSOCIATION, not in its individual capacity, but solely as
Owner Trustee under the Trust Agreement dated as of May 10, 2002 with World
Travel, LLC, as Trustor (the "Owner"), and WORLD TRAVEL, LLC (the "Company"),
and to induce you so to do and in consideration thereof and of benefits to
accrue to the undersigned therefrom, the undersigned, as a primary obligor,
unconditionally guarantees to you that the Company will fully and promptly pay
and perform all of its present and future obligations to you under the
Operative Documents, including, without limitation, the principal amount of and
interest on the Notes and all other amounts due and owing to you under the
Operative Documents, whether direct or indirect, joint or several, absolute or
contingent, secured or unsecured, matured or unmatured and whether originally
contracted with you or otherwise acquired by you, irrespective of any
invalidity or unenforceability of any such obligation or the insufficiency,
invalidity or unenforceability of any security therefor; and agrees, without
your first having to proceed against the Company or to liquidate paper or any
security therefor, to pay on demand all sums due and to become due to you under
the Operative Documents, including, without limitation, the principal amount of
and interest on the Notes and all other amounts due and owing to you under the
Operative Documents, from the Company and all costs, attorneys' fees or
expenses which may be suffered by you by reason of the Company's default or
default of the undersigned hereunder. This guaranty is an unconditional
guarantee of payment and performance. The guarantor shall not be released or
discharged, either in whole or in part, by your failure or delay to perfect or
continue the perfection of any security interest in any property which secures
the obligations of the Company or the undersigned to you, or to protect the
property covered by such security interest. Capitalized terms used herein and
not otherwise defined shall have the meaning set forth in Appendix 1 hereto.
The undersigned hereby further agrees and covenants to the agreements
set forth on Schedule A hereto.
No termination hereof shall be effected by the bankruptcy, insolvency
or cessation of business as a going concern of the undersigned or the Company.
It is the purpose and intent of the undersigned that its obligations under this
guaranty shall be absolute and unconditional and that this guaranty shall
remain in full force and effect until the irrevocable payment in full of all
obligations guaranteed hereby.
The undersigned waives: notice of acceptance hereof; presentment,
demand, protest and notice of nonpayment or protest as to any note or
obligation signed, accepted, endorsed or assigned to you by the Company, any
and all rights of subrogation, reimbursement, indemnity, exoneration,
contribution or any other claim which the undersigned may now or hereafter have
against the Company or any other person directly or contingently liable for the
obligations guaranteed hereunder, or against or with respect to the Company's
property (including, without limitation, property collateralizing its
obligations to you), arising from the existence or performance of this guaranty
until payment in full of all obligations guaranteed hereby; any and all
defenses based on suretyship or any other applicable law, including without
limitation all rights and defenses arising out of (i) an election of remedies
by you even though that election of remedies may have destroyed rights of
subrogation and reimbursement against the Company by operation of law or
otherwise, (ii) protections afforded to the Company pursuant to antideficiency
or similar laws limiting or discharging the Company's obligations to you, (iii)
the invalidity or unenforceability of this guaranty or any of the Operative
Documents or the impossibility or illegality of performance of any obligations
thereunder, (iv) the failure to notify the undersigned of the disposition of
any property securing the obligations of the Company, (v) the commercial
reasonableness of such disposition or the impairment, however caused, of the
value of such property, (vi) any change in circumstances affecting performance
by the undersigned or the Company, and (vii) any duty on your part (should such
duty exist) to disclose to the undersigned any matter, fact or thing related to
the business operations or condition (financial or otherwise) of the Company or
its affiliates or property, whether now or hereafter known by you.
You may at any time and from time to time, without the undersigned's
consent, without notice to the undersigned and without affecting or impairing
the obligation of the undersigned hereunder, do any of the following:
(a) renew, extend (including extensions beyond the original
term of the respective item of paper), modify (including changes in
interest rates), release or discharge any obligations of the Company,
of its customers, of co-guarantors (whether hereunder or under a
separate instrument) or of any other party at any time directly or
contingently liable for the payment of any of said obligations;
(b) accept partial payments of said obligations;
(c) accept new or additional documents, instruments or
agreements relating to or in substitution of said obligations;
(d) settle, release (by operation of law or otherwise),
compound, compromise, collect or liquidate any of said obligations and
the security therefor in any manner;
(e) consent to the transfer or return of the security, take
and hold additional security or guaranties for said obligations;
(f) amend, exchange, release or waive any security or
guaranty: or
(g) bid and purchase at any sale of paper or security and
apply any proceeds or security, and direct the order and manner of
sale.
If a claim is made upon you at any time for repayment or recovery of
any amount(s) or other value received by you, from any source, in payment of or
on account of any of the obligations of the Company guaranteed hereunder and
you repay or otherwise become liable for all or any part of such claim by
reason of:
(a) any judgment, decree or order of any court or
administrative body having competent jurisdiction; or
(b) any settlement or compromise of any such claim,
the undersigned shall remain liable to you hereunder for the amount so repaid
or for which you are otherwise liable to the same extent as such amount(s) had
never been received by you, notwithstanding any termination hereof or the
cancellation of any note or other agreement evidencing any of the obligations
of the Company. This guaranty shall bind our respective heirs, administrators,
representatives, successors, and assigns, and shall inure to your successors
and assigns, including, but not limited to, any party to whom you may assign
any item or items of paper, the undersigned hereby waiving notice of any such
assignment. All of your rights are cumulative and not alternative.
This Agreement may only be amended, and the observance of any term
hereof may be waived (either retroactively or prospectively), with (and only
with) the written consent of the Guarantor and the Required Lenders.
THIS GUARANTY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES (EXCEPT TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
Any suit by Collateral Agent, BofA or CIT to enforce any claim arising
out of this guaranty or any other Operative Document may be brought in any
state or Federal court located in New York having subject matter jurisdiction,
and with respect to any such claim, each party to the Operative Documents
hereby irrevocably: (a) submits to the non-exclusive jurisdiction of such
courts; and (b) consents to the service of process out of said courts in the
manner provided for notices set forth below. The Guarantor irrevocably waives,
to the fullest extent permitted by law: (A) any claim, or any objection, that
it now or hereafter may have, that venue is not proper with respect to any such
suit, action or proceeding brought in such a court located in New York
including, without limitation, any claim that any such suit, action or
proceeding brought in such court has been brought in an inconvenient forum; and
(B) any claim that the Guarantor is not subject to personal jurisdiction or
service of process in such forum. The Guarantor agrees that any suit to enforce
any claim arising out of the Operative Documents or any course of conduct or
dealing of Collateral Agent, BofA or CIT shall be brought and maintained
exclusively in any state or Federal court located in New York. Nothing in this
paragraph shall affect the right of Collateral Agent or any Lender to bring any
action or proceeding against the Company, the Guarantor or the Collateral in
the courts of any other jurisdiction. The Guarantor agrees that a final
judgment in any action or proceeding in a state or Federal court within the
United States may be enforced in any other jurisdiction by suit on the judgment
or in any other manner provided by law.
BY EXECUTION OF THIS GUARANTY THE UNDERSIGNED, AND BY THEIR ACCEPTANCE
OF THIS GUARANTY THE COLLATERAL AGENT, BOFA AND CIT, AGREE TO WAIVE ALL RIGHTS
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ON ANY MATTER
WHATSOEVER ARISING OUT OF, IN CONNECTION WITH, OR RELATED TO THIS GUARANTY.
All demands, notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when personally delivered
or one business day after being sent by overnight delivery service or three
days after being deposited in the mail, certified mail postage prepaid, or when
sent by facsimile transmission, if confirmed by mechanical confirmation and if
a copy thereof is promptly thereafter personally delivered, sent by overnight
delivery service or so deposited in the mail, addressed to: (A) the Company,
the Guarantor or Collateral Agent at the address set forth below, or at such
other address as may hereafter be furnished by either party to the other and
(B) each Lender at its address set forth below its signature to its Note:
(i) if to the Company:
WORLD TRAVEL, LLC
3131 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: Ron Kramer
Facsimile: (702) 770-1100
Telephone: (702) 770-7700
With a copy to:
World Travel, LLC
3131 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: General Counsel
Facsimile: (702) 770-1520
Telephone: (702) 770-2111
(ii) if to Guarantor:
WYNN LAS VEGAS, LLC,
3131 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: Ron Kramer
Facsimile: (702) 770-1100
Telephone: (702) 770-7700
With a copy to:
Wynn Las Vegas, LLC
3131 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: General Counsel
Facsimile: (702) 770-1520
Telephone: (702) 770-2111
(iii) if to the Collateral Agent:
Wells Fargo Bank,
National Association
299 South Main Street, 12th Floor
MAC U1228-120
Salt Lake City, Utah 84111
Dated: May 24, 2005
WYNN LAS VEGAS, LLC,
a Nevada limited liability company,
as the Guarantor
3131 Las Vegas Boulevard South
Las Vegas, Nevada 89109
By: Wynn Resorts Holdings, LLC,
a Nevada limited liability company,
its sole member
By: Wynn Resorts, Limited,
a Nevada corporation,
its sole member
By: /s/ Marc H. Rubinstein
---------------------------
Name: Marc H. Rubinstein
Title: Sr. VP & Secretary
SCHEDULE A
FINANCIAL CONDITION COVENANTS
Section 1.1. The Guarantor hereby agrees that it shall comply with the
covenants of the Guarantor as set forth in Section 7.1 of the Wynn Credit
Agreement, as calculated in accordance with the terms of the Wynn Credit
Agreement.
Section 1.2. The Guarantor hereby agrees that it shall, directly or
indirectly:
(a) Furnish to the Lenders so long as there are not more
than two Lenders, and to the Collateral Agent, if there are more than
two Lenders, which the Collateral Agent shall deliver to the Lenders:
(i) as soon as available, but in any event not
later than the earlier of (1) 10 days after the filing with
the Securities Exchange Commission of the Guarantor's Annual
Report (or Wynn Resorts' Annual Report if no Annual Report
for the Guarantor has been filed) on Form 10-K (or successor
form thereto) with respect to each fiscal year and (2) 90
days after the end of each fiscal year, a copy of the audited
consolidated balance sheets of the Guarantor and its
consolidated Subsidiaries as at the end of such fiscal year
and the related audited consolidated statements of income and
of cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal
year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of
the scope of the audit, by Deloitte & Touche LLP or other
independent certified public accountants of nationally
recognized standing;
(ii) as soon as available, but in any event not
later than the earlier of (1) 10 days after the filing with
the Securities Exchange Commission of the Guarantor's
Quarterly Report (or Wynn Resorts' Quarterly Report if no
Quarterly Report for the Guarantor has been filed) on Form
10-Q (or successor form thereto) with respect to each of the
first three quarterly periods of each fiscal year and (2) 45
days after the end of each of the first three quarterly
periods of each fiscal year, the unaudited consolidated
balance sheets of the Guarantor and its consolidated
Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and of cash flows
for such quarter and the portion of the fiscal year through
the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified
by a responsible officer as being fairly stated in all
material respects (subject to normal year-end audit
adjustments); and
All such financial statements shall be complete and correct in all
material respects (in the case of financial statements delivered
pursuant to subsection (ii) of this Section 1.2(a), subject to normal
year-end audit adjustments) and shall be prepared in reasonable detail
and, in the case of financial statements delivered pursuant to
subsections (i) and (ii) of this Section 1.2(a), in accordance with
GAAP applied consistently throughout the periods reflected therein and
with prior periods (except as approved by such accountants or officer,
as the case may be, and disclosed therein).
(b) Furnish to the Lenders so long as there are not more
than two Lenders, and to the Collateral Agent, if there are more than
two Lenders, which the Collateral Agent shall deliver to the Lenders
concurrently with the delivery of any financial statements pursuant to
Section 1.2(a), (i) a certificate of a responsible officer stating
that such responsible officer has obtained no knowledge of the
existence of any default or Event of Default (as defined in the
Security Agreement) except as specified in such certificate and (ii)
in the case of quarterly or annual financial statements, a compliance
certificate containing all information and calculations necessary for
determining compliance by the Guarantor with the provisions of Section
1.1 of this Schedule as of the last day of the applicable fiscal
quarter or fiscal year, as the case may be.
Unless otherwise defined in Appendix 1 hereto, all capitalized terms
used herein shall have the meanings set forth in the Wynn Credit Agreement.
APPENDIX 1
TO
OPERATIVE DOCUMENTS
In the Operative Documents, unless the context otherwise requires:
(a) any term defined below by reference to another
instrument or document shall continue to have the meaning ascribed
thereto whether or not such other instrument or document remains in
effect;
(b) words importing the singular include the plural and vice
versa;
(c) a reference to a part, clause, section, article, exhibit
or schedule is a reference to a part, clause, section and article of,
and exhibit and schedule to, such Operative Document;
(d) a reference to any statute, regulation, proclamation,
ordinance or law includes all statutes, regulations, proclamations,
ordinances or laws amending, supplementing, supplanting, varying,
consolidating or replacing them, and a reference to a statute includes
all regulations, proclamations and ordinances issued or otherwise
applicable under that statute;
(e) a reference to a document includes any amendment or
supplement to, or replacement or novation of, that document;
(f) a reference to a party to a document includes that
party's successors and permitted assigns; and
(g) references to "including" means including without
limiting the generality of any description preceding such term and for
purposes hereof the rule of ejusdem generis shall not be applicable to
limit a general statement followed by or referable to an enumeration
of specific matters to matters similar to those specifically
mentioned.
Further, each of the parties to the Operative Documents and their
counsel have reviewed and revised the Operative Documents, or requested
revisions thereto, and the usual rule of construction that any ambiguities are
to be resolved against the drafting party shall be inapplicable in construing
and interpreting the Operative Documents.
"Act" is defined in Paragraph 6(f) of the Security Agreement.
"Adjusted Base Rate" shall mean the Base Rate plus the Applicable
Lender Margin.
"Adjusted LIBOR Rate" shall mean the LIBOR Rate plus the Applicable
Lender Margin.
"Administrative Charge" shall mean an amount equal to the amount, if
any, required to compensate each Lender for any loss (other than loss of
anticipated profits) or expense that such Lender may incur as a result of the
Makers' payment of principal on a Promissory Note and Agreement on any date
other than on a Payment Date. Such indemnification may include an amount equal
to the excess, if any, of (i) the amount of interest that would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment to the last day of such Interest period
in each case at the applicable rate of interest for such Loans provided for
herein (excluding, however, the Applicable Lender Margin included therein, if
any) over (ii) the amount of interest (as reasonably determined by such Lender)
that would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank market. A
certificate as to any amounts payable pursuant to this definition submitted to
the Makers by any Lender shall be conclusive in the absence of manifest error.
"Affiliate" shall mean, as applied to any Person, any other Person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with") as applied to any Person means the power,
directly or indirectly, either to (a) vote 10% or more of the securities having
ordinary voting power for the election of directors (or persons performing
similar functions) of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Aircraft" is defined in Paragraph 1 of the Security Agreement.
"Aircraft Lease" is defined in Paragraph 7(d) of the Security
Agreement.
"Aircraft Trust" is defined in Paragraph 1 of the Security Agreement.
"Airframe" is defined in Paragraph 1 of the Security Agreement.
"Applicable Administrative Charge" shall mean, as of any date of
determination in respect of any event, any Administrative Charge determined to
be due and owing in respect of such event.
"Applicable Lender Margin" shall mean (i) at any time of determination
of the LIBOR Rate, 2.375% per annum, and (ii) at any time of determination of
the Base Rate, 1.25% per annum.
"Approved Lease" means the Aircraft Lease Agreement dated as of May
24, 2005 by and between Owner and World Travel (the "Aircraft Head Lease") or
any other lease or operating agreement between Owner and World Travel, or any
Affiliate of World Travel, substantially in the form of the Aircraft Head
Lease.
"Approved Sublease" means the Aircraft Sublease made and entered into
as of the 24th day of May, 2005 by and between World Travel and Las Vegas Jet,
LLC (the "Aircraft Sublease"), or any other lease between World Travel, or any
Affiliate of World Travel, substantially in the form of the Aircraft Sublease.
"Assignee" is defined in Paragraph 13 of the Security Agreement.
"Base Rate" for any day shall mean a rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1%) equal to the greatest of (a) the Prime
Rate in effect on such day and (b) the Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. Any change in the Base Rate due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate or
the Federal Funds Effective Rate, respectively.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"BofA" shall mean Bank of America, N.A., together with its successors
and assigns.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, a day other than a Saturday, Sunday or other day on which
commercial banks in New York City, New York or Las Vegas, Nevada or Salt Lake
City, Utah are authorized or required by law to close and (ii) with respect to
all notices and determinations in connection with, and payments of principal
and interest on, amounts under this Promissory Note and Agreement bearing
interest at the Adjusted LIBOR Rate, any day which is a Business Day described
in clause (i) above and which is also a day for trading by and between banks in
Dollar deposits in the New York interbank market.
"Casualty" shall mean any of the following events in respect of the
Aircraft or Airframe: (a) the total loss of such Aircraft or Airframe, the
total loss of use thereof due to theft, disappearance, destruction, damage
beyond repair or the rendering of such Aircraft or Airframe permanently unfit
for normal use for any reason whatsoever (other than obsolescence); (b) any
damage to such Aircraft or Airframe which results in an insurance settlement
with respect to such Aircraft or Airframe on the basis of a total loss or a
constructive total loss; (c) the permanent condemnation, confiscation or
seizure of, or the requisition of title to or use of, such Aircraft or
Airframe; or (d) as a result of any Requirement of Law or other action by any
Governmental Agency, the use of such Aircraft or Airframe in the normal course
of the Makers' or any of their affiliate's business shall have been prohibited,
directly or indirectly, for a period equal to the lesser of 180 consecutive
days and the remaining period until the Maturity Date.
"Casualty Amount" is defined in Schedule 3 to the Promissory Notes and
Agreements.
"Casualty Notice" is defined in Schedule 3 to the Promissory Notes and
Agreements.
"Casualty Settlement Date" is defined in Schedule 3 to the Promissory
Notes and Agreements.
"CIT" shall mean The CIT Group/Equipment Financing, Inc., together
with its successors and assigns.
"Collateral" is defined in Paragraph 1 of the Security Agreement.
"Collateral Agent" shall mean Wells Fargo Bank, National Association,
as collateral agent under the Intercreditor Agreement and its successors.
"Debtors" shall mean the Owner and World Travel.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"Engine" is defined in Paragraph 1 of the Security Agreement.
"Event of Default" shall have the meaning set forth in Paragraph 9 of
the Security Agreement.
"FAA" shall mean the Federal Aviation Administration, or any successor
agency thereto.
"Federal Funds Effective Rate" for any day shall mean the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations for the day of such transactions received by the
Collateral Agent from three federal funds brokers of recognized standing
selected by it.
"GAAP" shall mean generally accepted accounting principles in the
United States, from time to time.
"Governmental Agency" or "Governmental Authority" shall mean any
national, state or local government (whether domestic or foreign), any
political subdivision thereof or any other governmental, quasi-governmental,
judicial, public or statutory instrumentality, authority, body, agency, bureau
or entity, (including the Nevada Gaming Authorities, any zoning authority, the
FDIC, the Comptroller of the Currency or the Federal Reserve Board, any central
bank or any comparable authority), and entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government or any arbitrator with authority to bind a party at law.
"Guarantor" shall mean Wynn Las Vegas, LLC, a Nevada limited liability
company.
"Guaranty" shall mean that certain Guaranty dated May 24, 2005 by the
Guarantor in favor of the Lenders and the Collateral Agent.
"Intercreditor Agreement" shall mean that certain Intercreditor and
Collateral Agency Agreement dated May 24, 2005 among the Lenders and the
Collateral Agent.
"Interest Period" shall mean, initially, the period commencing on the
borrowing, with respect to the Promissory Notes and Agreements and ending June
30, 2005, and thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to the Promissory Notes and Agreements and
ending 3 months thereafter; provided that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period that would otherwise extend beyond
the Maturity Date shall end on the Maturity Date, as applicable; and
(iii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month.
"Interest Rate" shall mean, for each day during each Interest Period
with respect thereto, (i) a rate per annum equal to the Adjusted LIBOR Rate or
(ii) if the LIBOR Rate is illegal, unavailable or impracticable, as described
in Schedule 1 to the Promissory Notes and Agreements, the Adjusted Base Rate.
"Lender" shall mean BofA or CIT and "Lenders" shall mean BofA and CIT,
collectively.
"LIBOR Rate" shall mean, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for deposits in U.S. Dollars for a 3 month period which
appears on the Bloomberg Page BBAM published by the British Bankers Association
or any successor page or source thereto, effective as of 11:00 a.m. (London,
England time) two (2) Business Days prior to the beginning of such Interest
Period; provided that the LIBOR Rate for the first Interest Period commencing
on the borrowing shall be a rate per annum for a 30-day period.
"Loans" shall mean the principal amount outstanding on all of the
Promissory Notes and Agreements secured by the Security Agreement.
"Maintenance Program" is defined in Paragraph 6(f) of the Security
Agreement.
"Makers" shall mean the Owner and World Travel.
"Maturity Date" shall mean March 31, 2010, or such earlier date on
which:
(i) the Makers are required to pay the Casualty Amount, or
(ii) the Makers elect to pay the Payoff Amount, or
(iii) the holder of this Negotiable Promissory Note and
Agreement elects to accelerate it note's maturity pursuant to the
provisions hereof.
"Minimum Prepayment Amount" shall mean $10,000,000 of the aggregate
principal amount of the Loans then outstanding.
"Operative Documents" shall mean the Promissory Notes and Agreements,
the Security Agreement, the Guaranty and the Intercreditor Agreement.
"Overdue Rate" shall mean rate per annum which is 2% above the
applicable Interest Rate then in effect.
"Owner" is defined in Paragraph 1 of the Security Agreement.
"Parts" is defined in Paragraph 1 of the Security Agreement.
"Payment Date" shall mean (i) the last day of each Interest Period and
(ii) the Maturity Date.
"Pay Off Amount" is defined in the Prepayment Rider to the Negotiable
Promissory Notes and Agreements.
"Permitted Liens" is defined in Paragraph 2 of the Security Agreement.
"Person" shall mean an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Prime Rate" shall mean the rate which Bank of America, N.A.
announces, from time to time, as its prime lending rate, the Prime Rate to
change when and as such prime lending rate changes. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged by Bank of America, N.A. to any customer of Bank of America,
N.A. The Makers acknowledge that Bank of America, N.A. may, from time to time,
make commercial loans or other loans at rates of interest at, above or below
the Prime Rate.
"Promissory Notes and Agreements" shall mean the Promissory Notes and
Agreements dated May 24, 2005 by the Makers in favor of each of BofA and CIT.
"Property" shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, capital stock.
"Required Lenders" shall mean at anytime, the Lenders holding 76% or
more in principal or face amount of the Promissory Notes and Agreements of the
Debtors then outstanding.
"Requirement of Law" shall mean, as to any Person, the governing
documents of such Person, and any law, treaty, order, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its Property or
to which such Person or any of its Property is subject.
"Security Agreement" shall mean that certain Security Agreement, dated
May 24, 2005 between each of the Debtors and the Collateral Agent.
"Secured Party" shall mean the Collateral Agent.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the State of Nevada.
"World Travel" shall mean World Travel, LLC, a Nevada limited
liability company.
"Wynn Credit Agreement" shall mean the CREDIT AGREEMENT dated as of
December 14, 2004 and entered into among the Guarantor, the several banks and
other financial institutions or entities from time to time party to this
Agreement as lenders, DEUTSCHE BANK SECURITIES INC., as lead arranger and joint
book running manager, DEUTSCHE BANK TRUST COMPANY AMERICAS, as administrative
agent (in such capacity and together with its successors and assigns, the
"Administrative Agent"), issuing lender and swing line lender, BANC OF AMERICA
SECURITIES LLC, as lead arranger and joint book running manager, BANK OF
AMERICA, N.A., as syndication agent, BEAR, STEARNS & CO. INC., as arranger and
joint book running manager, BEAR STEARNS CORPORATE LENDING INC., as joint
documentation agent, J.P. MORGAN SECURITIES INC., as arranger and joint book
running manager, JPMORGAN CHASE BANK, N.A., as joint documentation agent, SG
AMERICAS SECURITIES, LLC, as arranger and joint book running manager, and
SOCIETE GENERALE, as joint documentation agent, as the same may be, in whole or
in part, amended, restated, refinanced, renewed, extended, supplemented or
otherwise modified from time to time; provided that if at any time the Wynn
Credit Agreement is no longer in effect, "Wynn Credit Agreement" shall refer to
the terms, covenants and definitions set forth in the Wynn Credit Agreement as
in effect on the last day such agreement was in effect.