Limitation on Disposition of Property. Dispose of any of its Property or Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or issue or sell any shares of Capital Stock to any Person, except: (a) the Disposition for fair market value in the ordinary course of business of obsolete or worn out Property or Property no longer useful in the business of the applicable Loan Party; provided, that (i) such Disposition could not reasonably be expected to materially adversely affect the Project, any of the Mortgaged Properties or any of the Collateral, (ii) to the extent such Property is Collateral, prior to such Disposition any such Property shall be replaced with other Property of (A) substantially equal or greater utility and similar use and (B) either (x) a value at least substantially equal to that of the replaced Property when first acquired or (y) substantially equal or greater quality and, if applicable, prestige and caliber as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and (iii) to the extent such Property is Collateral, the applicable Loan Party shall subject such replacement property to the Lien of the Security Documents in favor of the Lenders of at least the same priority as the Property so replaced and otherwise in compliance with the Borrower Security Agreement and the Aircraft Security Agreement, as applicable; (b) the Disposition of Cash or Cash Equivalents or Permitted Securities (in each case in transactions otherwise permitted hereunder), Investments permitted pursuant to Section 7.8, inventory (in the ordinary course of business) and receivables (in connection with the collection thereof and otherwise as customary in gaming operations of the type conducted by the Loan Parties); (c) Dispositions permitted by Section 7.4 (including the Disposition of Capital Stock of Loan Parties pursuant to Section 7.4(b)); (d) the sale or issuance of any Loan Party's Capital Stock (other than Disqualified Stock) to its direct parent that is a Loan Party in furtherance of Investments permitted pursuant to Section 7.8(e); (e) Dispositions of Property having a fair market value not in excess of $5,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year following the Completion Date; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; (ii) the sole consideration received shall be cash; and (iii) to the extent such Asset Sales relate to the Collateral, the proceeds of such Asset Sales shall be applied to either (A) the prepayment of the Loans pursuant to Section 3.1(a) or (B) the acquisition of assets which shall become a Substitute Item or Substitute Items pursuant to and in accordance with Section 4.7 of the Borrower Security Agreement; (f) subject to Section 4.2 of the Borrower Security Agreement, the Borrower may enter into any leases with respect to any Item of Equipment, and subject to Section 4.2 of the Aircraft Security Agreement, the Aircraft Trustee, or World Travel pursuant to the Aircraft Operating Agreement, may enter into any lease with respect to the Aircraft, and Valvino may enter into any commercial office space leases with respect to the Phase II Land Building; (g) (i) any Loan Party may dedicate space within the Project for the purpose of constructing (A) a mass transit system, (B) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicle traffic, (C) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to and in furtherance of the development, construction and operation of the Project; provided, that in each case such dedication does not materially impair or interfere in the use or operation of the Project or any Loan Party or materially detract from the value of the Property subject thereto and (ii) the exchange of real property between Valvino and ▇▇▇▇▇ County, Nevada, pursuant to which each such party shall transfer to each other fee ownership in real property having approximately equal fair market values; provided, that (A) in no event shall Valvino transfer more than an aggregate amount of 40,000 square feet of real property pursuant to this clause (ii), (B) Valvino shall take such actions as required pursuant to Sections 6.10 and 7.26 of the Wynn Credit Agreement with respect to any real property acquired pursuant to this clause (ii) and (C) such exchange of real property could not reasonably be expected to materially and adversely affect or interfere with the Permitted Business of any Loan Party or have a material adverse effect on the Casino Land, the Golf Course Land or the Phase II Land; (h) (x) the Loan Parties may license trademarks and trade names in the ordinary course of business and, in any event, Wynn Resort Holdings may license to Wynn Resorts, for less than fair market value, any or all Intellectual Property in or relating to the name "Wynn Resorts" (including, without limitation, any and all Intellectual Property identified in subparts (a)(12), (a)(14)-(19), (b)(1), and (c) of Part IX of Schedule 4.9(b)) (collectively, the "Wynn Resorts IP") and (y) ▇▇▇▇ Resorts Holdings may transfer to Wynn Resorts, for less than fair market value, any or all of the Wynn Resorts IP (provided, that all of the Wynn Resorts IP shall be transferred by ▇▇▇▇ Resorts Holdings to Wynn Resorts as soon as is practicable after the Document Closing Date; (i) the incurrence of Liens permitted under Section 7.3, provided that any leases other than those permitted pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5; (j) the applicable Golf Course Land Owner(s) shall be permitted to Dispose of the ▇▇▇▇ Home Site Land to ▇▇. ▇▇▇▇, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition, and (ii) such disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ concurrently consent to such Disposition; (k) the Golf Course Land Owner(s) shall be permitted to Dispose of the Golf Course Land and in connection therewith the applicable Loan Parties shall be permitted to Dispose of their ownership in the Capital Stock of Desert Inn Water and Desert Inn Improvement and the DIIC Water Permits (other than the DIIC Casino Water Permit), and the Lenders hereby consent to such Dispositions, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Dispositions and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition; (l) the applicable Golf Course Land Owner(s) shall be permitted to Dispose of the Home Site Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition; (m) Valvino shall be permitted to Dispose of the Phase II Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition; (n) any Event of Eminent Domain, provided, that the requirements of Section 8.1 are complied with in connection therewith; and (o) Dispositions of Items of Equipment which are replaced pursuant to Section 4.7 of the Borrower Security Agreement. (p) the Disposition of the Aircraft so long as (i) the consideration received for the Aircraft shall be in an amount at least equal to the fair market value thereof, (ii) the sole consideration received shall be cash, and (iii) either (A) the aggregate Net Disposition Proceeds from such Disposition are paid to the Collateral Agent and applied to the prepayment of the Loans used to refinance the Aircraft pursuant to Section 3.1(a) or (1) World Travel or the Aircraft Trustee simultaneously acquires a Replacement Aircraft which becomes subject to the Aircraft Security Agreement pursuant to Section 4.7(c) thereof, (2) the aggregate Net Disposition Proceeds from such Disposition are applied to the acquisition of the Replacement Aircraft and the remaining funds required for the acquisition of the Replacement Aircraft are obtained from only the following sources:
Appears in 1 contract
Sources: Loan Agreement (Wynn Resorts LTD)
Limitation on Disposition of Property. Dispose of any of its Property or Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or issue or sell any shares of Capital Stock to any Person, except:
(a) the Disposition for fair market value in the ordinary course of business of obsolete or worn out Property or Property no longer useful in the business of the applicable Loan Party; provided, that (i) such Disposition could not reasonably be expected to materially adversely affect the Project, any of the Mortgaged Properties or any of the Collateral, (ii) to the extent such Property is Collateral, prior to such Disposition any such Property shall be replaced with other Property of (A) substantially equal or greater utility and similar use and (B) either (x) a value at least substantially equal to that of the replaced Property when first acquired or (y) substantially equal or greater quality and, if applicable, prestige and caliber as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and (iii) to the extent such Property is Collateral, the applicable Loan Party shall subject such replacement property to the Lien of the Security Documents in favor of the Lenders of at least the same priority as the Property so replaced and otherwise in compliance with the Borrower Security Agreement and the Aircraft Security Agreement, as applicableParties;
(b) the Disposition of Cash cash or Cash Equivalents or Permitted Securities (in each case in transactions otherwise permitted hereunder)cash equivalents, Investments permitted pursuant to Section 7.8, inventory (in the ordinary course of businessbusiness (other than the sale of condominiums, time shares, integral ownerships or other similar interests)) and receivables (in connection with the collection thereof and otherwise as customary in gaming operations of the type conducted by the Loan Parties);
(c) Dispositions permitted by Section 7.4 (including the Disposition of Capital Stock of Loan Parties pursuant to Section 7.4(b))7.4;
(d) the sale or issuance of any Loan Party's ’s Capital Stock (other than Disqualified Stock) to its direct parent that is a Loan Party in furtherance of Investments permitted pursuant to Section 7.8(e)parent;
(e) Dispositions of Property having a fair market value not in excess of $5,000,000 40,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year following the Completion DateYear; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; and (ii) the sole consideration received therefor shall be cash; and (iii) to the extent such Asset Sales relate to the Collateral, the proceeds of such Asset Sales shall be applied to either (A) the prepayment of the Loans pursuant to Section 3.1(a) at least 75% in cash or (B) the acquisition of assets which shall become a Substitute Item or Substitute Items pursuant to and in accordance with Section 4.7 of the Borrower Security Agreementcash equivalents;
(f) subject to the last paragraph of this Section 4.2 of the Borrower Security Agreement7.5, the Borrower may enter into any leases with respect to any Item of Equipment, and subject to Section 4.2 of space on or within the Aircraft Security Agreement, the Aircraft Trustee, or World Travel pursuant to the Aircraft Operating Agreement, may enter into any lease with respect to the Aircraft, and Valvino may enter into any commercial office space leases with respect to the Phase II Land BuildingProject;
(g) (i) any Loan Party may dedicate the dedication of space within the Project for the purpose or other Dispositions of Property in connection with and in furtherance of constructing (Ai) a mass transit system, (Bii) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicle vehicular traffic, (Ciii) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to and in furtherance of the development, construction and operation of the Project; provided, that (A) in each case such dedication does or other Dispositions are in furtherance of, and do not materially impair or interfere in the use or operation of operations (or intended use or operations) of, the Project or any Loan Party or materially detract from the value of the Property subject thereto and (ii) the exchange of real property between Valvino and ▇▇▇▇▇ County, Nevada, pursuant to which each such party shall transfer to each other fee ownership in real property having approximately equal fair market values; provided, that (AB) in no event shall Valvino transfer the Loan Parties in the aggregate Dispose of (other than by way of dedication to a Governmental Authority) more than an aggregate amount five acres of 40,000 square feet of real property Real Estate pursuant to this clause (iiSection 7.5(g), (B) Valvino shall take such actions as required pursuant to Sections 6.10 and 7.26 of the Wynn Credit Agreement with respect to any real property acquired pursuant to this clause (ii) and (C) such exchange of real property could not reasonably be expected to materially and adversely affect or interfere with the Permitted Business of any Loan Party or have a material adverse effect on the Casino Land, the Golf Course Land or the Phase II Land;
(h) any Loan Party may (xi) the Loan Parties may license trademarks and trademarks, trade names and other Intellectual Property in the ordinary course of business and, and not interfering in any eventmaterial respect with the ordinary conduct of the business of the Loan Parties and (ii) abandon any trademarks, Wynn Resort Holdings may license to Wynn Resorts, for less than fair market value, any trade names or all other Intellectual Property no longer useful in or relating to the name "Wynn Resorts" (including, without limitation, any and all Intellectual Property identified in subparts (a)(12), (a)(14)-(19), (b)(1), and (c) of Part IX of Schedule 4.9(b)) (collectively, the "Wynn Resorts IP") and (y) ▇▇▇▇ Resorts Holdings may transfer to Wynn Resorts, for less than fair market value, any or all business of the Wynn Resorts IP (provided, that all of the Wynn Resorts IP shall be transferred by ▇▇▇▇ Resorts Holdings to Wynn Resorts as soon as is practicable after the Document Closing DateLoan Parties;
(i) the incurrence of Liens permitted under Section 7.3; provided, provided that any leases other than those permitted pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5;
(j) the applicable Golf Course Land Owner(s) shall be permitted to Dispose Disposition of the ▇W▇▇▇ Home Site Land to ▇or as directed by M▇. ▇▇▇▇, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition, and (ii) such disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ concurrently consent to such Disposition;
(k) the Golf Course Land Owner(s) shall be permitted to Dispose of the Golf Course Land and in connection therewith the applicable Loan Parties shall be permitted to Dispose of their ownership in the Capital Stock of Desert Inn Water and Desert Inn Improvement and the DIIC Water Permits (other than the DIIC Casino Water Permit), and the Lenders hereby consent to such Dispositions, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Dispositions and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(l) the applicable Golf Course Land Owner(s) shall be permitted to Dispose of the Home Site Land, and the Lenders hereby consent to such Disposition, on the conditions provided that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) the cash purchase price paid by M▇. ▇▇▇▇ or his designee for the W▇▇▇ Home Site Land is in immediately available funds (which, if received by a Person other than the Borrower, shall be held by such Person in trust for the benefit of the Borrower and paid to the Borrower no later than one Business Day after receipt of such funds) and equal to or greater than the fair market value of the W▇▇▇ Home Site Land, as determined in good faith by the Loan Parties, (iii) the Mortgaged Properties affected by the Disposition of the W▇▇▇ Home Site Land constitute separate legal parcels under NRS, Chapter 278, (iv) the Borrower shall have certified that construction of M▇. ▇▇▇▇’▇ personal residence on the W▇▇▇ Home Site could not reasonably be expected to materially interfere with the use or operations of the Golf Course and could not otherwise reasonably be expected to impair the overall value of the Project, (v) appropriate reconveyance documentation in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent shall have been prepared reflecting the release of the W▇▇▇ Home Site Land from the Lien of the applicable Mortgage(s) and such documentation shall have been recorded at the C▇▇▇▇ County, Nevada Recorder’s Office, (vi) the Borrower shall have delivered to the Administrative Agent and the Collateral Agent an endorsement, or a commitment by the Title Insurer to issue an endorsement, to the Title Policy, in either case in form and substance reasonably satisfactory to the Administrative Agent, insuring that the execution and recordation of the reconveyance documentation described in clause (v) above does not impair the Lien of the Mortgage(s) affected by such reconveyance documentation and (vii) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the Project, w▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such water permits to the Golf Course Land or the water features of the Project, as the case may be, are located on the W▇▇▇ Home Site Land. Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the Loan Parties such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably requested by the Loan Parties to release the Liens granted for the benefit of the Secured Parties in the W▇▇▇ Home Site Land, and to effectuate such Disposition; provided, that an instrument reasonably acceptable to the Administrative Agent is recorded against the W▇▇▇ Home Site Land to the effect that until the earlier of (x) the Disposition of the Golf Course Land in accordance with Section 7.5(k) or (y) the payment in full of the Obligations, only a personal residence for M▇. ▇▇▇▇ will be developed on the W▇▇▇ Home Site Land, the provisions of such instrument to burden the W▇▇▇ Home Site Land for the benefit of the Golf Course Land;
(k) Disposition of the Golf Course Land and/or, at the option of the Loan Parties, Disposition of the Capital Stock of W▇▇▇ Golf; provided, that the Golf Course Release Conditions are satisfied or (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) such Disposition is permitted pursuant occurs on or after the last day of the second full fiscal quarter of the Borrower occurring after the Phase II Completion Date, (iii) at the time of such Disposition, the Consolidated Leverage Ratio (calculated in accordance with Section 1.3(b)) for the period of four full consecutive fiscal quarters ending on each of the two most recent Quarterly Dates was 5.0 to 1.0 or less (provided, that, in each such case, there shall be excluded from such calculations of the Consolidated Leverage Ratio the Consolidated EBITDA, if any, derived from the Golf Course during any applicable period) and (iv) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the terms water features of the Wynn Credit Agreement or Project (other than the Golf Course), w▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such water permits to the water features of the Project (other than the Golf Course) are located on the Golf Course Land (or otherwise W▇▇▇ Golf shall have transferred (previously or in connection with such Disposition) at no cost to the Borrower such easements as are necessary for the Borrower to access such Points of Diversion, own and operate such w▇▇▇▇ otherwise concurrently consent and transport such water to the water features of the Project and the Borrower shall have taken all actions required pursuant to Section 6.10 with respect to any Property thereby acquired). Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the applicable Loan Parties such documents and instruments, including UCC-3 termination statements, deeds of reconveyance and certificates of Capital Stock, all as may be reasonably requested by the Loan Parties to release the Liens granted for the benefit of the Secured Parties in the Golf Course Land and/or W▇▇▇ Golf, as applicable, and to effectuate such Disposition;
(ml) Valvino shall be permitted to Dispose Disposition of the Phase II Home Site Land, and the Lenders hereby consent to such Disposition, on the conditions ; provided that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) such Disposition is occurs on or after the last day of the fourth full fiscal quarter of the Borrower occurring after the Phase II Completion Date, (iii) at the time of such Disposition, the Consolidated EBITDA of the Borrower for the most recent period of four full consecutive fiscal quarters of the Borrower was equal to or greater than $325,000,000, (iv) the Mortgaged Properties (other than the Home Site Land) affected by the Disposition of the Home Site Land constitute separate legal parcels under Nevada Revised Statutes, Chapter 278, (v) the Borrower shall have certified that construction of permitted pursuant improvements on the Home Site Land could not reasonably be expected to materially interfere with the use or operations of the Golf Course and could not otherwise reasonably be expected to materially impair the overall value of the Project, (vi) appropriate reconveyance documentation in form and substance reasonably satisfactory to the terms Administrative Agent and the Collateral Agent shall have been prepared reflecting the release of the Wynn Credit Agreement or Home Site Land from the Lien of the applicable Mortgage(s) and such documentation shall have been recorded at the C▇▇▇▇ ▇County, Nevada Recorder’s Office, (vii) the Borrower shall have delivered to the Administrative Agent and the Collateral Agent an endorsement, or a commitment by the Title Insurer to issue an endorsement, to the Title Policy, in either case in form and substance reasonably satisfactory to the Administrative Agent, insuring that the execution and recordation of the reconveyance documentation described in clause (vi) above does not impair the Lien of the Mortgage(s) affected by such reconveyance documentation and (viii) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the water features of the Project or the Golf Course, w▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such water permits to the Golf Course Land or the water features of the Project, as the case may be, are located on the Home Site Land (or otherwise concurrently consent W▇▇▇ Golf shall have transferred or reserved for the benefit of the Golf Course Land (previously or in connection with such Disposition) at no cost to the Loan Parties such easements as are necessary for the Loan Parties to access such Points of Diversion, own and operate such w▇▇▇▇ and transport such water to the water features of the Project and/or the Golf Course and the Loan Parties shall have taken all actions required pursuant to Section 6.10 with respect to any Property thereby acquired). Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the Loan Parties such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably requested by the Loan Parties to release the Liens for the benefit of the Secured Parties in the Home Site Land, and to effectuate such Disposition; provided, that an instrument reasonably acceptable to the Administrative Agent is recorded against the Home Site Land to the effect that until the earlier of (x) the Disposition of the Golf Course Land in accordance with Section 7.5(k) or (y) the payment in full of the Obligations, only residential housing and other non-gaming related developments will be developed on the Home Site Land, the provisions of such instrument to burden the Home Site Land for the benefit of the Golf Course Land;
(m) Dispositions of all or a portion of the K▇▇▇▇ Land; provided that (i) any such Disposition shall be in furtherance of the development, construction and operation of the Project (including, without limitation, the construction, development and operation of employee parking facilities and other ancillary facilities) on the K▇▇▇▇ Land and/or on adjacent Property acquired or to be acquired by any Loan Party pursuant to the transaction or series of transactions related to such Disposition, (ii) any such Disposition shall be at fair market value (after taking into consideration any cash and non-cash consideration received for such Disposition from any transaction or series of transactions related to such Disposition), (iii) any Net Cash Proceeds of any such Disposition that are not reinvested or otherwise utilized in furtherance of the matters described in clause (i) above within 360 days after such Disposition shall be deemed Net Cash Proceeds and shall be required to be applied to the prepayment of the Obligations in accordance with Section 2.12(b) (without any right of reinvestment thereunder) and (iv) the Loan Parties shall have taken all actions required pursuant to Section 6.10 with respect to any Property acquired in connection with any transaction or series of transactions related to any such Disposition;
(n) any Event of Eminent Domain, ; provided, that the requirements of Section 8.1 are complied Loan Parties otherwise comply with in connection therewithSections 2.12(c) and 2.24, as applicable; and
(o) Dispositions by any Loan Party to any other Loan Party (other than Capital Corp. or W▇▇▇ Golf (except with respect to Dispositions, the proceeds of Items of Equipment which are replaced necessary for the organizational maintenance of Capital Corp. or W▇▇▇ Golf); provided, that in each case each Loan Party shall have taken all actions required pursuant to Section 4.7 6.10 with respect to any Property acquired by it pursuant to this clause (o); Notwithstanding the foregoing provisions of the Borrower Security Agreement.
this Section 7.5, subsection (pf) the Disposition of the Aircraft so long as
(i) the consideration received for the Aircraft above shall be in an amount at least equal to the fair market value thereof,
(ii) the sole consideration received shall be cash, and
(iii) either
(A) the aggregate Net Disposition Proceeds from such Disposition are paid to the Collateral Agent and applied to the prepayment of the Loans used to refinance the Aircraft pursuant to Section 3.1(a) or
(1) World Travel or the Aircraft Trustee simultaneously acquires a Replacement Aircraft which becomes subject to the Aircraft Security Agreement pursuant additional provisos that: (a) no Event of Default shall exist and be continuing at the time of such transaction, lease or sublease or would occur as a result of entering into such transaction, lease or sublease (or immediately after any renewal or extension thereof at the option of the Borrower), (b) such transaction, lease or sublease could not reasonably be expected to Section 4.7(cmaterially interfere with, or materially impair or detract from, the operation of the Project, (c) thereof,
no gaming, hotel or casino operations (2other than the operation of arcades and games for minors) may be conducted on any space that is subject to such transaction, lease or sublease other than by and for the benefit of the Loan Parties and (d) no lease or sublease may provide that a Loan Party subordinate its fee, condominium or leasehold interest to any lessee or any party financing any lessee; provided, that (x) the aggregate Net Disposition Proceeds Administrative Agent on behalf of the Lenders shall agree to provide the tenant under any such lease or sublease with a subordination, non-disturbance and attornment agreement and (y) unless the Administrative Agent shall otherwise waive such requirement, with respect to any such lease having a term of five years or more and reasonably anticipated annual rents (whether due to base rent, fixed rents, reasonably anticipated percentage rents or other reasonably anticipated rental income from such Disposition are applied lease or sublease) in excess of $500,000 (other than leases solely between Loan Parties), the applicable Loan Party(ies) shall enter into, and cause the tenant under any such lease or sublease to enter into with the acquisition Administrative Agent for the benefit of the Replacement Aircraft Lenders, a subordination, non-disturbance and attornment agreement, in each case substantially in the remaining funds required for form of Exhibit N hereto with such changes as the acquisition of Administrative Agent may approve, which approval shall not be unreasonably withheld, conditioned or delayed (provided, that such changes do not materially and adversely affect the Replacement Aircraft are obtained from only the following sources:se
Appears in 1 contract
Sources: Credit Agreement (Wynn Resorts LTD)
Limitation on Disposition of Property. Dispose of any of its Property or Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or issue or sell any shares of Capital Stock to any Person, except:
(a) the Disposition for fair market value in the ordinary course of business of obsolete or worn out Property or Property no longer useful in the business of the applicable Loan Party; provided, that either (i) with respect to Property Disposed by reason of it being no longer useful in the business of the applicable Loan Party, such Disposition could not reasonably be expected to materially adversely affect the Project, any of the Mortgaged Properties or any of the Collateral, Collateral or (ii) with respect to the extent such Property is Collateral, Disposed of by reason of its obsolescence or worn out condition prior to or promptly following such Disposition any such Property shall be replaced with other Property of (A) substantially equal or greater utility and similar use and (B) either (x) a value at least substantially equal to that of the replaced Property when first acquired or (y) substantially equal or greater quality and, if applicable, prestige and caliber as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and (iii) to the extent such Property is Collateral, the applicable Loan Party shall subject such replacement property to the Lien of the Security Documents in favor of the Lenders of at least the same priority as the Property so replaced and otherwise in compliance with the Borrower Security Agreement and the Aircraft Security Agreement, as applicablereplaced;
(b) the Disposition of Cash or Cash Equivalents or Permitted Securities (in each case in transactions otherwise permitted hereunder), Investments permitted pursuant to Section 7.8, inventory (in the ordinary course of business) and receivables (in connection with the collection thereof and otherwise as customary in gaming operations of the type conducted by the Loan Parties);
(c) Dispositions permitted by Section 7.4 (including the Disposition of Capital Stock of Loan Parties pursuant to Section 7.4(b));
(d) the sale or issuance of any Loan Party's Capital Stock (other than Disqualified Stock) to its direct parent that is a Loan Party in furtherance of Investments permitted pursuant to Section 7.8(e);
(e) Dispositions of Property having a fair market value not in excess of $5,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year following the Completion Date; provided, that (i) the consideration received for such Property assets shall be in an amount at least equal to the fair market value thereof; (ii) the sole consideration received shall be cash; and (iii) to the extent such Asset Sales relate to the Collateral, the proceeds of such Asset Sales shall be applied to either (A) the prepayment of the Loans pursuant to Section 3.1(a) or (B) the acquisition of assets which shall become a Substitute Item or Substitute Items pursuant to and in accordance with Section 4.7 of the Borrower Security Agreement;
(f) subject to Section 4.2 of the Borrower Security Agreement, the Borrower may enter into any leases with respect to any Item of Equipment, and subject to Section 4.2 of the Aircraft Security Agreement, the Aircraft Trustee, or World Travel pursuant to the Aircraft Operating Agreement, may enter into any lease with respect to the Aircraft, and Valvino may enter into any commercial office space leases with respect to the Phase II Land Building;
(g) (i) any Loan Party may dedicate space within the Project for the purpose of constructing (Ai) a mass transit system, (Bii) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicle traffic, (Ciii) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to and in furtherance of the development, construction and operation of the Project; provided, that in each case such dedication does not materially impair or interfere in the use or operation of the Project or any Loan Party or materially detract from the value of the Property subject thereto and (ii) the exchange of real property between Valvino and ▇▇▇▇▇ County, Nevada, pursuant to which each such party shall transfer to each other fee ownership in real property having approximately equal fair market values; provided, that (A) in no event shall Valvino transfer more than an aggregate amount of 40,000 square feet of real property pursuant to this clause (ii), (B) Valvino shall take such actions as required pursuant to Sections 6.10 and 7.26 of the Wynn Credit Agreement with respect to any real property acquired pursuant to this clause (ii) and (C) such exchange of real property could not reasonably be expected to materially and adversely affect or interfere with the Permitted Business of any Loan Party or have a material adverse effect on the Casino Land, the Golf Course Land or the Phase II Landthereto;
(h) (x) the Loan Parties may license trademarks and trade names in the ordinary course of business and, in any event, Wynn Resort Holdings may license to Wynn Resorts, for less than fair market value, any or all Intellectual Property in or relating to the name "Wynn Resorts" (including, without limitation, any and all Intellectual Property identified in subparts (a)(12), (a)(14)-(19), (b)(1), and (c) of Part IX of Schedule 4.9(b)) (collectively, the "Wynn Resorts IP") and (y) ▇▇▇▇ Resorts Holdings may transfer to Wynn Resorts, for less than fair market value, any or all of the Wynn Resorts IP (provided, that all of the Wynn Resorts IP shall be transferred by ▇▇▇▇ Resorts Holdings to Wynn Resorts as soon as is practicable after the Document Closing Datebusiness;
(i) the incurrence of Liens permitted under Section 7.3, provided that any leases other than those permitted pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5;
(j) the The applicable Golf Course Land Owner(s) shall be permitted to Dispose of the ▇▇▇▇ Home Site Land to ▇▇. ▇▇▇▇, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition, and (ii) such disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ concurrently consent to such Disposition;
(k) the The Golf Course Land Owner(s) shall be permitted to Dispose of the Golf Course Land and in connection therewith the applicable Loan Parties shall be permitted to Dispose of their ownership in the Capital Stock of Desert Inn Water and Desert Inn Improvement and the DIIC Water Permits (other than the DIIC Casino Water Permit), and the Lenders hereby consent to such Dispositions, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Dispositions and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(l) the The applicable Golf Course Land Owner(s) shall be permitted to Dispose of the Home Site Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(m) Valvino shall be permitted to Dispose of the Phase II Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(n) any Event of Eminent Domain, provided, that the requirements of Section 8.1 are complied with in connection therewith; and
(o) Dispositions of Items of Equipment which are replaced pursuant to Section 4.7 of the Borrower Security Agreement.
(p) the Disposition of the Existing Aircraft so long as
as (i) the consideration received for the Aircraft shall be in an amount at least equal to the fair market value thereof,
within three (ii3) the sole consideration received shall be cashBusiness Days after such Disposition, and
(iii) either
(A) the aggregate Net Disposition Proceeds from such Disposition are paid to the Collateral Agent and applied to the prepayment of the Loans used to refinance the Aircraft pursuant to Section 3.1(a) or
(1) World Travel or a trust of which World Travel is the Aircraft Trustee simultaneously beneficial interest holder acquires a the Replacement Aircraft which becomes subject to the Aircraft Security Agreement pursuant to Section 4.7(c) thereof,
Aircraft, (2ii) the aggregate Net Disposition Proceeds from such Disposition are applied to the acquisition of the Replacement Aircraft and no Loan Party applies any other amounts to such acquisition other than (x) proceeds of equity capital contributions from Wynn Resorts (or another Loan Party to the remaining funds required extent acting as an intermediary for purposes of contributing equity capital contributions from Wynn Resorts) and (y) proceeds from Advances hereunder and (iii) such Disposition of the Existing Aircraft and the acquisition of the Replacement Permitted Aircraft are obtained from only is permitted pursuant to the following sources:Other Indebtedness; and
(q) Valvino shall be permitted to effectuate the Valvino Water Permit Transfer (or any portion thereof) and DIIC shall be permitted to effectuate the DIIC Water Transfer (or any portion thereof).
Appears in 1 contract
Sources: Loan Agreement (Wynn Las Vegas LLC)
Limitation on Disposition of Property. Dispose of any of its Property or Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or issue or sell any shares of Capital Stock to any Person, except:
(a) the Disposition for fair market value in the ordinary course of business of obsolete or worn out Property or Property no longer useful in the business of the applicable Loan Party; provided, that (i) such Disposition could not reasonably be expected to materially adversely affect the Project, any of the Mortgaged Properties or any of the Collateral, (ii) to the extent such Property is Collateral, prior to such Disposition any such Property shall be replaced with other Property of (A) substantially equal or greater utility and similar use and (B) either (x) a value at least substantially equal to that of the replaced Property when first acquired or (y) substantially equal or greater quality and, if applicable, prestige and caliber as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and (iii) to the extent such Property is Collateral, the applicable Loan Party shall subject such replacement property to the Lien of the Security Documents in favor of the Lenders of at least the same priority as the Property so replaced and otherwise in compliance with the Borrower Security Agreement and the Aircraft Security Agreement, as applicableParties;
(b) the Disposition of Cash cash or Cash Equivalents or Permitted Securities (in each case in transactions otherwise permitted hereunder)cash equivalents, Investments permitted pursuant to Section 7.8, inventory (in the ordinary course of businessbusiness (other than the sale of condominiums, time shares, integral ownerships or other similar interests)) and receivables (in connection with the collection thereof and otherwise as customary in gaming operations of the type conducted by the Loan Parties);
(c) Dispositions permitted by Section 7.4 (including the Disposition of Capital Stock of Loan Parties pursuant to Section 7.4(b))7.4;
(d) the sale or issuance of any Loan Party's Capital Stock (other than Disqualified Stock) to its direct parent that is a Loan Party in furtherance of Investments permitted pursuant to Section 7.8(e)parent;
(e) Dispositions of Property having a fair market value not in excess of $5,000,000 25,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year following the Completion Phase I Opening Date; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; and (ii) the sole consideration received therefor shall be cash; and (iii) to the extent such Asset Sales relate to the Collateral, the proceeds of such Asset Sales shall be applied to either (A) the prepayment of the Loans pursuant to Section 3.1(a) at least 85% in cash or (B) the acquisition of assets which shall become a Substitute Item or Substitute Items pursuant to and in accordance with Section 4.7 of the Borrower Security Agreementcash equivalents;
(f) subject to the last paragraph of this Section 4.2 of the Borrower Security Agreement7.5, the Borrower may enter into any leases with respect to any Item of Equipment, and subject to Section 4.2 of space on or within the Aircraft Security Agreement, the Aircraft Trustee, or World Travel pursuant to the Aircraft Operating Agreement, may enter into any lease with respect to the Aircraft, and Valvino may enter into any commercial office space leases with respect to the Phase II Land BuildingProject;
(g) (i) any Loan Party may dedicate the dedication of space within the Project for the purpose or other Dispositions of Property in connection with and in furtherance of constructing (Ai) a mass transit system, (Bii) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicle vehicular traffic, (Ciii) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to and in furtherance of the development, construction and operation of the Project; provided, that (A) in each case such dedication does or other Dispositions are in furtherance of, and do not materially impair or interfere in the use or operation of operations (or intended use or operations) of, the Project or any Loan Party or materially detract from the value of the Property subject thereto and (ii) the exchange of real property between Valvino and ▇▇▇▇▇ County, Nevada, pursuant to which each such party shall transfer to each other fee ownership in real property having approximately equal fair market values; provided, that (AB) in no event shall Valvino transfer the Loan Parties in the aggregate Dispose of (other than by way of dedication to a Governmental Authority) more than an aggregate amount five acres of 40,000 square feet of real property Real Estate pursuant to this clause (iiSection 7.5(g), (B) Valvino shall take such actions as required pursuant to Sections 6.10 and 7.26 of the Wynn Credit Agreement with respect to any real property acquired pursuant to this clause (ii) and (C) such exchange of real property could not reasonably be expected to materially and adversely affect or interfere with the Permitted Business of any Loan Party or have a material adverse effect on the Casino Land, the Golf Course Land or the Phase II Land;
(h) any Loan Party may (xi) the Loan Parties may license trademarks and trademarks, trade names and other Intellectual Property in the ordinary course of business and, and not interfering in any eventmaterial respect with the ordinary conduct of the business of the Loan Parties and (ii) abandon any trademarks, Wynn Resort Holdings may license to Wynn Resorts, for less than fair market value, any trade names or all other Intellectual Property no longer useful in or relating to the name "Wynn Resorts" (including, without limitation, any and all Intellectual Property identified in subparts (a)(12), (a)(14)-(19), (b)(1), and (c) of Part IX of Schedule 4.9(b)) (collectively, the "Wynn Resorts IP") and (y) ▇▇▇▇ Resorts Holdings may transfer to Wynn Resorts, for less than fair market value, any or all business of the Wynn Resorts IP (provided, that all of the Wynn Resorts IP shall be transferred by ▇▇▇▇ Resorts Holdings to Wynn Resorts as soon as is practicable after the Document Closing DateLoan Parties;
(i) the incurrence of Liens permitted under Section 7.3; provided, provided that any leases other than those permitted pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5;
(j) Disposition of the Wynn Home Site Land to or as directed by Mr. Wynn provided that (i) ▇▇ ▇efault or Event of Default has occurr▇▇ ▇▇▇ ▇s continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) the cash purchase price paid by Mr. Wynn or his designee for the Wynn Home Site Land is in immediate▇▇ ▇▇▇▇▇able funds and equal to o▇ ▇▇eater than the fair market value of the Wynn Home Site Land, as determined in good faith by the Loan Parties, (▇ii) the Mortgaged Properties affected by the Disposition of the Wynn Home Site Land constitute separate legal parcels under Nevada R▇▇▇▇ed Statutes, Chapter 278, (iv) the Borrower shall have certified that construction of Mr. Wynn's personal residence on the Wynn Home Site could not reason▇▇▇▇ ▇▇ ▇▇pected to materially interf▇▇▇ with the use or operations of the Golf Course and could not otherwise reasonably be expected to impair the overall value of the Project, (v) appropriate reconveyance documentation in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent shall have been prepared reflecting the release of the Wynn Home Site Land from the Lien of the applicable Mortgage(s) and ▇▇▇▇ documentation shall have been recorded at the Clark County, Nevada Recorder's Office, (vi) the Borrower shall have ▇▇▇▇vered to the Administrative Agent and the Collateral Agent an endorsement, or a commitment by the Title Insurer to issue an endorsement, to the Title Policy, in either case in form and substance reasonably satisfactory to the Administrative Agent, insuring that the execution and recordation of the reconveyance documentation described in clause (v) above does not impair the Lien of the Mortgage(s) affected by such reconveyance documentation and (vii) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the Project, wells associated therewith or rights-of-way necessary for the transp▇▇▇▇▇ion of water available under such water permits to the Golf Course Land Owner(sor the water features of the Project, as the case may be, are located on the Wynn Home Site Land. Upon satisfaction of the foregoing conditions, ▇▇▇ Administrative Agent shall execute and deliver to the Loan Parties such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably requested by the Loan Parties to release the Liens granted for the benefit of the Secured Parties in the Wynn Home Site Land, and to effectuate such Disposition; provided, t▇▇▇ an instrument reasonably acceptable to the Administrative Agent is recorded against the Wynn Home Site Land to the effect that until the earlier of (x) shall be permitted to Dispose of the ▇▇▇▇osition of the Golf Course Land in accordance with Section 7.5(k) or (y) the payment in full of the Obligations, only a personal residence for Mr. Wynn will be developed on the Wynn Home Site Land, the provision▇ ▇▇ ▇▇▇h instrument to burden the ▇▇▇n Home Site Land to ▇▇. ▇▇▇▇for the benefit of the Golf Course Land;
(k) Disposition of the Golf Course Land and/or, and at the Lenders hereby consent to such Dispositionoption of the Loan Parties, on Disposition of the conditions Capital Stock of Wynn Golf; provided, that (i) no Default or Event of Default has occurred occ▇▇▇▇d and is continuing at the time of such DispositionDisposition and such Disposition is not prohibited under the other Financing Agreements, and (ii) such disposition is permitted pursuant Disposition occurs on or after the last day of the second full fiscal quarter of the Borrower occurring after the Phase II Commitment Sunset Date (if the Phase II Approval Date has not by then occurred) or the Phase II Completion Date (if the Phase II Approval Date has occurred), (iii) at the time of such Disposition, the Consolidated Leverage Ratio (calculated in accordance with Section 1.3(b)) for the period of four full consecutive fiscal quarters ending on each of the two most recent Quarterly Dates was 5.0 to 1.0 or less (provided, that, in each such case, there shall be excluded from such calculations of the Consolidated Leverage Ratio the Consolidated EBITDA, if any, derived from the Golf Course during any applicable period) and (iv) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the terms water features of the Project (other than the Golf Course), wells associated therewith or rights-of-way necessary for the transp▇▇▇▇▇ion of water available under such water permits to the water features of the Project (other than the Golf Course) are located on the Golf Course Land (or otherwise Wynn Credit Agreement Golf shall have transferred (previously or in connection with s▇▇▇ Disposition) at no cost to the ▇Borrower such easements as are necessary for the Borrower to access such Points of Diversion, own and operate such wells and transport such water to the water features of the Project ▇▇▇ ▇▇▇▇▇ concurrently consent he Borrower shall have taken all actions required pursuant to Section 6.10 with respect to any Property thereby acquired). Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the applicable Loan Parties such Disposition;
(k) documents and instruments, including UCC-3 termination statements, deeds of reconveyance and certificates of Capital Stock, all as may be reasonably requested by the Golf Course Land Owner(s) shall be permitted Loan Parties to Dispose release the Liens granted for the benefit of the Secured Parties in the Golf Course Land and in connection therewith the applicable Loan Parties shall be permitted Wynn Golf and to Dispose of their ownership in the Capital Stock of Desert Inn Water and Desert Inn Improvement and the DIIC Water Permits (other than the DIIC Casino Water Permit), and the Lenders hereby consent to such Dispositions, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Dispositions and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to effectuate such Disposition;
(l) the applicable Golf Course Land Owner(s) shall be permitted to Dispose ▇▇▇position of the Home Site Land, and the Lenders hereby consent to such Disposition, on the conditions ; provided that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) such Disposition is occurs on or after the last day of the fourth full fiscal quarter of the Borrower occurring after the Phase II Commitment Sunset Date (if the Phase II Approval Date has not by then occurred) or the Phase II Completion Date (if the Phase II Approval Date has occurred), (iii) at the time of such Disposition, the Consolidated EBITDA of the Borrower for the most recent period of four full consecutive fiscal quarters of the Borrower was equal to or greater than $325,000,000, (iv) the Mortgaged Properties (other than the Home Site Land) affected by the Disposition of the Home Site Land constitute separate legal parcels under Nevada Revised Statutes, Chapter 278, (v) the Borrower shall have certified that construction of permitted pursuant improvements on the Home Site Land could not reasonably be expected to materially interfere with the use or operations of the Golf Course and could not otherwise reasonably be expected to materially impair the overall value of the Project, (vi) appropriate reconveyance documentation in form and substance reasonably satisfactory to the terms Administrative Agent and the Collateral Agent shall have been prepared reflecting the release of the Home Site Land from the Lien of the applicable Mortgage(s) and such documentation shall have been recorded at the Clark County, Nevada Recorder's Office, (vii) the Borrower shall hav▇ ▇▇▇ivered to the Administrative Agent and the Collateral Agent an endorsement, or a commitment by the Title Insurer to issue an endorsement, to the Title Policy, in either case in form and substance reasonably satisfactory to the Administrative Agent, insuring that the execution and recordation of the reconveyance documentation described in clause (vi) above does not impair the Lien of the Mortgage(s) affected by such reconveyance documentation and (viii) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the water features of the Project or the Golf Course, wells associated therewith or rights-of-way necessary for the transp▇▇▇▇▇ion of water available under such water permits to the Golf Course Land or the water features of the Project, as the case may be, are located on the Home Site Land (or otherwise Wynn Credit Agreement Golf shall have transferred or reserved for the benefit of the ▇▇▇▇ Course Land (previously or in connection with such Disposition) at no cost to the Loan Parties such easements as are necessary for the Loan Parties to access such Points of Diversion, own and operate such wells and transport such water to the water features of the Project ▇▇▇/▇▇ otherwise concurrently consent r the Golf Course and the Loan Parties shall have taken all actions required pursuant to Section 6.10 with respect to any Property thereby acquired). Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the Loan Parties such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably requested by the Loan Parties to release the Liens for the benefit of the Secured Parties in the Home Site Land, and to effectuate such Disposition; provided, that an instrument reasonably acceptable to the Administrative Agent is recorded against the Home Site Land to the effect that until the earlier of (x) the Disposition of the Golf Course Land in accordance with Section 7.5(k) or (y) the payment in full of the Obligations, only residential housing and other non-gaming related developments will be developed on the Home Site Land, the provisions of such instrument to burden the Home Site Land for the benefit of the Golf Course Land;
(m) Valvino Dispositions of all or a portion of the Koval Land; provided that (i) any such Disposition shall be permitted to Dispose in furth▇▇▇▇▇e of the Phase II Landdevelopment, construction and operation of the Lenders hereby consent Project (including, without limitation, the construction, development and operation of employee parking facilities and other ancillary facilities) on the Koval Land and/or on adjacent Property acquired or to be acquired by ▇▇▇ Loan Party pursuant to the transaction or series of transactions related to such Disposition, on (ii) any such Disposition shall be at fair market value (after taking into consideration any cash and non-cash consideration received for such Disposition from any transaction or series of transactions related to such Disposition), (iii) any Net Cash Proceeds of any such Disposition that are not reinvested or otherwise utilized in furtherance of the conditions that matters described in clause (i) no Default or Event of Default has occurred and is continuing at the time of above within 360 days after such Disposition shall be deemed Net Cash Proceeds and shall be required to be applied to the prepayment of the Obligations in accordance with Section 2.12(b) (without any right of reinvestment thereunder) and (iiiv) such Disposition is permitted the Loan Parties shall have taken all actions required pursuant to the terms Section 6.10 with respect to any Property acquired in connection with any transaction or series of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent transactions related to any such Disposition;
(n) any Event of Eminent Domain, ; provided, that the requirements of Section 8.1 are complied Loan Parties otherwise comply with in connection therewithSections 2.12(c) and 2.24, as applicable; and
(o) Dispositions by any Loan Party to any other Loan Party (other than Capital Corp. or Wynn Golf (except with respect to Dispositions, the proceeds of Items whic▇ ▇▇e necessary for the organizational maintenance of Equipment which are replaced Capital Corp. or Wynn Golf); provided, that in each case each Loan Party shall have t▇▇▇▇ all actions required pursuant to Section 4.7 6.10 with respect to any Property acquired by it pursuant to this clause (o); Notwithstanding the foregoing provisions of the Borrower Security Agreement.
this Section 7.5, subsection (pf) the Disposition of the Aircraft so long as
(i) the consideration received for the Aircraft above shall be in an amount at least equal to the fair market value thereof,
(ii) the sole consideration received shall be cash, and
(iii) either
(A) the aggregate Net Disposition Proceeds from such Disposition are paid to the Collateral Agent and applied to the prepayment of the Loans used to refinance the Aircraft pursuant to Section 3.1(a) or
(1) World Travel or the Aircraft Trustee simultaneously acquires a Replacement Aircraft which becomes subject to the Aircraft Security Agreement pursuant additional provisos that: (a) no Event of Default shall exist and be continuing at the time of such transaction, lease or sublease or would occur as a result of entering into such transaction, lease or sublease (or immediately after any renewal or extension thereof at the option of the Borrower), (b) such transaction, lease or sublease could not reasonably be expected to Section 4.7(cmaterially interfere with, or materially impair or detract from, the operation of the Project, (c) thereof,
no gaming, hotel or casino operations (2other than the operation of arcades and games for minors) may be conducted on any space that is subject to such transaction, lease or sublease other than by and for the benefit of the Loan Parties and (d) no lease or sublease may provide that a Loan Party subordinate its fee, condominium or leasehold interest to any lessee or any party financing any lessee; provided, that (x) the aggregate Net Disposition Proceeds Administrative Agent on behalf of the Lenders shall agree to provide the tenant under any such lease or sublease with a subordination, non-disturbance and attornment agreement and (y) unless the Administrative Agent shall otherwise waive such requirement, with respect to any such lease having a term of five years or more and reasonably anticipated annual rents (whether due to base rent, fixed rents, reasonably anticipated percentage rents or other reasonably anticipated rental income from such Disposition are applied lease or sublease) in excess of $500,000 (other than leases solely between Loan Parties), the applicable Loan Party(ies) shall enter into, and cause the tenant under any such lease or sublease to enter into with the acquisition Administrative Agent for the benefit of the Replacement Aircraft Lenders, a subordination, non-disturbance and attornment agreement, in each case substantially in the remaining funds required for form of Exhibit N hereto with such changes as the acquisition of the Replacement Aircraft are obtained from only the following sources:Administrative Agent may approve, which approval shall not be unreasonably withheld, conditioned or delayed (provided, that such
Appears in 1 contract
Sources: Credit Agreement (Wynn Resorts LTD)
Limitation on Disposition of Property. Dispose of any of its Property or Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or issue or sell any shares of Capital Stock to any Person, except:
(a) the Disposition for fair market value in the ordinary course of business of obsolete or worn out Property or Property no longer useful in the business of the applicable Loan PartyBorrower; provided, that either (i) such Disposition could not reasonably be expected to materially adversely affect the ProjectPhase II Land, any of the Mortgaged Properties Phase II Additions or any of the Collateral, other Collateral or (ii) with respect to the extent such Property is CollateralDisposed of by reason of its obsolescence or worn out condition, prior to or promptly following such Disposition any such Property shall be replaced with other Property of (A) substantially equal or greater utility and similar use and (B) either (x) a value at least substantially equal to that of the replaced Property when first acquired or (y) substantially equal or greater quality and, if applicable, prestige and caliber as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and (iii) to the extent such Property is Collateral, the applicable Loan Party Borrower shall promptly subject such replacement property to the Lien of the Security Documents in favor of the Lenders of at least the same priority as the Property so replaced and otherwise in compliance with the Borrower Security Agreement and the Aircraft Security Agreement, as applicablereplaced;
(b) the Disposition of Cash cash or Cash Equivalents or Permitted Securities (in each case in transactions otherwise permitted hereunder), Investments permitted pursuant to Section 7.8, inventory (in the ordinary course of business) and receivables (in connection with the collection thereof and otherwise as customary in gaming operations business of the type conducted by the Loan PartiesBorrower);
(c) Dispositions permitted by Section 7.4 (including the Disposition of Capital Stock of Loan Parties pursuant to Section 7.4(b));
(d) the sale or issuance of any Loan Party's Capital Stock (other than Disqualified Stock) to its direct parent that is a Loan Party in furtherance of Investments permitted pursuant to Section 7.8(e);
(e) Dispositions of Property having a fair market value not in excess of $5,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year following the Completion Date; provided, that (i) the consideration received for such Property shall be in an amount at least equal subject to the fair market value thereof; (ii) the sole consideration received shall be cash; and (iii) to the extent such Asset Sales relate to the Collateral, the proceeds last paragraph of such Asset Sales shall be applied to either (A) the prepayment of the Loans pursuant to this Section 3.1(a) or (B) the acquisition of assets which shall become a Substitute Item or Substitute Items pursuant to and in accordance with Section 4.7 of the Borrower Security Agreement;
(f) subject to Section 4.2 of the Borrower Security Agreement6.4, the Borrower may enter into any leases with respect to any Item of Equipment, and subject to Section 4.2 of the Aircraft Security Agreement, the Aircraft Trustee, space on or World Travel pursuant to the Aircraft Operating Agreement, may enter into any lease with respect to the Aircraft, and Valvino may enter into any commercial office space leases with respect to the Phase II Land Building;
(g) (i) any Loan Party may dedicate space within the Project for the purpose of constructing (A) a mass transit system, (B) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicle traffic, (C) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to and in furtherance of the development, construction and operation of the Project; provided, that in each case such dedication does not materially impair or interfere in the use or operation of the Project or any Loan Party or materially detract from the value of the Property subject thereto and (ii) the exchange of real property between Valvino and ▇▇▇▇▇ County, Nevada, pursuant to which each such party shall transfer to each other fee ownership in real property having approximately equal fair market values; provided, that (A) in no event shall Valvino transfer more than an aggregate amount of 40,000 square feet of real property pursuant to this clause (ii), (B) Valvino shall take such actions as required pursuant to Sections 6.10 and 7.26 of the Wynn Credit Agreement with respect to any real property acquired pursuant to this clause (ii) and (C) such exchange of real property could not reasonably be expected to materially and adversely affect or interfere with the Permitted Business of any Loan Party or have a material adverse effect on the Casino Land, the Golf Course Land or the Phase II Land;
(h) (xd) the Loan Parties Borrower may license trademarks and trade names in the ordinary course of business and, in any event, Wynn Resort Holdings may license to Wynn Resorts, for less than fair market value, any or all Intellectual Property in or relating to the name "Wynn Resorts" (including, without limitation, any and all Intellectual Property identified in subparts (a)(12), (a)(14)-(19), (b)(1), and (c) of Part IX of Schedule 4.9(b)) (collectively, the "Wynn Resorts IP") and (y) ▇▇▇▇ Resorts Holdings may transfer to Wynn Resorts, for less than fair market value, any or all of the Wynn Resorts IP (provided, that all of the Wynn Resorts IP shall be transferred by ▇▇▇▇ Resorts Holdings to Wynn Resorts as soon as is practicable after the Document Closing Datebusiness;
(ie) the incurrence of Liens permitted under Section 7.36.2; provided, provided that any leases other than those permitted pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (fc) above and the last paragraph of this Section 7.56.4;
(jf) the applicable Golf Course Land Owner(sBorrower may terminate the driving range lease, the office building lease, the parking facility lease and/or the art gallery lease described in clauses (a), (b), (c) shall be permitted to Dispose and (d) of definition of "Affiliate Lease and Easement Agreements" and that certain easement granted by the Chamber of Commerce recorded on August 23, 2002 in Book 20020823 as Document No. 1700, in the Official Records of Clark County; and
(g) any condemnation or other eminen▇ ▇▇▇▇ Home Site Land ain proceeding by any Governmental Authority; provided, that the requirements of Section 2.6(b) are complied with in connection therewith. Notwithstanding the foregoing provisions of this Section 6.4, subsection (c) above shall be subject to ▇▇. ▇▇▇▇, and the Lenders hereby consent to such Disposition, on the conditions that additional provisos that: (ia) no Default or Event of Default has occurred shall exist and is be continuing at the time of such Dispositiontransaction, and lease or sublease or would occur after as a result of entering into such transaction, lease or sublease (iior immediately after any renewal or extension thereof at the option of the Borrower), (b) such disposition is permitted pursuant transaction, lease or sublease could not reasonably be expected to materially interfere with, impair or detract from the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ concurrently consent to such Disposition;
(k) the Golf Course Land Owner(s) shall be permitted to Dispose of the Golf Course Land and in connection therewith the applicable Loan Parties shall be permitted to Dispose of their ownership in the Capital Stock of Desert Inn Water and Desert Inn Improvement and the DIIC Water Permits (other than the DIIC Casino Water Permit), and the Lenders hereby consent to such Dispositions, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Dispositions and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(l) the applicable Golf Course Land Owner(s) shall be permitted to Dispose of the Home Site Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(m) Valvino shall be permitted to Dispose value of the Phase II Land, and Land or the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms operation of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(n) any Event of Eminent Domain, provided, that the requirements of Section 8.1 are complied with in connection therewith; and
(o) Dispositions of Items of Equipment which are replaced pursuant to Section 4.7 business of the Borrower Security Agreement.
or the Phase II Additions, (pc) the Disposition such transaction, lease or sublease is at a fair market rent or value (in light of the Aircraft so long as
(i) the consideration received other similar or comparable prevailing commercial transactions), except for the Aircraft shall be leases between the Borrower and WLV in an amount at least equal effect on the Closing Date, and contains such other terms such that the lease, taken as a whole, is commercially reasonable and fair to the fair market value thereof,
Borrower in light of prevailing or comparable transactions in other casinos, hotels, hotel attractions, shopping venues or similarly situated buildings, as applicable, (iid) no gaming, hotel or casino operations may be conducted on any space that is subject to such transaction, lease or sublease during the sole consideration received shall be cashterm of this Agreement, and
(iiie) either
no lease or sublease may provide that the Borrower may subordinate its fee, condominium or leasehold interest to any lessee or any party financing any lessee, and (Af) the aggregate Net Disposition Proceeds from such Disposition are paid lease or sublease is expressly subordinated to the Collateral Agent and applied to Secured Parties' interests under the prepayment Deed of the Loans used to refinance the Aircraft pursuant to Section 3.1(a) or
(1) World Travel or the Aircraft Trustee simultaneously acquires a Replacement Aircraft which becomes subject to the Aircraft Security Agreement pursuant to Section 4.7(c) thereof,
(2) the aggregate Net Disposition Proceeds from such Disposition are applied to the acquisition of the Replacement Aircraft and the remaining funds required for the acquisition of the Replacement Aircraft are obtained from only the following sources:Trust.
Appears in 1 contract
Sources: Credit Agreement (Wynn Resorts LTD)
Limitation on Disposition of Property. Dispose of any of its Property or Property (including, without limitation, receivables and leasehold interests)Property, whether now owned or hereafter acquired, or or, in the case of any Class I Restricted Subsidiary, issue or sell any shares of such Class I Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition for fair market value of obsolete, surplus or worn out property in the ordinary course of business, including the sale of parcels of real property adjacent to parcels being used in the Borrower’s or any Class I Restricted Subsidiary’s business, which adjacent parcels are not necessary in the business of the Borrower or such Class I Restricted Subsidiary;
(i) the Disposition of inventory in the ordinary course of business of obsolete or worn out Property or Property no longer useful in the business of the applicable Loan Party; provided, that (i) such Disposition could not reasonably be expected to materially adversely affect the Project, any of the Mortgaged Properties or any of the Collateral, and (ii) to the extent such Property is Collateralgranting of leases, prior to such Disposition any such Property shall be replaced with other Property licenses, subleases and sublicenses of real and personal property (Aincluding Intellectual Property) substantially equal or greater utility and similar use and (B) either (x) a value at least substantially equal to that of the replaced Property when first acquired or (y) substantially equal or greater quality and, if applicable, prestige and caliber as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and (iii) to the extent such Property is Collateral, the applicable Loan Party shall subject such replacement property to the Lien of the Security Documents in favor of the Lenders of at least the same priority as the Property so replaced and otherwise in compliance with the Borrower Security Agreement and the Aircraft Security Agreement, as applicable;
(b) the Disposition of Cash or Cash Equivalents or Permitted Securities (in each case in transactions otherwise permitted hereunder), Investments permitted pursuant to Section 7.8, inventory (in the ordinary course of business) business and receivables (in connection which do not materially interfere with the collection thereof and otherwise as customary in gaming operations business of the type conducted by the Loan Parties)Borrower and its Subsidiaries;
(c) Dispositions permitted by Section 7.4 7.4(a), (including the Disposition of Capital Stock of Loan Parties pursuant to Section 7.4(b))b) and (d) and Sections 7.6 and 7.8;
(d) the Disposition of any Property to, or the sale or issuance of any Loan Party's Subsidiary’s Capital Stock (other than Disqualified Stock) to its direct parent that is a Loan Party in furtherance of Investments permitted pursuant to Section 7.8(e)to, the Borrower or any Subsidiary Guarantor;
(e) any Recovery Event;
(f) an exchange or “swap” of fixed, tangible assets of the Borrower or any of its Class I Restricted Subsidiaries for the assets of a Person other than the Borrower and its Class I Restricted Subsidiaries; provided that, (i) the assets received by the Borrower or such Class I Restricted Subsidiary will be used or useful in a similar line of business that the Borrower and its Class I Restricted Subsidiaries are engaged in on the date of this Agreement or that are reasonably related thereto, (ii) the Borrower or such Class I Restricted Subsidiary receives reasonably equivalent value for such assets, such equivalent value to be demonstrated to the reasonable satisfaction of the Administrative Agent (or, in the case of an exchange or “swap” with a non-Affiliate of any Loan Party, as determined by the board of directors of the Borrower or such Class I Restricted Subsidiary, as the case may be) and (iii) if the asset which is the subject of such exchange or “swap” constituted Collateral hereunder, the Borrower or such Class I Restricted Subsidiary shall take such action necessary to create and perfect the security interest of the Administrative Agent for the benefit of the Secured Parties in the assets received by the Borrower or such Class I Subsidiary in such exchange or “swap” pursuant to Section 6.9, provided further that, the fair market value of all such assets exchanged or “swapped” shall not exceed $150,000,000 during the term of this Agreement;
(g) the issuance and sale of directors’ qualifying shares and shares required by applicable law to be held by a Person other than the Borrower or its Class I Restricted Subsidiaries;
(h) the issuance and sale of minority interests in joint ventures, partnerships and other entities to third parties to the extent that the proceeds of such sale are reinvested in the related joint venture, partnership or other entity;
(i) any sale and leaseback transaction permitted by Section 7.11;
(j) a sale or other Disposition of the type described in EITF 97-10 in connection with a sale and leaseback transaction otherwise permitted hereby;
(k) the Disposition of any real property subject to a sale contract on the Closing Date as described on Schedule 7.5(k);
(l) the Disposition of the Borrower’s or any Class I Restricted Subsidiary’s minority interest in National CineMedia, LLC, NCM Holdings or any holding company holding any such interest and the subsequent Disposition of any consideration received pursuant to such Disposition; provided that the Net Cash Proceeds of such Disposition are applied toward prepayment of the Loans to the extent required by Section 2.10(c);
(m) the Disposition of cash and Cash Equivalents permitted under this Agreement;
(n) Dispositions of Property pursuant to contracts between the Borrower and the U.S. Department of Justice related to the Acquisition up to the amount set forth in Section 6.3(d) of the Acquisition Agreement as in effect on the date of execution thereof; and
(o) the Disposition of other assets having a fair market value not in excess of to exceed $5,000,000 in 500,000,000 during the aggregate (with respect to all the Loan Parties) in any Fiscal Year following the Completion Date; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; (ii) the sole consideration received shall be cash; and (iii) to the extent such Asset Sales relate to the Collateral, the proceeds of such Asset Sales shall be applied to either (A) the prepayment of the Loans pursuant to Section 3.1(a) or (B) the acquisition of assets which shall become a Substitute Item or Substitute Items pursuant to and in accordance with Section 4.7 of the Borrower Security Agreement;
(f) subject to Section 4.2 of the Borrower Security Agreement, the Borrower may enter into any leases with respect to any Item of Equipment, and subject to Section 4.2 of the Aircraft Security Agreement, the Aircraft Trustee, or World Travel pursuant to the Aircraft Operating Agreement, may enter into any lease with respect to the Aircraft, and Valvino may enter into any commercial office space leases with respect to the Phase II Land Building;
(g) (i) any Loan Party may dedicate space within the Project for the purpose of constructing (A) a mass transit system, (B) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicle traffic, (C) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to and in furtherance of the development, construction and operation of the Project; provided, that in each case such dedication does not materially impair or interfere in the use or operation of the Project or any Loan Party or materially detract from the value of the Property subject thereto and (ii) the exchange of real property between Valvino and ▇▇▇▇▇ County, Nevada, pursuant to which each such party shall transfer to each other fee ownership in real property having approximately equal fair market values; provided, that (A) in no event shall Valvino transfer more than an aggregate amount of 40,000 square feet of real property pursuant to this clause (ii), (B) Valvino shall take such actions as required pursuant to Sections 6.10 and 7.26 of the Wynn Credit Agreement with respect to any real property acquired pursuant to this clause (ii) and (C) such exchange of real property could not reasonably be expected to materially and adversely affect or interfere with the Permitted Business of any Loan Party or have a material adverse effect on the Casino Land, the Golf Course Land or the Phase II Land;
(h) (x) the Loan Parties may license trademarks and trade names in the ordinary course of business and, in any event, Wynn Resort Holdings may license to Wynn Resorts, for less than fair market value, any or all Intellectual Property in or relating to the name "Wynn Resorts" (including, without limitation, any and all Intellectual Property identified in subparts (a)(12), (a)(14)-(19), (b)(1), and (c) of Part IX of Schedule 4.9(b)) (collectively, the "Wynn Resorts IP") and (y) ▇▇▇▇ Resorts Holdings may transfer to Wynn Resorts, for less than fair market value, any or all of the Wynn Resorts IP (provided, that all of the Wynn Resorts IP shall be transferred by ▇▇▇▇ Resorts Holdings to Wynn Resorts as soon as is practicable after the Document Closing Date;
(i) the incurrence of Liens permitted under Section 7.3, provided that any leases other than those permitted pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph term of this Section 7.5;
(j) the applicable Golf Course Land Owner(s) shall be permitted to Dispose of the ▇▇▇▇ Home Site Land to ▇▇. ▇▇▇▇, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition, and (ii) such disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ concurrently consent to such Disposition;
(k) the Golf Course Land Owner(s) shall be permitted to Dispose of the Golf Course Land and in connection therewith the applicable Loan Parties shall be permitted to Dispose of their ownership in the Capital Stock of Desert Inn Water and Desert Inn Improvement and the DIIC Water Permits (other than the DIIC Casino Water Permit), and the Lenders hereby consent to such Dispositions, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Dispositions and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(l) the applicable Golf Course Land Owner(s) shall be permitted to Dispose of the Home Site Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(m) Valvino shall be permitted to Dispose of the Phase II Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(n) any Event of Eminent Domain, provided, that the requirements of Section 8.1 are complied with in connection therewith; and
(o) Dispositions of Items of Equipment which are replaced pursuant to Section 4.7 of the Borrower Security Agreement.
(p) the Disposition of the Aircraft so long as
(i) the consideration received for the Aircraft shall be in an amount at least equal to the fair market value thereof,
(ii) the sole consideration received shall be cash, and
(iii) either
(A) the aggregate Net Disposition Proceeds from such Disposition are paid to the Collateral Agent and applied to the prepayment of the Loans used to refinance the Aircraft pursuant to Section 3.1(a) or
(1) World Travel or the Aircraft Trustee simultaneously acquires a Replacement Aircraft which becomes subject to the Aircraft Security Agreement pursuant to Section 4.7(c) thereof,
(2) the aggregate Net Disposition Proceeds from such Disposition are applied to the acquisition of the Replacement Aircraft and the remaining funds required for the acquisition of the Replacement Aircraft are obtained from only the following sources:
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property or Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or issue or sell any shares of Capital Stock to any Person, except:
(a) the Disposition for fair market value in the ordinary course of business of obsolete or worn out Property or Property no longer useful in the business of the applicable Loan Party; provided, that either (i) such Disposition could not reasonably be expected to materially adversely affect the Project, any of the Mortgaged Properties or any of the Collateral, other Collateral or (ii) with respect to the extent such Property is CollateralDisposed of by reason of its obsolescence or worn out condition, prior to or promptly following such Disposition any such Property shall be replaced with other Property of (A) substantially equal or greater utility and similar use and (B) either (x) a value at least substantially equal to that of the replaced Property when first acquired or (y) substantially equal or greater quality and, if applicable, prestige and caliber as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and (iii) to the extent such Property is Collateral, the applicable Loan Party shall promptly subject such replacement property to the Lien of the Security Documents in favor of the Lenders of at least the same priority as the Property so replaced and otherwise in compliance with the Borrower Security Agreement and the Aircraft Security Agreement, as applicablereplaced;
(b) the Disposition of Cash or Cash Equivalents or Permitted Securities (in each case in transactions otherwise permitted hereunder), Investments permitted pursuant to Section 7.8, inventory (in the ordinary course of business) and receivables (in connection with the collection thereof and otherwise as customary in gaming operations of the type conducted by the Loan Parties);
(c) Dispositions permitted by Section 7.4 (including the Disposition of Capital Stock of Loan Parties pursuant to Section 7.4(b));
(d) the sale or issuance of any Loan Party's Capital Stock (other than Disqualified Stock) to its direct parent that is a Loan Party in furtherance of consideration for Investments permitted pursuant to Section 7.8(e);
(e) Dispositions of Property having a fair market value not in excess of $5,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year following the Completion Date; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; and (ii) the sole consideration received shall be cash; and (iii) to the extent such Asset Sales relate to the Collateral, the proceeds of such Asset Sales shall be applied to either (A) the prepayment of the Loans pursuant to Section 3.1(a) or (B) the acquisition of assets which shall become a Substitute Item or Substitute Items pursuant to and in accordance with Section 4.7 of the Borrower Security Agreement;
(f) subject to the last paragraph of this Section 4.2 of the Borrower Security Agreement7.5, the Borrower may enter into any leases with respect to any Item of Equipment, space on or within the Project and subject to Section 4.2 of the Aircraft Security Agreement, the Aircraft Trustee, or World Travel pursuant to the Aircraft Operating Agreement, may enter into any lease subleases with respect to the Aircraft, and Valvino may enter into any commercial office space leases with respect to in the Phase II Land Building;
(g) (ix) any Loan Party may dedicate space within the Project for the purpose of constructing (Ai) a mass transit system, (Bii) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicle traffic, (Ciii) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to and in furtherance of the development, construction and operation of the Project; provided, that in each case such dedication does not materially impair or interfere in the use or operation operations of the Project or any Loan Party or materially detract from the value of the Property subject thereto and (iiy) the exchange of real property between Valvino and ▇▇▇▇▇ County, Nevada, pursuant to which each such party shall transfer to each other fee ownership in real property having approximately equal fair market values; provided, that (AI) in no event shall Valvino transfer more than an aggregate amount of 40,000 square feet of real property pursuant to this clause (iiy), (BII) Valvino shall take such actions as required pursuant to Sections 6.10 and 7.26 of the Wynn Credit Agreement with respect to any real property acquired pursuant to this clause (iiy) and (CIII) such exchange of real property could not reasonably be expected to materially and adversely affect or interfere with the Permitted Business of any Loan Party or have a material adverse effect on the Casino Land, the Golf Course Land or the Phase II Land;
(h) (x) the Loan Parties may license trademarks and trade names in the ordinary course of business and, in any event, Wynn Resort Holdings may license to Wynn Resorts, for less than fair market value, any or all Intellectual Property in or relating to the name "Wynn Resorts" (including, without limitation, any and all Intellectual Property identified in subparts (a)(12), (a)(14)-(19), (b)(1), and (c) of Part IX of Schedule 4.9(b)) (collectively, the "Wynn Resorts IP") and (y) ▇▇▇▇ Resorts Holdings may transfer to Wynn Resorts, for less than fair market value, any or all of the Wynn Resorts IP (provided, that all of the Wynn Resorts IP shall be transferred by ▇▇▇▇ Resorts Holdings to Wynn Resorts as soon as is practicable after the Document Closing Date);
(i) the incurrence of Liens permitted under Section 7.3; provided, provided that any leases other than those permitted pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5;
(j) the applicable Golf Course Land Owner(s) shall be permitted to Dispose of the ▇▇▇▇ Home Site Land to ▇▇. ▇▇▇▇, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such DispositionDisposition and such Disposition is permitted under the other Financing Agreements, and (ii) the cash purchase price paid by ▇▇. ▇▇▇▇ to such disposition is permitted pursuant to the terms of the Wynn Credit Agreement or Golf Course Land Owner(s) for the ▇▇▇▇ Home Site Land is in immediately available funds and equal to or greater than the fair market value of the ▇▇▇▇ Home Site Land, as determined in good faith by such Golf Course Land Owner(s), (iii) such Golf Course Land Owner(s) contributes the entire amount of the purchase price paid by ▇▇. ▇▇▇▇ for the ▇▇▇▇ Home Site Land to the Borrower as a common equity capital contribution, (iv) the Mortgaged Properties affected by the Disposition of the ▇▇▇▇ Home Site Land constitute separate legal parcels under Nevada Revised Statutes, Chapter 278, (v) the Borrower shall have certified and demonstrated to the Initial Arrangers, to the reasonable satisfaction of the Initial Arrangers, that construction of ▇▇. ▇▇▇▇'▇ personal residence on the ▇▇▇▇ Home Site will not interfere with the use or operations of the Golf Course and could not otherwise reasonably be expected to impair the overall value of the Project, (vi) the applicable Mortgages with respect to the Golf Course Land shall have been amended to reflect the exclusion of the legal description of the ▇▇▇▇ Home Site Land (or applicable portion thereof) as a result of the transfer of fee ownership therein and re-recorded at the ▇▇▇▇▇ concurrently consent County, Nevada Recorder's Office, (vii) the Borrower shall have delivered to the Administrative Agent: (A) (1) a legal opinion from counsel reasonably acceptable to the Administrative Agent to the effect that the Mortgages with respect to the Golf Course Land, to the extent amended and re-recorded pursuant to subsection (vi) above, are enforceable in accordance with their respective terms and are effective to create the security interests described therein and (2) such other legal opinions as the Administrative Agent may reasonably request, each in form and substance reasonably satisfactory to the Administrative Agent, and (B) endorsements, or commitments by the Title Insurer to issue endorsements, to the Title Policy, in each case in form and substance satisfactory to the Administrative Agent, insuring the continuing perfection and priority of the respective Liens on the Golf Course Land (after giving effect to the release of the ▇▇▇▇ Home Site Land and the amendments and re-recordations contemplated by subsection (vi) above) and (viii) (A) either (x) no Points of Diversion with respect to the Water Permits, ▇▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under the Water Permits to the Golf Course Land or the water features of the Le Rêve hotel and casino, as the case may be, are located on the Wynn Home Site Land or (y) the applicable Golf Course Land Owner(s) shall have transferred at no cost to the Borrower and/or ▇▇▇▇ Resorts Holdings, as the case may be, (I) in the case of Points of Diversion and associated ▇▇▇▇▇ with respect to the Valvino Water Permits or the DIIC Casino Water Permit, and rights-of-way necessary for the transportation of water available under such Water Permits to the water features of the Le Rêve hotel and casino, such easements to the Borrower as are necessary for the Borrower to access such Points of Diversion, own and operate such ▇▇▇▇▇ and transport such water to the water features of the Le Rêve hotel and casino and (II) in the case of Points of Diversion and associated ▇▇▇▇▇ with respect to all other DIIC Water Permits, and rights-of-way necessary for the transportation of water available under such Water Permits to the Golf Course Land, such easements to the Borrower and ▇▇▇▇ Resorts Holdings as are necessary for such Persons to access such Points of Diversion, own and operate such ▇▇▇▇▇ and transport such water to the Golf Course Land and (B) the Borrower and ▇▇▇▇ Resorts Holdings, as the case may be, shall have taken all actions required pursuant to Section 6.10 with respect to any Property acquired pursuant to clause (viii)(A) above. Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the appropriate Golf Course Land Owners such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably necessary to release the Liens granted to the Lenders in the ▇▇▇▇ Home Site Land, and to permit such Disposition; provided, that an instrument reasonably acceptable to the Administrative Agent is recorded against the ▇▇▇▇ Home Site Land to the effect that until the earlier of (x) the Disposition of the Golf Course Land in accordance with Section 7.5(k) or (y) the payment in full of the Obligations, only a personal residence for ▇▇. ▇▇▇▇ will be developed on the ▇▇▇▇ Home Site Land, the provisions of such instrument to burden the ▇▇▇▇ Home Site Land for the benefit of the Golf Course Land;
(k) the Golf Course Land Owner(s) Owners shall be permitted to Dispose of the Golf Course Land and in connection therewith the applicable Loan Parties shall be permitted to Dispose of their ownership in the Capital Stock of Desert Inn Water and Desert Inn Improvement and the DIIC Water Permits (other than the DIIC Casino Water Permit), and the Lenders hereby consent to such Dispositions, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Dispositions and are permitted under the other Financing Agreements, (ii) such Disposition is permitted pursuant to Dispositions occur on or after the terms third anniversary of the Wynn Credit Agreement Opening Date, (iii) at the time of such Dispositions, the Consolidated Leverage Ratio of the Borrower for the most recent period of four full consecutive fiscal quarters of the Borrower was 3.0 to 1.0 or less (provided, that there shall be excluded from the calculation of the Consolidated Leverage Ratio the Consolidated EBITDA, if any, derived from the Golf Course for such four full consecutive fiscal quarters), (iv) after giving effect to such Dispositions, the senior secured long-term Indebtedness under the Facilities shall be rated at least Ba1 by ▇▇▇▇▇'▇ and BB+ by S&P and (v) (A) either (x) no Points of Diversion with respect to the Valvino Water Permits or the DIIC Casino Water Permit, ▇▇▇▇▇ otherwise concurrently consent associated therewith or rights-of-way necessary for the transportation of water available under such Water Permits to the water features of the Le Rêve hotel and casino are located on the Golf Course Land or (y) the applicable Golf Course Land Owner(s) shall have transferred at no cost to the Loan Parties such Dispositioneasements to the Borrower as are necessary for the Borrower to access such Points of Diversion, own and operate such ▇▇▇▇▇ and transport such water to the water features of the Le Rêve hotel and casino and (B) the Borrower shall have taken all actions required pursuant to Section 6.10 with respect to any Property acquired pursuant to clause (v)(A) above. Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the applicable Loan Parties such documents and instruments, including UCC-3 termination statements, deeds of reconveyance and certificates of Capital Stock, all as may be reasonably necessary to release the Liens granted to the Lenders in the Golf Course Land, Desert Inn Water, Desert Inn Improvement and the DIIC Water Permits (other than the DIIC Casino Water Permit) (including, without limitation all Capital Stock of Desert Inn Water, and Desert Inn Improvement and Property of Desert Inn Water and Desert Inn Improvement) and to permit such Dispositions;
(l) the applicable Golf Course Land Owner(s) Owners shall be permitted to Dispose of the Home Site Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted under the other Financing Agreements, (ii) at the time of such
(1) a legal opinion from counsel reasonably acceptable to the Administrative Agent to the effect that the Mortgages with respect to the Golf Course Land, to the extent amended and re-recorded pursuant to subsection (v) above, are enforceable in accordance with their respective terms and are effective to create the terms security interests described therein and (2) such other legal opinions as the Administrative Agent may reasonably request, each in form and substance reasonably satisfactory to the Administrative Agent, and (B) endorsements, or commitments by the Title Insurer to issue endorsements, to the Title Policy, in each case in form and substance satisfactory to the Administrative Agent, insuring the continuing perfection and priority of the Wynn Credit Agreement or respective Liens on the ▇▇▇▇ Golf Course Land (after giving effect to the release of the Home Site Land and the amendments and re-recordations contemplated by subsection (v) above) and (vii) (A) either (x) no Points of Diversion with respect to the Water Permits, ▇▇▇▇▇ otherwise concurrently consent associated therewith or rights-of-way necessary for the transportation of water available under the Water Permits to such Disposition;
(m) Valvino shall be permitted to Dispose the Golf Course Land or the water features of the Phase II LandLe Rêve hotel and casino, and as the Lenders hereby consent to such Dispositioncase may be, are located on the conditions that Home Site Land or (iy) the applicable Golf Course Land Owner(s) shall have transferred at no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant cost to the terms Loan Parties (I) in the case of the Wynn Credit Agreement or the ▇▇▇▇ Points of Diversion and associated ▇▇▇▇▇ otherwise concurrently consent with respect to the Valvino Water Permits or the DIIC Casino Water Permit, and rights-of-way necessary for the transportation of water available under such Water Permits to the water features of the Le Rêve hotel and casino, such easements to the Borrower as are necessary for the Borrower to access such Points of Diversion, own and operate such ▇▇▇▇▇ and transport such water to the water features of the Le Rêve hotel and casino and (II) in the case of Points of Diversion with respect to all other DIIC Water Permits and rights-of-way necessary for the transportation of water available under such Water Permits to the Golf Course Land, such easements to the Borrower and ▇▇▇▇ Resorts Holdings as are necessary for such Persons to access such Points of Diversion, own and operate such ▇▇▇▇▇ and transport the water drawn therefrom to the Golf Course Land and (B) the Borrower and ▇▇▇▇ Resorts Holdings, as the case may be, shall have taken all actions required pursuant to Section 6.10 with respect to any Property acquired pursuant to clause (vii)(A) above. Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the appropriate Golf Course Land Owners such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably necessary to release the Liens granted to the Lenders in the Home Site Land, and to permit such Disposition;
(n) any Event of Eminent Domain, ; provided, that the requirements of Section 8.1 are complied with in connection therewith; and
(o) Dispositions of Items of Equipment which are replaced pursuant to Section 4.7 of the Borrower Security Agreement.
(p) the Disposition of the Aircraft so long as
(i) the consideration received for the Aircraft shall be in an amount at least equal instrument reasonably acceptable to the fair market value thereof,
(ii) the sole consideration received shall be cash, and
(iii) either
(A) the aggregate Net Disposition Proceeds from such Disposition are paid to the Collateral Administrative Agent and applied to the prepayment of the Loans used to refinance the Aircraft pursuant to Section 3.1(a) or
(1) World Travel or the Aircraft Trustee simultaneously acquires a Replacement Aircraft which becomes subject to the Aircraft Security Agreement pursuant to Section 4.7(c) thereof,
(2) the aggregate Net Disposition Proceeds from such Disposition are applied to the acquisition of the Replacement Aircraft and the remaining funds required for the acquisition of the Replacement Aircraft are obtained from only the following sources:is recorded against the
Appears in 1 contract
Sources: Credit Agreement (Wynn Resorts LTD)
Limitation on Disposition of Property. Dispose of any of its Property or Property (including, without limitation, receivables and leasehold interests)Property, whether now owned or hereafter acquired, or or, in the case of any Class I Restricted Subsidiary, issue or sell any shares of such Class I Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition for fair market value of obsolete, surplus or worn out property in the ordinary course of business, including the sale of parcels of real property adjacent to parcels being used in the Borrower’s or any Class I Restricted Subsidiary’s business, which adjacent parcels are not necessary in the business of the Borrower or such Class I Restricted Subsidiary;
(i) the Disposition of inventory in the ordinary course of business of obsolete or worn out Property or Property no longer useful in the business of the applicable Loan Party; provided, that (i) such Disposition could not reasonably be expected to materially adversely affect the Project, any of the Mortgaged Properties or any of the Collateral, and (ii) to the extent such Property is Collateralgranting of leases, prior to such Disposition any such Property shall be replaced with other Property licenses, subleases and sublicenses of real and personal property (Aincluding Intellectual Property) substantially equal or greater utility and similar use and (B) either (x) a value at least substantially equal to that of the replaced Property when first acquired or (y) substantially equal or greater quality and, if applicable, prestige and caliber as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and (iii) to the extent such Property is Collateral, the applicable Loan Party shall subject such replacement property to the Lien of the Security Documents in favor of the Lenders of at least the same priority as the Property so replaced and otherwise in compliance with the Borrower Security Agreement and the Aircraft Security Agreement, as applicable;
(b) the Disposition of Cash or Cash Equivalents or Permitted Securities (in each case in transactions otherwise permitted hereunder), Investments permitted pursuant to Section 7.8, inventory (in the ordinary course of business) business and receivables (in connection which do not materially interfere with the collection thereof and otherwise as customary in gaming operations business of the type conducted by the Loan Parties)Borrower and its Subsidiaries;
(c) Dispositions permitted by Section 7.4 7.4(a), (including the Disposition of Capital Stock of Loan Parties pursuant to Section 7.4(b))b) and (d) and Sections 7.6 and 7.8;
(d) the Disposition of any Property to, or the sale or issuance of any Loan Party's Subsidiary’s Capital Stock (other than Disqualified Stock) to its direct parent that is a Loan Party in furtherance of Investments permitted pursuant to Section 7.8(e)to, the Borrower or any Subsidiary Guarantor;
(e) Dispositions of Property having a fair market value not in excess of $5,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year following the Completion Date; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; (ii) the sole consideration received shall be cash; and (iii) to the extent such Asset Sales relate to the Collateral, the proceeds of such Asset Sales shall be applied to either (A) the prepayment of the Loans pursuant to Section 3.1(a) or (B) the acquisition of assets which shall become a Substitute Item or Substitute Items pursuant to and in accordance with Section 4.7 of the Borrower Security AgreementRecovery Event;
(f) subject to Section 4.2 an exchange or “swap” of fixed, tangible assets of the Borrower Security Agreement, or any of its Class I Restricted Subsidiaries for the assets of a Person other than the Borrower may enter into any leases with respect to any Item of Equipmentand its Class I Restricted Subsidiaries; provided that, and subject to Section 4.2 of the Aircraft Security Agreement, the Aircraft Trustee, or World Travel pursuant to the Aircraft Operating Agreement, may enter into any lease with respect to the Aircraft, and Valvino may enter into any commercial office space leases with respect to the Phase II Land Building;
(g) (i) any Loan Party may dedicate space within the Project for assets received by the purpose Borrower or such Class I Restricted Subsidiary will be used or useful in a similar line of constructing (A) a mass transit system, (B) a pedestrian bridge over business that the Borrower and its Class I Restricted Subsidiaries are engaged in on the date of this Agreement or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicle traffic, (C) a right turn lane or other roadway dedication or (iv) such other structures or improvements that are reasonably related to and in furtherance of the developmentthereto, construction and operation of the Project; provided, that in each case such dedication does not materially impair or interfere in the use or operation of the Project or any Loan Party or materially detract from the value of the Property subject thereto and (ii) the Borrower or such Class I Restricted Subsidiary receives reasonably equivalent value for such assets, such equivalent value to be demonstrated to the reasonable satisfaction of the Administrative Agent (or, in the case of an exchange or “swap” with a non-Affiliate of real property between Valvino any Loan Party, as determined by the board of directors of the Borrower or such Class I Restricted Subsidiary, as the case may be) and ▇▇▇▇▇ County(iii) if the asset which is the subject of such exchange or “swap” constituted Collateral hereunder, Nevada, pursuant to which each the Borrower or such party shall transfer to each other fee ownership in real property having approximately equal fair market values; provided, that (A) in no event shall Valvino transfer more than an aggregate amount of 40,000 square feet of real property pursuant to this clause (ii), (B) Valvino Class I Restricted Subsidiary shall take such actions as required pursuant action necessary to Sections 6.10 create and 7.26 perfect the security interest of the Wynn Credit Agreement with respect to any real property acquired pursuant to this clause (ii) and (C) Administrative Agent for the benefit of the Secured Parties in the assets received by the Borrower or such Class I Subsidiary in such exchange of real property could not reasonably be expected to materially and adversely affect or interfere with the Permitted Business of any Loan Party or have a material adverse effect on the Casino Land, the Golf Course Land or the Phase II Land;
(h) (x) the Loan Parties may license trademarks and trade names in the ordinary course of business and, in any event, Wynn Resort Holdings may license to Wynn Resorts, for less than fair market value, any or all Intellectual Property in or relating to the name "Wynn Resorts" (including, without limitation, any and all Intellectual Property identified in subparts (a)(12), (a)(14)-(19), (b)(1), and (c) of Part IX of Schedule 4.9(b)) (collectively, the "Wynn Resorts IP") and (y) ▇▇▇▇ Resorts Holdings may transfer to Wynn Resorts, for less than fair market value, any or all of the Wynn Resorts IP (provided, that all of the Wynn Resorts IP shall be transferred by ▇▇▇▇ Resorts Holdings to Wynn Resorts as soon as is practicable after the Document Closing Date;
(i) the incurrence of Liens permitted under Section 7.3, provided that any leases other than those permitted “swap” pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5;
(j) the applicable Golf Course Land Owner(s) shall be permitted to Dispose of the ▇▇▇▇ Home Site Land to ▇▇. ▇▇▇▇, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition, and (ii) such disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ concurrently consent to such Disposition;
(k) the Golf Course Land Owner(s) shall be permitted to Dispose of the Golf Course Land and in connection therewith the applicable Loan Parties shall be permitted to Dispose of their ownership in the Capital Stock of Desert Inn Water and Desert Inn Improvement and the DIIC Water Permits (other than the DIIC Casino Water Permit), and the Lenders hereby consent to such Dispositions, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Dispositions and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(l) the applicable Golf Course Land Owner(s) shall be permitted to Dispose of the Home Site Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(m) Valvino shall be permitted to Dispose of the Phase II Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(n) any Event of Eminent Domain, provided, that the requirements of Section 8.1 are complied with in connection therewith; and
(o) Dispositions of Items of Equipment which are replaced pursuant to Section 4.7 of the Borrower Security Agreement.
(p) the Disposition of the Aircraft so long as
(i) the consideration received for the Aircraft shall be in an amount at least equal to the fair market value thereof,
(ii) the sole consideration received shall be cash, and
(iii) either
(A) the aggregate Net Disposition Proceeds from such Disposition are paid to the Collateral Agent and applied to the prepayment of the Loans used to refinance the Aircraft pursuant to Section 3.1(a) or
(1) World Travel or the Aircraft Trustee simultaneously acquires a Replacement Aircraft which becomes subject to the Aircraft Security Agreement pursuant to Section 4.7(c) thereof,
(2) the aggregate Net Disposition Proceeds from such Disposition are applied to the acquisition of the Replacement Aircraft and the remaining funds required for the acquisition of the Replacement Aircraft are obtained from only the following sources:to
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property or Property (including, without limitation, receivables and leasehold interests)Property, whether now owned or hereafter acquired, or or, in the case of any Class I Restricted Subsidiary, issue or sell any shares of such Class I Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition for fair market value of obsolete, surplus or worn out property in the ordinary course of business, including the sale of parcels of real property adjacent to parcels being used in the Borrower’s or any Class I Restricted Subsidiary’s business, which adjacent parcels are not necessary in the business of the Borrower or such Class I Restricted Subsidiary;
(i) the Disposition of inventory in the ordinary course of business of obsolete or worn out Property or Property no longer useful in the business of the applicable Loan Party; provided, that (i) such Disposition could not reasonably be expected to materially adversely affect the Project, any of the Mortgaged Properties or any of the Collateral, and (ii) to the extent such Property is Collateralgranting of leases, prior to such Disposition any such Property shall be replaced with other Property licenses, subleases and sublicenses of real and personal property (Aincluding Intellectual Property) substantially equal or greater utility and similar use and (B) either (x) a value at least substantially equal to that of the replaced Property when first acquired or (y) substantially equal or greater quality and, if applicable, prestige and caliber as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and (iii) to the extent such Property is Collateral, the applicable Loan Party shall subject such replacement property to the Lien of the Security Documents in favor of the Lenders of at least the same priority as the Property so replaced and otherwise in compliance with the Borrower Security Agreement and the Aircraft Security Agreement, as applicable;
(b) the Disposition of Cash or Cash Equivalents or Permitted Securities (in each case in transactions otherwise permitted hereunder), Investments permitted pursuant to Section 7.8, inventory (in the ordinary course of business) business and receivables (in connection which do not materially interfere with the collection thereof and otherwise as customary in gaming operations business of the type conducted by the Loan Parties)Borrower and its Subsidiaries;
(c) Dispositions permitted by Section 7.4 7.4(a), (including the Disposition of Capital Stock of Loan Parties pursuant to Section 7.4(b))b) and (d) and Sections 7.6 and 7.8;
(d) the Disposition of any Property to, or the sale or issuance of any Loan Party's Subsidiary’s Capital Stock (other than Disqualified Stock) to its direct parent that is a Loan Party in furtherance of Investments permitted pursuant to Section 7.8(e)to, the Borrower or any Subsidiary Guarantor;
(e) Dispositions of Property having a fair market value not in excess of $5,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year following the Completion Date; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; (ii) the sole consideration received shall be cash; and (iii) to the extent such Asset Sales relate to the Collateral, the proceeds of such Asset Sales shall be applied to either (A) the prepayment of the Loans pursuant to Section 3.1(a) or (B) the acquisition of assets which shall become a Substitute Item or Substitute Items pursuant to and in accordance with Section 4.7 of the Borrower Security AgreementRecovery Event;
(f) subject to Section 4.2 an exchange or “swap” of fixed, tangible assets of the Borrower Security Agreementor any of its Class I Restricted Subsidiaries for the assets of a Person other than the Borrower and its Class I Restricted Subsidiaries; provided that, (i) the assets received by the Borrower or such Class I Restricted Subsidiary will be used or useful in a similar line of business that the Borrower and its Class I Restricted Subsidiaries are engaged in on the date of this Agreement or that are reasonably related thereto, (ii) the Borrower or such Class I Restricted Subsidiary receives reasonably equivalent value for such assets, such equivalent value to be demonstrated to the reasonable satisfaction of the Administrative Agent (or, in the case of an exchange or “swap” with a non-Affiliate of any Loan Party, as determined by the board of directors of the Borrower or such Class I Restricted Subsidiary, as the case may be) and (iii) if the asset which is the subject of such exchange or “swap” constituted Collateral hereunder, the Borrower may enter into any leases with respect or such Class I Restricted Subsidiary shall take such action necessary to any Item create and perfect the security interest of Equipment, and subject the Administrative Agent for the benefit of the Secured Parties in the assets received by the Borrower or such Class I Subsidiary in such exchange or “swap” pursuant to Section 4.2 of the Aircraft Security Agreement6.9, provided further that, the Aircraft Trustee, fair market value of all such assets exchanged or World Travel pursuant to “swapped” after the Aircraft Operating Agreement, may enter into any lease with respect to Restatement Closing Date shall not exceed $150,000,000 in the Aircraft, and Valvino may enter into any commercial office space leases with respect to the Phase II Land Buildingaggregate;
(g) the issuance and sale of directors’ qualifying shares and shares required by applicable law to be held by a Person other than the Borrower or its Class I Restricted Subsidiaries;
(h) the issuance and sale of minority interests in joint ventures, partnerships and other entities to third parties to the extent that the proceeds of such sale are reinvested in the related joint venture, partnership or other entity;
(i) any Loan Party may dedicate space within the Project for the purpose Disposition of constructing digital cinema equipment in connection with a Digital Cinema Equipment Lease with DCIP or Digital Projector Financing;
(Aj) a mass transit system, (Ba(i) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicle traffic, (C) a right turn lane any sale or other roadway dedication or (iv) such other structures or improvements reasonably related to and in furtherance Disposition of the development, construction type described in EITF 97-10ASC 840-40-55 in connection with a sale and operation of the Projectleaseback transaction otherwise permitted hereby; provided, that in each case such dedication does not materially impair or interfere in the use or operation of the Project or any Loan Party or materially detract from the value of the Property subject thereto and (ii) any Sale and Leaseback Transaction; provided that the exchange aggregate fair market value of all real property between Valvino and ▇▇▇▇▇ County, Nevada, Disposed of pursuant to which each such party shall transfer to each other fee ownership in real property having approximately equal fair market values; provided, that (A) in no event shall Valvino transfer more than an aggregate amount of 40,000 square feet of real property Sale and Leaseback Transactions pursuant to this clause (ii), j)(ii) shall not exceed $300,000,000 during the term of this Agreement after the Fifth Amendment Effective Date;
(Bk) Valvino shall take such actions as required pursuant to Sections 6.10 and 7.26 the Disposition of the Wynn Credit Agreement with respect to any real property acquired pursuant subject to this clause (ii) and (C) such exchange of real property could not reasonably be expected to materially and adversely affect or interfere with the Permitted Business of any Loan Party or have a material adverse effect sale contract on the Casino Land, the Golf Course Land or the Phase II Land;
(h) (x) the Loan Parties may license trademarks and trade names in the ordinary course of business and, in any event, Wynn Resort Holdings may license to Wynn Resorts, for less than fair market value, any or all Intellectual Property in or relating to the name "Wynn Resorts" (including, without limitation, any and all Intellectual Property identified in subparts (a)(12Restatement Closing Date as described on Schedule 7.5(k), (a)(14)-(19), (b)(1), and (c) of Part IX of Schedule 4.9(b)) (collectively, the "Wynn Resorts IP") and (y) ▇▇▇▇ Resorts Holdings may transfer to Wynn Resorts, for less than fair market value, any or all of the Wynn Resorts IP (provided, that all of the Wynn Resorts IP shall be transferred by ▇▇▇▇ Resorts Holdings to Wynn Resorts as soon as is practicable after the Document Closing Date;
(i) the incurrence of Liens permitted under Section 7.3, provided that any leases other than those permitted pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5;
(j) the applicable Golf Course Land Owner(s) shall be permitted to Dispose Disposition of the ▇▇▇▇ Home Site Land to ▇▇. ▇▇▇▇Borrower’s or any Class I Restricted Subsidiary’s minority interest in National CineMedia, and the Lenders hereby consent to LLC, NCM Holdings or any holding company holding any such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition, and interest and/or (ii) such disposition is permitted Disposition of any interest in DCIP, any Unrestricted Subsidiary, any joint venture or any interest acquired pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ concurrently consent to such Disposition;
(k) the Golf Course Land Owner(s) shall be permitted to Dispose of the Golf Course Land and a Permitted Business Investment, and, in connection therewith the applicable Loan Parties shall be permitted to Dispose of their ownership in the Capital Stock of Desert Inn Water and Desert Inn Improvement and the DIIC Water Permits (other than the DIIC Casino Water Permiteach case under this Section 7.5(l), and the Lenders hereby consent to such Dispositions, on the conditions that (i) no Default or Event subsequent Disposition of Default has occurred and is continuing at the time of such Dispositions and (ii) such Disposition is permitted any consideration received pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(l) the applicable Golf Course Land Owner(s) shall be permitted to Dispose of the Home Site Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(m) Valvino shall be the Disposition of cash and Cash Equivalents permitted to Dispose of the Phase II Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Dispositionunder this Agreement;
(n) Dispositions of Property pursuant to contracts between the Borrower and the U.S. Department of Justice or the Federal Trade Commission related to any Event of Eminent Domain, provided, that the requirements of Section 8.1 are complied with in connection therewithPermitted Acquisition; and
(o) Dispositions of Items of Equipment which are replaced pursuant to Section 4.7 of the Borrower Security Agreement.
(p) the Disposition after the Restatement Closing Date of the Aircraft so long as
(i) the consideration received for the Aircraft shall be in an amount at least equal to the other assets having a fair market value thereof,
(ii) not to exceed $500,000,000 in the sole consideration received shall be cash, and
(iii) either
(A) the aggregate Net Disposition Proceeds from such Disposition are paid to the Collateral Agent and applied to the prepayment of the Loans used to refinance the Aircraft aggregate. Certain Dispositions pursuant to this Section 3.1(a) or
(1) World Travel or the Aircraft Trustee simultaneously acquires a Replacement Aircraft which becomes subject 7.5 may give rise to the Aircraft Security Agreement pursuant to mandatory prepayment obligations under Section 4.7(c) thereof,
(2) the aggregate Net Disposition Proceeds from such Disposition are applied to the acquisition of the Replacement Aircraft and the remaining funds required for the acquisition of the Replacement Aircraft are obtained from only the following sources:2.10(b).
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property or Property (including, without limitation, including receivables and leasehold interests), whether now owned or hereafter acquired, or or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition for fair market value Dispositions of obsolete, damaged, worn out, aged, used or surplus property, whether now owned or hereafter acquired in the ordinary course of business business, and Dispositions of obsolete or worn out Property or Property property no longer used or useful in the conduct of the business of the applicable Loan Party; provided, that (i) such Disposition could not reasonably be expected to materially adversely affect the Project, any of the Mortgaged Properties Parent Borrower or any of its Restricted Subsidiaries, in each case determined by the Collateral, (ii) to the extent such Property is Collateral, prior to such Disposition any such Property shall be replaced with other Property of (A) substantially equal or greater utility and similar use and (B) either (x) a value at least substantially equal to that of the replaced Property when first acquired or (y) substantially equal or greater quality and, if applicable, prestige and caliber as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and (iii) to the extent such Property is Collateral, the applicable Loan Party shall subject such replacement property to the Lien of the Security Documents Parent Borrower in favor of the Lenders of at least the same priority as the Property so replaced and otherwise in compliance with the Borrower Security Agreement and the Aircraft Security Agreement, as applicablegood faith;
(b) the Disposition sale of Cash or Cash Equivalents or Permitted Securities inventory and other assets (in each case in transactions otherwise permitted hereunder), Investments permitted pursuant to Section 7.8, inventory (other than accounts receivable) held for sale in the ordinary course of business) and receivables (in connection with the collection thereof and otherwise as customary in gaming operations of the type conducted by the Loan Parties);
(c) Dispositions permitted by Section 7.4 6.4 (including the Disposition of Capital Stock of Loan Parties pursuant to other than Section 7.4(b6.4(b)(ii));
(d) (i) the sale or issuance of any Loan Party's Restricted Subsidiary’s Capital Stock (other than Disqualified Stock) to its direct parent that is a any Loan Party in furtherance or the sale or issuance of Investments permitted pursuant any Excluded Subsidiary’s Capital Stock to Section 7.8(e)another Restricted Subsidiary; provided, that the Guarantors’ collective ownership interest therein is not diluted; and (ii) the sale or issuance of any Capital Stock of, or any Indebtedness or other securities of, any Unrestricted Subsidiary;
(e) Dispositions of Property having Receivables Assets pursuant to factoring agreements or other similar agreements or arrangements including in connection with a fair market value not Receivables Facility or a Factoring Facility, in excess of $5,000,000 each case so long as the consideration for any such Disposition is in the aggregate (with respect to all form of cash or subordinated interests in the Loan Parties) in any Fiscal Year following the Completion Date; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; (ii) the sole consideration received shall be cash; and (iii) to the extent such Asset Sales relate to the Collateral, the proceeds of such Asset Sales shall be applied to either (A) the prepayment of the Loans pursuant to Section 3.1(a) or (B) the acquisition of assets which shall become a Substitute Item or Substitute Items pursuant to and in accordance with Section 4.7 of the Borrower Security AgreementReceivables Assets being sold;
(f) subject to Section 4.2 the Disposition of the Borrower Security Agreement, the Borrower may enter into any leases with respect to any Item of Equipment, and subject to Section 4.2 of the Aircraft Security Agreement, the Aircraft Trustee, cash or World Travel pursuant to the Aircraft Operating Agreement, may enter into any lease with respect to the Aircraft, and Valvino may enter into any commercial office space leases with respect to the Phase II Land BuildingCash Equivalents or investment grade securities;
(g) (i) any Loan Party may dedicate space within the Project for the purpose non-exclusive license or sub-license of constructing (A) a mass transit system, (B) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicle traffic, (C) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to and in furtherance of the development, construction and operation of the Project; provided, that in each case such dedication does not materially impair or interfere Intellectual Property in the use or operation ordinary course of the Project or any Loan Party or materially detract from the value of the Property subject thereto business and (ii) the exchange lapse or abandonment in the ordinary course of real business of any registrations or applications for registration of any Intellectual Property;
(h) the lease, sublease, license or sublicense of property between Valvino as described in Section 6.3(i);
(i) the Disposition of surplus or other property no longer used or useful in the business of the Group Members in the ordinary course of business;
(j) the Disposition of other assets (including the issuance or sale of any shares of a Restricted Subsidiary’s Capital Stock) from and ▇▇▇▇▇ Countyafter the Closing Date, Nevada, so long as (i) with respect to any Disposition pursuant to which each this clause (j) for a purchase price in excess of $5 million, (A) at least 75.0% of the consideration therefor is in the form of cash or Cash Equivalents or exchanged for other assets of comparable or greater market value or usefulness to the business of the Group Members, taken as a whole and (B) such party Disposition is made at fair value (as determined in good faith by the Parent Borrower) and (ii) no Event of Default shall transfer to each other fee ownership in real property having approximately equal fair market valueshave occurred and be continuing at the time of such Disposition; provided, that (A) any liabilities (as shown on the Parent Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Parent Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the payment in cash of the Obligations (other than contingent indemnification and reimbursement obligations as to which no event claim has been asserted by the Person entitled thereto), that are assumed by the transferee with respect to the applicable Disposition and, in the case of liabilities that constitute Indebtedness, for which the Parent Borrower and all of the Restricted Subsidiaries shall Valvino transfer more than have been validly released by all applicable creditors in writing, (B)any securities received by the Parent Borrower or such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable Disposition and (C) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate amount of 40,000 square feet of real property fair market value (as determined in good faith by the Parent Borrower) that, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (ii)C) that has not been converted into cash, does not exceed the greater of (A) $15 million and (B) Valvino 15% of Trailing Four Quarter Consolidated EBITDA, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall take such actions as required be deemed for purposes of clause (j)(i) to be cash;
(k) the Disposition of assets subject to or in connection with any Recovery Event;
(l) Dispositions consisting of Restricted Payments permitted by Section 6.6;
(m) Dispositions consisting of Investments permitted by Section 6.7;
(n) Dispositions consisting of Liens permitted by Section 6.3;
(o) Dispositions of assets pursuant to Sections 6.10 Sale and 7.26 Leaseback Transactions permitted by Section 6.10;
(p) Dispositions of the Wynn Credit Agreement with respect property to any real Group Member; provided, that if the transferor of such property acquired pursuant to this clause is a Loan Party and such Disposition is not for fair value (as reasonably determined by the Parent Borrower) (i) the transferee thereof must be the Parent Borrower, any other Borrower or a Subsidiary Guarantor (or must become a Subsidiary Guarantor substantially simultaneously with such Disposition) or (ii) and (C) to the extent constituting an Investment, such exchange of real property could not reasonably Disposition must be expected to materially and adversely affect or interfere with the Permitted Business of any a permitted Investment in a Non-Loan Party Subsidiary or have in a material adverse effect on the Casino Land, the Golf Course Land or the Phase II LandCanadian Loan Party in accordance with Section 6.7;
(hq) Dispositions of Investments in joint ventures or similar entities to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(xr) Dispositions of accounts receivable in connection with the Loan Parties may license trademarks and trade names collection or compromise thereof in the ordinary course of business and(and not for financing purposes);
(s) the partial or total unwinding of any Swap Contract or any Cash Management Services;
(t) in order to resolve disputes that occur in the ordinary course of business, in any event, Wynn Resort Holdings the Group Members may license to Wynn Resorts, discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(u) any Dispositions constituting any part of a Permitted Reorganization or IPO Reorganization Transaction;
(v) any Group Member may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the governing body of the Subsidiary if and to the extent required by applicable law;
(w) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property, (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property; provided, that to the extent the property being transferred constitutes Collateral, such replacement property shall constitute Collateral or (iii) such property is exchanged for like property (without regard to any boot thereon) for use in a similar business, to the extent allowable under Section 1031 of the Code;
(x) Dispositions not otherwise permitted by this Section 6.5 so long as the aggregate fair market value, any or all Intellectual Property value (as determined by the Parent Borrower in or relating to good faith at the name "Wynn Resorts" (including, without limitation, any and all Intellectual Property identified in subparts (a)(12), (a)(14)-(19), (b)(1), and (ctime of the relevant Disposition) of Part IX the assets disposed in any single transaction does not exceed the greater of Schedule 4.9(b)(x) (collectively, the "Wynn Resorts IP") $10 million and (y) ▇▇▇▇ Resorts Holdings may transfer to Wynn Resorts, for less than fair market value, any or all 10% of the Wynn Resorts IP (provided, that all of the Wynn Resorts IP shall be transferred by ▇▇▇▇ Resorts Holdings to Wynn Resorts as soon as is practicable after the Document Closing DateTrailing Four Quarter Consolidated EBITDA;
(iy) the incurrence of Liens permitted under Section 7.3, provided that foreclosure or any leases other than those permitted pursuant similar action with respect to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5any property;
(jz) the applicable Golf Course Land Owner(s) shall be permitted to Dispose any disposition of the ▇▇▇▇ Home Site Land to ▇▇. ▇▇▇▇, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition, and (ii) such disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ concurrently consent to such Disposition;
(k) the Golf Course Land Owner(s) shall be permitted to Dispose of the Golf Course Land and in connection therewith the applicable Loan Parties shall be permitted to Dispose of their ownership in the Capital Stock of Desert Inn Water and Desert Inn Improvement and the DIIC Water Permits a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the DIIC Casino Water PermitParent Borrower or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the Lenders hereby consent consideration in respect of such sale or acquisition;
(aa) any lending or other disposition of samples, including time-limited evaluation software, provided to such Dispositionscustomers or prospective customers; and (bb) any surrender or waiver of contractual rights or the settlement, on the conditions that release, surrender or waiver of contractual, tort, litigation or other claims of any kind;
(bb) Dispositions (i) no Default of non-core assets acquired in connection with Permitted Acquisitions or Event of Default has occurred and is continuing at the time of such Dispositions and other permitted Investments or (ii) such Disposition is made to obtain the approval of an anti-trust authority;
(cc) Dispositions of assets not constituting Collateral in an aggregate amount not to exceed the greater of (x) $25 million and (y) 25% of Trailing Four Quarter Consolidated EBITDA per annum;
(dd) Dispositions of Non-ABL Priority Collateral (as defined in the ABL Intercreditor Agreement) not otherwise permitted by this Section 6.5 to the extent the net proceeds thereof are applied to the First Lien Obligations (or reinvested pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to definitive documentation governing any such DispositionFirst Lien Obligations);
(lee) the applicable Golf Course Land Owner(s) shall be permitted to Dispose of the Home Site Land, and the Lenders hereby consent to such Disposition, Dispositions described on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(m) Valvino shall be permitted to Dispose of the Phase II Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(n) any Event of Eminent Domain, provided, that the requirements of Section 8.1 are complied with in connection therewithSchedule 6.5; and
(off) Dispositions cancellation of Items Indebtedness owing to the Parent Borrower or any Restricted Subsidiary from members of Equipment which are replaced management of the Parent Borrower, any of the Parent Borrower’s direct or indirect parent companies or any of the Parent Borrower’s Restricted Subsidiaries in connection with a repurchase or redemption of Capital Stock of any of the Parent Borrower’s direct or indirect parent companies. Any Disposition of Capital Stock of any Loan Party from one Group Member to another Group Member otherwise permitted by this Section 6.5 that results in any Subsidiary Guarantor becoming a Non-Loan Party Subsidiary or an Excluded Subsidiary (pursuant to Section 4.7 clause (a) of the Borrower Security Agreement.
(pdefinition of such term after giving effect to such Disposition) the Disposition of the Aircraft so long as
(i) the consideration received for the Aircraft shall be deemed an Investment in a Non-Loan Party Subsidiary for purposes of (and subject to) Section 6.7 in an amount at least equal to the fair market value thereof,
(iias reasonably determined in good faith by the Parent Borrower) the sole consideration received shall be cash, and
(iii) either
(A) the aggregate Net Disposition Proceeds from of such Disposition are paid Subsidiary Guarantor prior to the Collateral Agent and applied giving effect to the prepayment of the Loans used to refinance the Aircraft pursuant to Section 3.1(a) or
(1) World Travel or the Aircraft Trustee simultaneously acquires a Replacement Aircraft which becomes subject to the Aircraft Security Agreement pursuant to Section 4.7(c) thereof,
(2) the aggregate Net Disposition Proceeds from such Disposition are applied to the acquisition of the Replacement Aircraft and the remaining funds required for the acquisition of the Replacement Aircraft are obtained from only the following sources:Disposition.
Appears in 1 contract
Sources: Abl Credit Agreement (Specialty Building Products, Inc.)
Limitation on Disposition of Property. Dispose of any of its Property or Property (including, without limitation, including receivables and leasehold interests), whether now owned or hereafter acquired, or or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition for fair market value Dispositions of obsolete, damaged, worn out, aged, used or surplus property, whether now owned or hereafter acquired in the ordinary course of business business, and Dispositions of obsolete or worn out Property or Property property no longer used or useful in the conduct of the business of the applicable Loan Party; provided, that (i) such Disposition could not reasonably be expected to materially adversely affect the Project, any of the Mortgaged Properties Parent Borrower or any of its Restricted Subsidiaries, in each case determined by the Collateral, (ii) to the extent such Property is Collateral, prior to such Disposition any such Property shall be replaced with other Property of (A) substantially equal or greater utility and similar use and (B) either (x) a value at least substantially equal to that of the replaced Property when first acquired or (y) substantially equal or greater quality and, if applicable, prestige and caliber as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and (iii) to the extent such Property is Collateral, the applicable Loan Party shall subject such replacement property to the Lien of the Security Documents Parent Borrower in favor of the Lenders of at least the same priority as the Property so replaced and otherwise in compliance with the Borrower Security Agreement and the Aircraft Security Agreement, as applicablegood faith;
(b) the Disposition sale of Cash or Cash Equivalents or Permitted Securities inventory and other assets (in each case in transactions otherwise permitted hereunder), Investments permitted pursuant to Section 7.8, inventory (other than accounts receivable) held for sale in the ordinary course of business) and receivables (in connection with the collection thereof and otherwise as customary in gaming operations of the type conducted by the Loan Parties);
(c) Dispositions permitted by Section 7.4 6.4 (including the Disposition of Capital Stock of Loan Parties pursuant to other than Section 7.4(b6.4(b)(ii));
(d) (i) the sale or issuance of any Loan Party's Restricted Subsidiary’s Capital Stock (other than Disqualified Stock) to its direct parent that is a any Loan Party in furtherance or the sale or issuance of Investments permitted pursuant any Excluded Subsidiary’s Capital Stock to Section 7.8(e)another Restricted Subsidiary; provided, that the Guarantors’ collective ownership interest therein is not diluted; and (ii) the sale or issuance of any Capital Stock of, or any Indebtedness or other securities of, any Unrestricted Subsidiary;
(e) Dispositions of Property having Receivables Assets pursuant to factoring agreements or other similar agreements or arrangements including in connection with a fair market value not Receivables Facility or a Factoring Facility, in excess of $5,000,000 each case so long as the consideration for any such Disposition is in the aggregate (with respect to all form of cash or subordinated interests in the Loan Parties) in any Fiscal Year following the Completion Date; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; (ii) the sole consideration received shall be cash; and (iii) to the extent such Asset Sales relate to the Collateral, the proceeds of such Asset Sales shall be applied to either (A) the prepayment of the Loans pursuant to Section 3.1(a) or (B) the acquisition of assets which shall become a Substitute Item or Substitute Items pursuant to and in accordance with Section 4.7 of the Borrower Security AgreementReceivables Assets being sold;
(f) subject to Section 4.2 the Disposition of the Borrower Security Agreement, the Borrower may enter into any leases with respect to any Item of Equipment, and subject to Section 4.2 of the Aircraft Security Agreement, the Aircraft Trustee, cash or World Travel pursuant to the Aircraft Operating Agreement, may enter into any lease with respect to the Aircraft, and Valvino may enter into any commercial office space leases with respect to the Phase II Land BuildingCash Equivalents or investment grade securities;
(g) (i) any Loan Party may dedicate space within the Project for the purpose non-exclusive license or sub-license of constructing (A) a mass transit system, (B) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicle traffic, (C) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to and in furtherance of the development, construction and operation of the Project; provided, that in each case such dedication does not materially impair or interfere Intellectual Property in the use or operation ordinary course of the Project or any Loan Party or materially detract from the value of the Property subject thereto business and (ii) the exchange lapse or abandonment in the ordinary course of real business of any registrations or applications for registration of any Intellectual Property;
(h) the lease, sublease, license or sublicense of property between Valvino as described in Section 6.3(i);
(i) the Disposition of surplus or other property no longer used or useful in the business of the Group Members in the ordinary course of business;
(j) the Disposition of other assets (including the issuance or sale of any shares of a Restricted Subsidiary’s Capital Stock) from and ▇▇▇▇▇ Countyafter the Closing Date, Nevada, so long as (i) with respect to any Disposition pursuant to which each this clause (j) for a purchase price in excess of $5 million, (A) at least 75.0% of the consideration therefor is in the form of cash or Cash Equivalents or exchanged for other assets of comparable or greater market value or usefulness to the business of the Group Members, taken as a whole and (B) such party Disposition is made at fair value (as determined in good faith by the Parent Borrower) and (ii) no Event of Default shall transfer to each other fee ownership in real property having approximately equal fair market valueshave occurred and be continuing at the time of such Disposition; provided, that (A) any liabilities (as shown on the Parent Borrower’s or such Restricted Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Parent Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated in right of payment to the payment in cash of the Obligations (other than contingent indemnification and reimbursement obligations as to which no event claim has been asserted by the Person entitled thereto), that are assumed by the transferee with respect to the applicable Disposition and, in the case of liabilities that constitute Indebtedness, for which the Parent Borrower and all of the Restricted Subsidiaries shall Valvino transfer more than have been validly released by all applicable creditors in writing, (B)any securities received by the Parent Borrower or such Restricted Subsidiary from such transferee that are converted by such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of the applicable Disposition and (C) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate amount of 40,000 square feet of real property fair market value (as determined in good faith by the Parent Borrower) that, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (ii)C) that has not been converted into cash, does not exceed the greater of (A) $515 million and (B) Valvino 1015 % of Trailing Four Quarter Consolidated EBITDA, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall take such actions as required be deemed for purposes of clause (j)(i) to be cash;
(k) the Disposition of assets subject to or in connection with any Recovery Event;
(l) Dispositions consisting of Restricted Payments permitted by Section 6.6;
(m) Dispositions consisting of Investments permitted by Section 6.7;
(n) Dispositions consisting of Liens permitted by Section 6.3;
(o) Dispositions of assets pursuant to Sections 6.10 Sale and 7.26 Leaseback Transactions permitted by Section 6.10;
(p) Dispositions of the Wynn Credit Agreement with respect property to any real Group Member; provided, that if the transferor of such property acquired pursuant to this clause is a Loan Party and such Disposition is not for fair value (as reasonably determined by the Parent Borrower) (i) the transferee thereof must be the Parent Borrower, any other Borrower or a Subsidiary Guarantor (or must become a Subsidiary Guarantor substantially simultaneously with such Disposition) or (ii) and (C) to the extent constituting an Investment, such exchange of real property could not reasonably Disposition must be expected to materially and adversely affect or interfere with the Permitted Business of any a permitted Investment in a Non-Loan Party Subsidiary or have in a material adverse effect on the Casino Land, the Golf Course Land or the Phase II LandCanadian Loan Party in accordance with Section 6.7;
(hq) Dispositions of Investments in joint ventures or similar entities to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(xr) Dispositions of accounts receivable in connection with the Loan Parties may license trademarks and trade names collection or compromise thereof in the ordinary course of business and(and not for financing purposes);
(s) the partial or total unwinding of any Swap Contract or any Cash Management Services;
(t) in order to resolve disputes that occur in the ordinary course of business, in any event, Wynn Resort Holdings the Group Members may license to Wynn Resorts, discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;
(u) any Dispositions constituting any part of a Permitted Reorganization or IPO Reorganization Transaction;
(v) any Group Member may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the governing body of the Subsidiary if and to the extent required by applicable law;
(w) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property, (ii) the proceeds of such Disposition are promptly applied to the purchase price of such replacement property; provided, that to the extent the property being transferred constitutes Collateral, such replacement property shall constitute Collateral or (iii) such property is exchanged for like property (without regard to any boot thereon) for use in a similar business, to the extent allowable under Section 1031 of the Code;
(x) Dispositions not otherwise permitted by this Section 6.5 so long as the aggregate fair market value, any or all Intellectual Property value (as determined by the Parent Borrower in or relating to good faith at the name "Wynn Resorts" (including, without limitation, any and all Intellectual Property identified in subparts (a)(12), (a)(14)-(19), (b)(1), and (ctime of the relevant Disposition) of Part IX the assets disposed in any single transaction does not exceed the greater of Schedule 4.9(b)(x) (collectively, the "Wynn Resorts IP") $510 million and (y) ▇▇▇▇ Resorts Holdings may transfer to Wynn Resorts, for less than fair market value, any or all 10% of the Wynn Resorts IP (provided, that all of the Wynn Resorts IP shall be transferred by ▇▇▇▇ Resorts Holdings to Wynn Resorts as soon as is practicable after the Document Closing DateTrailing Four Quarter Consolidated EBITDA;
(iy) the incurrence of Liens permitted under Section 7.3, provided that foreclosure or any leases other than those permitted pursuant similar action with respect to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5any property;
(jz) the applicable Golf Course Land Owner(s) shall be permitted to Dispose any disposition of the ▇▇▇▇ Home Site Land to ▇▇. ▇▇▇▇, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition, and (ii) such disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ concurrently consent to such Disposition;
(k) the Golf Course Land Owner(s) shall be permitted to Dispose of the Golf Course Land and in connection therewith the applicable Loan Parties shall be permitted to Dispose of their ownership in the Capital Stock of Desert Inn Water and Desert Inn Improvement and the DIIC Water Permits a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the DIIC Casino Water PermitParent Borrower or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the Lenders hereby consent consideration in respect of such sale or acquisition;
(aa) any lending or other disposition of samples, including time-limited evaluation software, provided to such Dispositionscustomers or prospective customers; and (bb) any surrender or waiver of contractual rights or the settlement, on the conditions that release, surrender or waiver of contractual, tort, litigation or other claims of any kind;
(bb) Dispositions (i) no Default of non-core assets acquired in connection with Permitted Acquisitions or Event of Default has occurred and is continuing at the time of such Dispositions and other permitted Investments or (ii) such Disposition is made to obtain the approval of an anti-trust authority;
(cc) Dispositions of assets not constituting Collateral in an aggregate amount not to exceed the greater of (x) $525 million and (y) 525% of Trailing Four Quarter Consolidated EBITDA per annum;
(dd) Dispositions of Non-ABL Priority Collateral (as defined in the ABL Intercreditor Agreement) not otherwise permitted by this Section 6.5 to the extent the net proceeds thereof are applied to the First Lien Obligations (or reinvested pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to definitive documentation governing any such DispositionFirst Lien Obligations);
(lee) the applicable Golf Course Land Owner(s) shall be permitted to Dispose of the Home Site Land, and the Lenders hereby consent to such Disposition, Dispositions described on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(m) Valvino shall be permitted to Dispose of the Phase II Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(n) any Event of Eminent Domain, provided, that the requirements of Section 8.1 are complied with in connection therewithSchedule 6.5; and
(off) Dispositions cancellation of Items Indebtedness owing to the Parent Borrower or any Restricted Subsidiary from members of Equipment which are replaced management of the Parent Borrower, any of the Parent Borrower’s direct or indirect parent companies or any of the Parent Borrower’s Restricted Subsidiaries in connection with a repurchase or redemption of Capital Stock of any of the Parent Borrower’s direct or indirect parent companies. Any Disposition of Capital Stock of any Loan Party from one Group Member to another Group Member otherwise permitted by this Section 6.5 that results in any Subsidiary Guarantor becoming a Non-Loan Party Subsidiary or an Excluded Subsidiary (pursuant to Section 4.7 clause (a) of the Borrower Security Agreement.
(pdefinition of such term after giving effect to such Disposition) the Disposition of the Aircraft so long as
(i) the consideration received for the Aircraft shall be deemed an Investment in a Non-Loan Party Subsidiary for purposes of (and subject to) Section 6.7 in an amount at least equal to the fair market value thereof,
(iias reasonably determined in good faith by the Parent Borrower) the sole consideration received shall be cash, and
(iii) either
(A) the aggregate Net Disposition Proceeds from of such Disposition are paid Subsidiary Guarantor prior to the Collateral Agent and applied giving effect to the prepayment of the Loans used to refinance the Aircraft pursuant to Section 3.1(a) or
(1) World Travel or the Aircraft Trustee simultaneously acquires a Replacement Aircraft which becomes subject to the Aircraft Security Agreement pursuant to Section 4.7(c) thereof,
(2) the aggregate Net Disposition Proceeds from such Disposition are applied to the acquisition of the Replacement Aircraft and the remaining funds required for the acquisition of the Replacement Aircraft are obtained from only the following sources:Disposition.
Appears in 1 contract
Sources: Abl Credit Agreement (Specialty Building Products, Inc.)
Limitation on Disposition of Property. Dispose of any of its Property or Property (including, without limitation, including receivables and leasehold interests), whether now owned or hereafter acquired, or issue or sell any shares of Capital Stock to any Person, except:
(ai) for the Disposition for fair market value of any Property that, in the ordinary course reasonable judgment of business of the Borrower, has become uneconomic, obsolete or worn out Property or Property no longer useful in the business out, and which is disposed of the applicable Loan Party; provided, that (i) such Disposition could not reasonably be expected to materially adversely affect the Project, any of the Mortgaged Properties or any of the Collateral, (ii) to the extent such Property is Collateral, prior to such Disposition any such Property shall be replaced with other Property of (A) substantially equal or greater utility and similar use and (B) either (x) a value at least substantially equal to that of the replaced Property when first acquired or (y) substantially equal or greater quality and, if applicable, prestige and caliber as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and (iii) to the extent such Property is Collateral, the applicable Loan Party shall subject such replacement property to the Lien of the Security Documents in favor of the Lenders of at least the same priority as the Property so replaced and otherwise in compliance with the Borrower Security Agreement and the Aircraft Security Agreement, as applicable;
(b) the Disposition of Cash or Cash Equivalents or Permitted Securities (in each case in transactions otherwise permitted hereunder), Investments permitted pursuant to Section 7.8, inventory (in the ordinary course of business) and receivables (in connection with the collection thereof and otherwise as customary in gaming operations of the type conducted by the Loan Parties);
(c) Dispositions permitted by Section 7.4 (including the Disposition of Capital Stock of Loan Parties pursuant to Section 7.4(b));
(d) the sale or issuance of any Loan Party's Capital Stock (other than Disqualified Stock) to its direct parent that is a Loan Party in furtherance of Investments permitted pursuant to Section 7.8(e);
(e) Dispositions of Property having a fair market value not in excess of $5,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year following the Completion Date; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; (ii) the sole consideration received shall be cash; and (iii) to the extent such Asset Sales relate to the Collateral, the proceeds sale of such Asset Sales shall be applied to either (A) the prepayment of the Loans pursuant to Section 3.1(a) or (B) the acquisition of assets which shall become a Substitute Item or Substitute Items pursuant to and in accordance with Section 4.7 of the Borrower Security Agreement;
(f) subject to Section 4.2 of the Borrower Security Agreement, the Borrower may enter into any leases with respect to any Item of Equipment, and subject to Section 4.2 of the Aircraft Security Agreement, the Aircraft Trustee, or World Travel pursuant to the Aircraft Operating Agreement, may enter into any lease with respect to the Aircraft, and Valvino may enter into any commercial office space leases with respect to the Phase II Land Building;
(g) (i) any Loan Party may dedicate space within the Project for the purpose of constructing (A) a mass transit system, (B) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicle traffic, (C) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to and in furtherance of the development, construction and operation of the Project; provided, that in each case such dedication does not materially impair or interfere in the use or operation of the Project or any Loan Party or materially detract from the value of the Property subject thereto and (ii) the exchange of real property between Valvino and ▇▇▇▇▇ County, Nevada, pursuant to which each such party shall transfer to each other fee ownership in real property having approximately equal fair market values; provided, that (A) in no event shall Valvino transfer more than an aggregate amount of 40,000 square feet of real property pursuant to this clause (ii), (B) Valvino shall take such actions as required pursuant to Sections 6.10 and 7.26 of the Wynn Credit Agreement with respect to any real property acquired pursuant to this clause (ii) and (C) such exchange of real property could not reasonably be expected to materially and adversely affect or interfere with the Permitted Business of any Loan Party or have a material adverse effect on the Casino Land, the Golf Course Land or the Phase II Land;
(h) (x) the Loan Parties may license trademarks and trade names inventory in the ordinary course of business and, in any event, Wynn Resort Holdings may license to Wynn Resorts, for less than fair market value, any or all Intellectual Property in or relating to the name "Wynn Resorts" (including, without limitation, any and all Intellectual Property identified in subparts (a)(12), (a)(14)-(19), (b)(1), and (c) of Part IX of Schedule 4.9(b)) (collectively, the "Wynn Resorts IP") and (y) ▇▇▇▇ Resorts Holdings may transfer to Wynn Resorts, for less than fair market value, any or all of the Wynn Resorts IP (provided, that all of the Wynn Resorts IP shall be transferred by ▇▇▇▇ Resorts Holdings to Wynn Resorts as soon as is practicable after the Document Closing Datebusiness;
(iiii) the incurrence for sales or disposition of Liens permitted under Section 7.3, provided that any leases assets other than those permitted pursuant to Section 7.3(icontemplated by the Asset Sale Events (including accounts receivables) by the Borrower after the date hereof; provided however, that, (whether A) such sale or not constituting Permitted Liens) other disposition shall be permitted only to made for fair sale value on an NY3 - 402471.08 arm's-length basis, (B) at least seventy-five percent (75%) of the extent provided in subsection (f) above and the last paragraph of this Section 7.5;
(j) the applicable Golf Course Land Owner(s) purchase price therefore shall be permitted to Dispose paid in cash and such cash portion of the ▇▇▇▇ Home Site Land to ▇▇. ▇▇▇▇, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition, and (ii) such disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ concurrently consent to such Disposition;
(k) the Golf Course Land Owner(s) purchase price shall be permitted to Dispose of the Golf Course Land and in connection therewith the applicable Loan Parties shall be permitted to Dispose of their ownership in the Capital Stock of Desert Inn Water and Desert Inn Improvement and the DIIC Water Permits payable at (other than the DIIC Casino Water Permit), and the Lenders hereby consent to such Dispositions, on the conditions that (ior prior to) no Default or Event of Default has occurred and is continuing at the time of such Dispositions and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(l) the applicable Golf Course Land Owner(s) shall be permitted to Dispose of the Home Site Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (iiC) the Borrower uses the net cash proceeds for general corporate purposes (including debt retirement or working capital purposes);
(iv) that the Borrower may cancel or make changes or alterations in or substitutions for any and all easements, servitudes, rights of way and similar rights or interests, in each case in the ordinary course of business;
(v) that the Borrower may grant easements, ground leases or rights-of-way in, upon, over or across property or rights-of-way, provided such grant shall not materially impair the use of the property or rights-of-way for the purposes for which such property or rights-of-way are held, in each case in the ordinary course of business;
(vi) for operating leases entered into ordinary course of business;
(vii) for any Disposition of Property that is Disposed in a sale-leaseback transaction entered into in connection with a payment-in-lieu-of-taxes arrangement pursuant to the Revised Statutes of Missouri, provided that if such Disposition is permitted pursuant with respect to Collateral, such arrangement expressly allows the Property to be subject to the terms of Liens under the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such DispositionPledge Agreements;
(mviii) Valvino shall be permitted to Dispose for any Disposition required by a Requirement of the Phase II Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(n) any Event of Eminent Domain, provided, that the requirements of Section 8.1 are complied with in connection therewithLaw; and
(o) Dispositions of Items of Equipment which are replaced pursuant to Section 4.7 of the Borrower Security Agreement.
(p) the Disposition of the Aircraft so long as
(i) the consideration received for the Aircraft shall be in an amount at least equal to the fair market value thereof,
(ii) the sole consideration received shall be cash, and
(iii) either
(A) the aggregate Net Disposition Proceeds from such Disposition are paid to the Collateral Agent and applied to the prepayment of the Loans used to refinance the Aircraft pursuant to Section 3.1(a) or
(1ix) World Travel or Dispositions contemplated by the Aircraft Trustee simultaneously acquires a Replacement Aircraft Asset Sale Events (in which becomes subject to case, the Aircraft Security Agreement pursuant to Net Cash Proceeds therefrom will be applied as provided in Section 4.7(c) thereof,
(2) the aggregate Net Disposition Proceeds from such Disposition are applied to the acquisition of the Replacement Aircraft and the remaining funds required for the acquisition of the Replacement Aircraft are obtained from only the following sources:4.02).
Appears in 1 contract
Sources: Credit Agreement (Aquila Inc)
Limitation on Disposition of Property. Dispose of any of its Property or Property (including, without limitation, receivables and leasehold interests)Property, whether now owned or hereafter acquired, or or, in the case of any Class I Restricted Subsidiary, issue or sell any shares of such Class I Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition for fair market value of obsolete, surplus or worn out property in the ordinary course of business, including the sale of parcels of real property adjacent to parcels being used in the Borrower’s or any Class I Restricted Subsidiary’s business, which adjacent parcels are not necessary in the business of the Borrower or such Class I Restricted Subsidiary;
(i) the Disposition of inventory in the ordinary course of business of obsolete or worn out Property or Property no longer useful in the business of the applicable Loan Party; provided, that (i) such Disposition could not reasonably be expected to materially adversely affect the Project, any of the Mortgaged Properties or any of the Collateral, and (ii) to the extent such Property is Collateralgranting of leases, prior to such Disposition any such Property shall be replaced with other Property licenses, subleases and sublicenses of real and personal property (Aincluding Intellectual Property) substantially equal or greater utility and similar use and (B) either (x) a value at least substantially equal to that of the replaced Property when first acquired or (y) substantially equal or greater quality and, if applicable, prestige and caliber as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and (iii) to the extent such Property is Collateral, the applicable Loan Party shall subject such replacement property to the Lien of the Security Documents in favor of the Lenders of at least the same priority as the Property so replaced and otherwise in compliance with the Borrower Security Agreement and the Aircraft Security Agreement, as applicable;
(b) the Disposition of Cash or Cash Equivalents or Permitted Securities (in each case in transactions otherwise permitted hereunder), Investments permitted pursuant to Section 7.8, inventory (in the ordinary course of business) business and receivables (in connection which do not materially interfere with the collection thereof and otherwise as customary in gaming operations business of the type conducted by the Loan Parties)Borrower and its Subsidiaries;
(c) Dispositions permitted by Section 7.4 7.4(a), (including the Disposition of Capital Stock of Loan Parties pursuant to Section 7.4(b))b) and (d) and Sections 7.6 and 7.8;
(d) the Disposition of any Property to, or the sale or issuance of any Loan Party's Subsidiary’s Capital Stock (other than Disqualified Stock) to its direct parent that is a Loan Party in furtherance of Investments permitted pursuant to Section 7.8(e)to, the Borrower or any Subsidiary Guarantor;
(e) Dispositions of Property having a fair market value not in excess of $5,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year following the Completion Date; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; (ii) the sole consideration received shall be cash; and (iii) to the extent such Asset Sales relate to the Collateral, the proceeds of such Asset Sales shall be applied to either (A) the prepayment of the Loans pursuant to Section 3.1(a) or (B) the acquisition of assets which shall become a Substitute Item or Substitute Items pursuant to and in accordance with Section 4.7 of the Borrower Security AgreementRecovery Event;
(f) subject to Section 4.2 an exchange or “swap” of fixed, tangible assets of the Borrower Security Agreementor any of its Class I Restricted Subsidiaries for the assets of a Person other than the Borrower and its Class I Restricted Subsidiaries; provided that, (i) the assets received by the Borrower or such Class I Restricted Subsidiary will be used or useful in a similar line of business that the Borrower and its Class I Restricted Subsidiaries are engaged in on the date of this Agreement or that are reasonably related thereto, (ii) the Borrower or such Class I Restricted Subsidiary receives reasonably equivalent value for such assets, such equivalent value to be demonstrated to the reasonable satisfaction of the Administrative Agent (or, in the case of an exchange or “swap” with a non-Affiliate of any Loan Party, as determined by the board of directors of the Borrower or such Class I Restricted Subsidiary, as the case may be) and (iii) if the asset which is the subject of such exchange or “swap” constituted Collateral hereunder, the Borrower may enter into any leases with respect or such Class I Restricted Subsidiary shall take such action necessary to any Item create and perfect the security interest of Equipment, and subject the Administrative Agent for the benefit of the Secured Parties in the assets received by the Borrower or such Class I Subsidiary in such exchange or “swap” pursuant to Section 4.2 of the Aircraft Security Agreement6.9, provided further that, the Aircraft Trustee, fair market value of all such assets exchanged or World Travel pursuant to “swapped” after the Aircraft Operating Agreement, may enter into any lease with respect to Restatement Closing Date shall not exceed $150,000,000 in the Aircraft, and Valvino may enter into any commercial office space leases with respect to the Phase II Land Buildingaggregate;
(g) (i) any Loan Party may dedicate space within the Project for issuance and sale of directors’ qualifying shares and shares required by applicable law to be held by a Person other than the purpose of constructing (A) a mass transit system, (B) a pedestrian bridge over Borrower or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicle traffic, (C) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to and in furtherance of the development, construction and operation of the Project; provided, that in each case such dedication does not materially impair or interfere in the use or operation of the Project or any Loan Party or materially detract from the value of the Property subject thereto and (ii) the exchange of real property between Valvino and ▇▇▇▇▇ County, Nevada, pursuant to which each such party shall transfer to each other fee ownership in real property having approximately equal fair market values; provided, that (A) in no event shall Valvino transfer more than an aggregate amount of 40,000 square feet of real property pursuant to this clause (ii), (B) Valvino shall take such actions as required pursuant to Sections 6.10 and 7.26 of the Wynn Credit Agreement with respect to any real property acquired pursuant to this clause (ii) and (C) such exchange of real property could not reasonably be expected to materially and adversely affect or interfere with the Permitted Business of any Loan Party or have a material adverse effect on the Casino Land, the Golf Course Land or the Phase II Landits Class I Restricted Subsidiaries;
(h) the issuance and sale of minority interests in joint ventures, partnerships and other entities to third parties to the extent that the proceeds of such sale are reinvested in the related joint venture, partnership or other entity;
(xi) any Disposition of digital cinema equipment in connection with a Digital Cinema Equipment Lease with DCIP or Digital Projector Financing;
(j) a sale or other Disposition of the type described in EITF 97-10 in connection with a sale and leaseback transaction otherwise permitted hereby;
(k) the Loan Parties may license trademarks and trade names in Disposition of any real property subject to a sale contract on the ordinary course of business and, in any event, Wynn Resort Holdings may license to Wynn Resorts, for less than fair market value, any or all Intellectual Property in or relating to the name "Wynn Resorts" (including, without limitation, any and all Intellectual Property identified in subparts (a)(12Restatement Closing Date as described on Schedule 7.5(k), (a)(14)-(19), (b)(1), and (c) of Part IX of Schedule 4.9(b)) (collectively, the "Wynn Resorts IP") and (y) ▇▇▇▇ Resorts Holdings may transfer to Wynn Resorts, for less than fair market value, any or all of the Wynn Resorts IP (provided, that all of the Wynn Resorts IP shall be transferred by ▇▇▇▇ Resorts Holdings to Wynn Resorts as soon as is practicable after the Document Closing Date;
(i) the incurrence of Liens permitted under Section 7.3, provided that any leases other than those permitted pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5;
(j) the applicable Golf Course Land Owner(s) shall be permitted to Dispose Disposition of the ▇▇▇▇ Home Site Land to ▇▇. ▇▇▇▇Borrower’s or any Class I Restricted Subsidiary’s minority interest in National CineMedia, and the Lenders hereby consent to LLC, NCM Holdings or any holding company holding any such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition, and interest and/or (ii) such disposition is permitted Disposition of any interest in DCIP, any Unrestricted Subsidiary, any joint venture or any interest acquired pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ concurrently consent to such Disposition;
(k) the Golf Course Land Owner(s) shall be permitted to Dispose of the Golf Course Land and a Permitted Business Investment, and, in connection therewith the applicable Loan Parties shall be permitted to Dispose of their ownership in the Capital Stock of Desert Inn Water and Desert Inn Improvement and the DIIC Water Permits (other than the DIIC Casino Water Permiteach case under this Section 7.5(l), and the Lenders hereby consent to such Dispositions, on the conditions that (i) no Default or Event subsequent Disposition of Default has occurred and is continuing at the time of such Dispositions and (ii) such Disposition is permitted any consideration received pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(l) the applicable Golf Course Land Owner(s) shall be permitted to Dispose of the Home Site Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(m) Valvino shall be the Disposition of cash and Cash Equivalents permitted to Dispose of the Phase II Land, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Dispositionunder this Agreement;
(n) Dispositions of Property pursuant to contracts between the Borrower and the U.S. Department of Justice or the Federal Trade Commission related to any Event of Eminent Domain, provided, that the requirements of Section 8.1 are complied with in connection therewithPermitted Acquisition; and
(o) Dispositions of Items of Equipment which are replaced pursuant to Section 4.7 of the Borrower Security Agreement.
(p) the Disposition after the Restatement Closing Date of the Aircraft so long as
(i) the consideration received for the Aircraft shall be in an amount at least equal to the other assets having a fair market value thereof,
(ii) not to exceed $500,000,000 in the sole consideration received shall be cash, and
(iii) either
(A) the aggregate Net Disposition Proceeds from such Disposition are paid to the Collateral Agent and applied to the prepayment of the Loans used to refinance the Aircraft aggregate. Certain Dispositions pursuant to this Section 3.1(a) or
(1) World Travel or the Aircraft Trustee simultaneously acquires a Replacement Aircraft which becomes subject 7.5 may give rise to the Aircraft Security Agreement pursuant to mandatory prepayment obligations under Section 4.7(c) thereof,
(2) the aggregate Net Disposition Proceeds from such Disposition are applied to the acquisition of the Replacement Aircraft and the remaining funds required for the acquisition of the Replacement Aircraft are obtained from only the following sources:2.10(b).
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property or Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or issue or sell any shares of Capital Stock to any Person, except:
(a) the Disposition for fair market value in the ordinary course of business of obsolete or worn out Property or Property no longer useful in the business of the applicable Loan Party; provided, that (i) such Disposition could not reasonably be expected to materially adversely affect the Project, any of the Mortgaged Properties or any of the Collateral, (ii) to the extent such Property is Collateral, prior to such Disposition any such Property shall be replaced with other Property of (A) substantially equal or greater utility and similar use and (B) either (x) a value at least substantially equal to that of the replaced Property when first acquired or (y) substantially equal or greater quality and, if applicable, prestige and caliber as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and (iii) to the extent such Property is Collateral, the applicable Loan Party shall subject such replacement property to the Lien of the Security Documents in favor of the Lenders of at least the same priority as the Property so replaced and otherwise in compliance with the Borrower Security Agreement and the Aircraft Security Agreement, as applicableParties;
(b) the Disposition of Cash cash or Cash Equivalents or Permitted Securities (in each case in transactions otherwise permitted hereunder)cash equivalents, Investments permitted pursuant to Section 7.8, inventory (in the ordinary course of businessbusiness (other than the sale of condominiums, time shares, integral ownerships or other similar interests)) and receivables (in connection with the collection thereof and otherwise as customary in gaming operations of the type conducted by the Loan Parties);
(c) Dispositions permitted by Section 7.4 (including the Disposition of Capital Stock of Loan Parties pursuant to Section 7.4(b))7.4;
(d) the sale or issuance of any Loan Party's ’s Capital Stock (other than Disqualified Stock) to its direct parent that is a Loan Party in furtherance of Investments permitted pursuant to Section 7.8(e)parent;
(e) Dispositions of Property having a fair market value not in excess of $5,000,000 40,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year following the Completion DateYear; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; and (ii) the sole consideration received therefor shall be cash; and (iii) to the extent such Asset Sales relate to the Collateral, the proceeds of such Asset Sales shall be applied to either (A) the prepayment of the Loans pursuant to Section 3.1(a) at least 75% in cash or (B) the acquisition of assets which shall become a Substitute Item or Substitute Items pursuant to and in accordance with Section 4.7 of the Borrower Security Agreementcash equivalents;
(f) subject to the last paragraph of this Section 4.2 of the Borrower Security Agreement7.5, the Borrower may enter into any leases with respect to any Item of Equipment, and subject to Section 4.2 of space on or within the Aircraft Security Agreement, the Aircraft Trustee, or World Travel pursuant to the Aircraft Operating Agreement, may enter into any lease with respect to the Aircraft, and Valvino may enter into any commercial office space leases with respect to the Phase II Land BuildingProject;
(g) (i) any Loan Party may dedicate the dedication of space within the Project for the purpose or other Dispositions of Property in connection with and in furtherance of constructing (Ai) a mass transit system, (Bii) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicle vehicular traffic, (Ciii) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to and in furtherance of the development, construction and operation of the Project; provided, that (A) in each case such dedication does or other Dispositions are in furtherance of, and do not materially impair or interfere in the use or operation of operations (or intended use or operations) of, the Project or any Loan Party or materially detract from the value of the Property subject thereto and (ii) the exchange of real property between Valvino and ▇▇▇▇▇ County, Nevada, pursuant to which each such party shall transfer to each other fee ownership in real property having approximately equal fair market values; provided, that (AB) in no event shall Valvino transfer the Loan Parties in the aggregate Dispose of (other than by way of dedication to a Governmental Authority) more than an aggregate amount five acres of 40,000 square feet of real property Real Estate pursuant to this clause (iiSection 7.5(g), (B) Valvino shall take such actions as required pursuant to Sections 6.10 and 7.26 of the Wynn Credit Agreement with respect to any real property acquired pursuant to this clause (ii) and (C) such exchange of real property could not reasonably be expected to materially and adversely affect or interfere with the Permitted Business of any Loan Party or have a material adverse effect on the Casino Land, the Golf Course Land or the Phase II Land;
(h) any Loan Party may (xi) the Loan Parties may license trademarks and trademarks, trade names and other Intellectual Property in the ordinary course of business and, and not interfering in any eventmaterial respect with the ordinary conduct of the business of the Loan Parties and (ii) abandon any trademarks, Wynn Resort Holdings may license to Wynn Resorts, for less than fair market value, any trade names or all other Intellectual Property no longer useful in or relating to the name "Wynn Resorts" (including, without limitation, any and all Intellectual Property identified in subparts (a)(12), (a)(14)-(19), (b)(1), and (c) of Part IX of Schedule 4.9(b)) (collectively, the "Wynn Resorts IP") and (y) ▇▇▇▇ Resorts Holdings may transfer to Wynn Resorts, for less than fair market value, any or all business of the Wynn Resorts IP (provided, that all of the Wynn Resorts IP shall be transferred by ▇▇▇▇ Resorts Holdings to Wynn Resorts as soon as is practicable after the Document Closing DateLoan Parties;
(i) the incurrence of Liens permitted under Section 7.3; provided, provided that any leases other than those permitted pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5;
(j) the applicable Golf Course Land Owner(s) shall be permitted to Dispose Disposition of the ▇▇▇▇ Home Site Land to or as directed by ▇▇. ▇▇▇▇, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition, and (ii) such disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ concurrently consent to such Disposition;
(k) the Golf Course Land Owner(s) shall be permitted to Dispose of the Golf Course Land and in connection therewith the applicable Loan Parties shall be permitted to Dispose of their ownership in the Capital Stock of Desert Inn Water and Desert Inn Improvement and the DIIC Water Permits (other than the DIIC Casino Water Permit), and the Lenders hereby consent to such Dispositions, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Dispositions and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(l) the applicable Golf Course Land Owner(s) shall be permitted to Dispose of the Home Site Land, and the Lenders hereby consent to such Disposition, on the conditions provided that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) the cash purchase price paid by ▇▇. ▇▇▇▇ or his designee for the ▇▇▇▇ Home Site Land is in immediately available funds (which, if received by a Person other than the Borrower, shall be held by such Person in trust for the benefit of the Borrower and paid to the Borrower no later than one Business Day after receipt of such funds) and equal to or greater than the fair market value of the ▇▇▇▇ Home Site Land, as determined in good faith by the Loan Parties, (iii) the Mortgaged Properties affected by the Disposition of the ▇▇▇▇ Home Site Land constitute separate legal parcels under NRS, Chapter 278, (iv) the Borrower shall have certified that construction of ▇▇. ▇▇▇▇’▇ personal residence on the ▇▇▇▇ Home Site could not reasonably be expected to materially interfere with the use or operations of the Golf Course and could not otherwise reasonably be expected to impair the overall value of the Project, (v) appropriate reconveyance documentation in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent shall have been prepared reflecting the release of the ▇▇▇▇ Home Site Land from the Lien of the applicable Mortgage(s) and such documentation shall have been recorded at the ▇▇▇▇▇ County, Nevada Recorder’s Office, (vi) the Borrower shall have delivered to the Administrative Agent and the Collateral Agent an endorsement, or a commitment by the Title Insurer to issue an endorsement, to the Title Policy, in either case in form and substance reasonably satisfactory to the Administrative Agent, insuring that the execution and recordation of the reconveyance documentation described in clause (v) above does not impair the Lien of the Mortgage(s) affected by such reconveyance documentation and (vii) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the Project, ▇▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such water permits to the Golf Course Land or the water features of the Project, as the case may be, are located on the ▇▇▇▇ Home Site Land. Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the Loan Parties such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably requested by the Loan Parties to release the Liens granted for the benefit of the Secured Parties in the ▇▇▇▇ Home Site Land, and to effectuate such Disposition; provided, that an instrument reasonably acceptable to the Administrative Agent is recorded against the ▇▇▇▇ Home Site Land to the effect that until the earlier of (x) the Disposition of the Golf Course Land in accordance with Section 7.5(k) or (y) the payment in full of the Obligations, only a personal residence for ▇▇. ▇▇▇▇ will be developed on the ▇▇▇▇ Home Site Land, the provisions of such instrument to burden the ▇▇▇▇ Home Site Land for the benefit of the Golf Course Land;
(k) Disposition of the Golf Course Land and/or, at the option of the Loan Parties, Disposition of the Capital Stock of ▇▇▇▇ Golf; provided, that the Golf Course Release Conditions are satisfied or (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) such Disposition is permitted pursuant occurs on or after the last day of the second full fiscal quarter of the Borrower occurring after the Phase II Completion Date, (iii) at the time of such Disposition, the Consolidated Leverage Ratio (calculated in accordance with Section 1.3(b)) for the period of four full consecutive fiscal quarters ending on each of the two most recent Quarterly Dates was 5.0 to 1.0 or less (provided, that, in each such case, there shall be excluded from such calculations of the Consolidated Leverage Ratio the Consolidated EBITDA, if any, derived from the Golf Course during any applicable period) and (iv) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the terms water features of the Wynn Credit Agreement or Project (other than the ▇▇▇▇ Golf Course), ▇▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such water permits to the water features of the Project (other than the Golf Course) are located on the Golf Course Land (or otherwise concurrently consent ▇▇▇▇ Golf shall have transferred (previously or in connection with such Disposition) at no cost to the Borrower such easements as are necessary for the Borrower to access such Points of Diversion, own and operate such ▇▇▇▇▇ and transport such water to the water features of the Project and the Borrower shall have taken all actions required pursuant to Section 6.10 with respect to any Property thereby acquired). Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the applicable Loan Parties such documents and instruments, including UCC-3 termination statements, deeds of reconveyance and certificates of Capital Stock, all as may be reasonably requested by the Loan Parties to release the Liens granted for the benefit of the Secured Parties in the Golf Course Land and/or ▇▇▇▇ Golf, as applicable, and to effectuate such Disposition;
(ml) Valvino shall be permitted to Dispose Disposition of the Phase II Home Site Land, and the Lenders hereby consent to such Disposition, on the conditions ; provided that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) such Disposition is occurs on or after the last day of the fourth full fiscal quarter of the Borrower occurring after the Phase II Completion Date, (iii) at the time of such Disposition, the Consolidated EBITDA of the Borrower for the most recent period of four full consecutive fiscal quarters of the Borrower was equal to or greater than $325,000,000, (iv) the Mortgaged Properties (other than the Home Site Land) affected by the Disposition of the Home Site Land constitute separate legal parcels under Nevada Revised Statutes, Chapter 278, (v) the Borrower shall have certified that construction of permitted pursuant improvements on the Home Site Land could not reasonably be expected to materially interfere with the use or operations of the Golf Course and could not otherwise reasonably be expected to materially impair the overall value of the Project, (vi) appropriate reconveyance documentation in form and substance reasonably satisfactory to the terms Administrative Agent and the Collateral Agent shall have been prepared reflecting the release of the Wynn Credit Agreement or Home Site Land from the ▇▇▇▇ Lien of the applicable Mortgage(s) and such documentation shall have been recorded at the ▇▇▇▇▇ County, Nevada Recorder’s Office, (vii) the Borrower shall have delivered to the Administrative Agent and the Collateral Agent an endorsement, or a commitment by the Title Insurer to issue an endorsement, to the Title Policy, in either case in form and substance reasonably satisfactory to the Administrative Agent, insuring that the execution and recordation of the reconveyance documentation described in clause (vi) above does not impair the Lien of the Mortgage(s) affected by such reconveyance documentation and (viii) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise concurrently consent utilized or expected to be utilized with respect to the water features of the Project or the Golf Course, ▇▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such water permits to the Golf Course Land or the water features of the Project, as the case may be, are located on the Home Site Land (or otherwise ▇▇▇▇ Golf shall have transferred or reserved for the benefit of the Golf Course Land (previously or in connection with such Disposition) at no cost to the Loan Parties such easements as are necessary for the Loan Parties to access such Points of Diversion, own and operate such ▇▇▇▇▇ and transport such water to the water features of the Project and/or the Golf Course and the Loan Parties shall have taken all actions required pursuant to Section 6.10 with respect to any Property thereby acquired). Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the Loan Parties such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably requested by the Loan Parties to release the Liens for the benefit of the Secured Parties in the Home Site Land, and to effectuate such Disposition; provided, that an instrument reasonably acceptable to the Administrative Agent is recorded against the Home Site Land to the effect that until the earlier of (x) the Disposition of the Golf Course Land in accordance with Section 7.5(k) or (y) the payment in full of the Obligations, only residential housing and other non-gaming related developments will be developed on the Home Site Land, the provisions of such instrument to burden the Home Site Land for the benefit of the Golf Course Land;
(m) Dispositions of all or a portion of the ▇▇▇▇▇ Land; provided that (i) any such Disposition shall be in furtherance of the development, construction and operation of the Project (including, without limitation, the construction, development and operation of employee parking facilities and other ancillary facilities) on the ▇▇▇▇▇ Land and/or on adjacent Property acquired or to be acquired by any Loan Party pursuant to the transaction or series of transactions related to such Disposition, (ii) any such Disposition shall be at fair market value (after taking into consideration any cash and non-cash consideration received for such Disposition from any transaction or series of transactions related to such Disposition), (iii) any Net Cash Proceeds of any such Disposition that are not reinvested or otherwise utilized in furtherance of the matters described in clause (i) above within 360 days after such Disposition shall be deemed Net Cash Proceeds and shall be required to be applied to the prepayment of the Obligations in accordance with Section 2.12(b) (without any right of reinvestment thereunder) and (iv) the Loan Parties shall have taken all actions required pursuant to Section 6.10 with respect to any Property acquired in connection with any transaction or series of transactions related to any such Disposition;
(n) any Event of Eminent Domain, ; provided, that the requirements of Section 8.1 are complied Loan Parties otherwise comply with in connection therewithSections 2.12(c) and 2.24, as applicable; and
(o) Dispositions by any Loan Party to any other Loan Party (other than Capital Corp. or ▇▇▇▇ Golf (except with respect to Dispositions, the proceeds of Items of Equipment which are replaced necessary for the organizational maintenance of Capital Corp. or ▇▇▇▇ Golf); provided, that in each case each Loan Party shall have taken all actions required pursuant to Section 4.7 6.10 with respect to any Property acquired by it pursuant to this clause (o); Notwithstanding the foregoing provisions of the Borrower Security Agreement.
this Section 7.5, subsection (pf) the Disposition of the Aircraft so long as
(i) the consideration received for the Aircraft above shall be in an amount at least equal to the fair market value thereof,
(ii) the sole consideration received shall be cash, and
(iii) either
(A) the aggregate Net Disposition Proceeds from such Disposition are paid to the Collateral Agent and applied to the prepayment of the Loans used to refinance the Aircraft pursuant to Section 3.1(a) or
(1) World Travel or the Aircraft Trustee simultaneously acquires a Replacement Aircraft which becomes subject to the Aircraft Security Agreement pursuant additional provisos that: (a) no Event of Default shall exist and be continuing at the time of such transaction, lease or sublease or would occur as a result of entering into such transaction, lease or sublease (or immediately after any renewal or extension thereof at the option of the Borrower), (b) such transaction, lease or sublease could not reasonably be expected to Section 4.7(cmaterially interfere with, or materially impair or detract from, the operation of the Project, (c) thereof,
no gaming, hotel or casino operations (2other than the operation of arcades and games for minors) may be conducted on any space that is subject to such transaction, lease or sublease other than by and for the benefit of the Loan Parties and (d) no lease or sublease may provide that a Loan Party subordinate its fee, condominium or leasehold interest to any lessee or any party financing any lessee; provided, that (x) the aggregate Net Disposition Proceeds Administrative Agent on behalf of the Lenders shall agree to provide the tenant under any such lease or sublease with a subordination, non-disturbance and attornment agreement and (y) unless the Administrative Agent shall otherwise waive such requirement, with respect to any such lease having a term of five years or more and reasonably anticipated annual rents (whether due to base rent, fixed rents, reasonably anticipated percentage rents or other reasonably anticipated rental income from such Disposition are applied lease or sublease) in excess of $500,000 (other than leases solely between Loan Parties), the applicable Loan Party(ies) shall enter into, and cause the tenant under any such lease or sublease to enter into with the acquisition Administrative Agent for the benefit of the Replacement Aircraft Lenders, a subordination, non-disturbance and attornment agreement, in each case substantially in the remaining funds required for form of Exhibit N hereto with such changes as the acquisition of Administrative Agent may approve, which approval shall not be unreasonably withheld, conditioned or delayed (provided, that such changes do not materially and adversely affect the Replacement Aircraft are obtained from only the following sources:se
Appears in 1 contract
Limitation on Disposition of Property. Dispose of any of its Property or Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or issue or sell any shares of Capital Stock to any Person, except:
(a) the Disposition for fair market value in the ordinary course of business of obsolete or worn out Property or Property no longer useful in the business of the applicable Loan Party; provided, that (i) such Disposition could not reasonably be expected to materially adversely affect the Project, any of the Mortgaged Properties or any of the Collateral, (ii) to the extent such Property is Collateral, prior to such Disposition any such Property shall be replaced with other Property of (A) substantially equal or greater utility and similar use and (B) either (x) a value at least substantially equal to that of the replaced Property when first acquired or (y) substantially equal or greater quality and, if applicable, prestige and caliber as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and (iii) to the extent such Property is Collateral, the applicable Loan Party shall subject such replacement property to the Lien of the Security Documents in favor of the Lenders of at least the same priority as the Property so replaced and otherwise in compliance with the Borrower Security Agreement and the Aircraft Security Agreement, as applicableParties;
(b) the Disposition of Cash cash or Cash Equivalents or Permitted Securities (in each case in transactions otherwise permitted hereunder)cash equivalents, Investments permitted pursuant to Section 7.8, inventory (in the ordinary course of businessbusiness (other than the sale of condominiums, time shares, integral ownerships or other similar interests)) and receivables (in connection with the collection thereof and otherwise as customary in gaming operations of the type conducted by the Loan Parties);
(c) Dispositions permitted by Section 7.4 (including the Disposition of Capital Stock of Loan Parties pursuant to Section 7.4(b))7.4;
(d) the sale or issuance of any Loan Party's ’s Capital Stock (other than Disqualified Stock) to its direct parent that is a Loan Party in furtherance of Investments permitted pursuant to Section 7.8(e)parent;
(e) Dispositions of Property having a fair market value not in excess of $5,000,000 40,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year following the Completion DateYear; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; and (ii) the sole consideration received therefor shall be cash; and (iii) to the extent such Asset Sales relate to the Collateral, the proceeds of such Asset Sales shall be applied to either (A) the prepayment of the Loans pursuant to Section 3.1(a) at least 75% in cash or (B) the acquisition of assets which shall become a Substitute Item or Substitute Items pursuant to and in accordance with Section 4.7 of the Borrower Security Agreementcash equivalents;
(f) subject to the last paragraph of this Section 4.2 of the Borrower Security Agreement7.5, the Borrower may enter into any leases with respect to any Item of Equipment, and subject to Section 4.2 of space on or within the Aircraft Security Agreement, the Aircraft Trustee, or World Travel pursuant to the Aircraft Operating Agreement, may enter into any lease with respect to the Aircraft, and Valvino may enter into any commercial office space leases with respect to the Phase II Land BuildingProject;
(g) (i) any Loan Party may dedicate the dedication of space within the Project for the purpose or other Dispositions of Property in connection with and in furtherance of constructing (Ai) a mass transit system, (Bii) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicle vehicular traffic, (Ciii) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to and in furtherance of the development, construction and operation of the Project; provided, that (A) in each case such dedication does or other Dispositions are in furtherance of, and do not materially impair or interfere in the use or operation of operations (or intended use or operations) of, the Project or any Loan Party or materially detract from the value of the Property subject thereto and (ii) the exchange of real property between Valvino and ▇▇▇▇▇ County, Nevada, pursuant to which each such party shall transfer to each other fee ownership in real property having approximately equal fair market values; provided, that (AB) in no event shall Valvino transfer the Loan Parties in the aggregate Dispose of (other than by way of dedication to a Governmental Authority) more than an aggregate amount five acres of 40,000 square feet of real property Real Estate pursuant to this clause (iiSection 7.5(g), (B) Valvino shall take such actions as required pursuant to Sections 6.10 and 7.26 of the Wynn Credit Agreement with respect to any real property acquired pursuant to this clause (ii) and (C) such exchange of real property could not reasonably be expected to materially and adversely affect or interfere with the Permitted Business of any Loan Party or have a material adverse effect on the Casino Land, the Golf Course Land or the Phase II Land;
(h) any Loan Party may (xi) the Loan Parties may license trademarks and trademarks, trade names and other Intellectual Property in the ordinary course of business and, and not interfering in any eventmaterial respect with the ordinary conduct of the business of the Loan Parties and (ii) abandon any trademarks, Wynn Resort Holdings may license to Wynn Resorts, for less than fair market value, any trade names or all other Intellectual Property no longer useful in or relating to the name "Wynn Resorts" (including, without limitation, any and all Intellectual Property identified in subparts (a)(12), (a)(14)-(19), (b)(1), and (c) of Part IX of Schedule 4.9(b)) (collectively, the "Wynn Resorts IP") and (y) ▇▇▇▇ Resorts Holdings may transfer to Wynn Resorts, for less than fair market value, any or all business of the Wynn Resorts IP (provided, that all of the Wynn Resorts IP shall be transferred by ▇▇▇▇ Resorts Holdings to Wynn Resorts as soon as is practicable after the Document Closing DateLoan Parties;
(i) the incurrence of Liens permitted under Section 7.3; provided, provided that any leases other than those permitted pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5;
(j) the applicable Golf Course Land Owner(s) shall be permitted to Dispose Disposition of the ▇▇▇▇ Home Site Land to or as directed by ▇▇. ▇▇▇▇, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition, and (ii) such disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ concurrently consent to such Disposition;
(k) the Golf Course Land Owner(s) shall be permitted to Dispose of the Golf Course Land and in connection therewith the applicable Loan Parties shall be permitted to Dispose of their ownership in the Capital Stock of Desert Inn Water and Desert Inn Improvement and the DIIC Water Permits (other than the DIIC Casino Water Permit), and the Lenders hereby consent to such Dispositions, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Dispositions and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(l) the applicable Golf Course Land Owner(s) shall be permitted to Dispose of the Home Site Land, and the Lenders hereby consent to such Disposition, on the conditions provided that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement cash purchase price paid by ▇▇. ▇▇▇▇ or his designee for the ▇▇▇▇ Home Site Land is in immediately available funds (which, if received by a Person other than the Borrower, shall be held by such Person in trust for the benefit of the Borrower and paid to the Borrower no later than one Business Day after receipt of such funds) and equal to or greater than the fair market value of the ▇▇▇▇ Home Site Land, as determined in good faith by the Loan Parties, (iii) the Mortgaged Properties affected by the Disposition of the ▇▇▇▇ Home Site Land constitute separate legal parcels under NRS, Chapter 278, (iv) the Borrower shall have certified that construction of ▇▇. ▇▇▇▇’▇ personal residence on the ▇▇▇▇ Home Site could not reasonably be expected to materially interfere with the use or operations of the Golf Course and could not otherwise reasonably be expected to impair the overall value of the Project, (v) appropriate reconveyance documentation in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent shall have been prepared reflecting the release of the ▇▇▇▇ Home Site Land from the Lien of the applicable Mortgage(s) and such documentation shall have been recorded at the ▇▇▇▇▇ County, Nevada Recorder’s Office, (vi) the Borrower shall have delivered to the Administrative Agent and the Collateral Agent an endorsement, or a commitment by the Title Insurer to issue an endorsement, to the Title Policy, in either case in form and substance reasonably satisfactory to the Administrative Agent, insuring that the execution and recordation of the reconveyance documentation described in clause (v) above does not impair the Lien of the Mortgage(s) affected by such reconveyance documentation and (vii) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise concurrently consent utilized or expected to be utilized with respect to the Project, ▇▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such water permits to the Golf Course Land or the water features of the Project, as the case may be, are located on the ▇▇▇▇ Home Site Land. Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the Loan Parties such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably requested by the Loan Parties to release the Liens granted for the benefit of the Secured Parties in the ▇▇▇▇ Home Site Land, and to effectuate such Disposition; provided, that an instrument reasonably acceptable to the Administrative Agent is recorded against the ▇▇▇▇ Home Site Land to the effect that until the earlier of (x) the Disposition of the Golf Course Land in accordance with Section 7.5(k) or (y) the payment in full of the Obligations, only a personal residence for ▇▇. ▇▇▇▇ will be developed on the ▇▇▇▇ Home Site Land, the provisions of such instrument to burden the ▇▇▇▇ Home Site Land for the benefit of the Golf Course Land;
(mk) Valvino shall be permitted to Dispose Disposition of the Phase II LandGolf Course Land and/or, and at the Lenders hereby consent to such Dispositionoption of the Loan Parties, on Disposition of the conditions Capital Stock of ▇▇▇▇ Golf; provided, that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) such Disposition is permitted pursuant occurs on or after the last day of the second full fiscal quarter of the Borrower occurring after the Phase II Completion Date, (iii) at the time of such Disposition, the Consolidated Leverage Ratio (calculated in accordance with Section 1.3(b)) for the period of four full consecutive fiscal quarters ending on each of the two most recent Quarterly Dates was 5.0 to 1.0 or less (provided, that, in each such case, there shall be excluded from such calculations of the Consolidated Leverage Ratio the Consolidated EBITDA, if any, derived from the Golf Course during any applicable period) and (iv) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the terms water features of the Wynn Credit Agreement or Project (other than the ▇▇▇▇ Golf Course), ▇▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such water permits to the water features of the Project (other than the Golf Course) are located on the Golf Course Land (or otherwise concurrently consent ▇▇▇▇ Golf shall have transferred (previously or in connection with such Disposition) at no cost to the Borrower such easements as are necessary for the Borrower to access such Points of Diversion, own and operate such ▇▇▇▇▇ and transport such water to the water features of the Project and the Borrower shall have taken all actions required pursuant to Section 6.10 with respect to any Property thereby acquired). Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the applicable Loan Parties such documents and instruments, including UCC-3 termination statements, deeds of reconveyance and certificates of Capital Stock, all as may be reasonably requested by the Loan Parties to release the Liens granted for the benefit of the Secured Parties in the Golf Course Land and/or ▇▇▇▇ Golf, as applicable, and to effectuate such Disposition;
(l) Disposition of the Home Site Land; provided that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) such Disposition occurs on or after the last day of the fourth full fiscal quarter of the Borrower occurring after the Phase II Completion Date, (iii) at the time of such Disposition, the Consolidated EBITDA of the Borrower for the most recent period of four full consecutive fiscal quarters of the Borrower was equal to or greater than $325,000,000, (iv) the Mortgaged Properties (other than the Home Site Land) affected by the Disposition of the Home Site Land constitute separate legal parcels under Nevada Revised Statutes, Chapter 278, (v) the Borrower shall have certified that construction of permitted improvements on the Home Site Land could not reasonably be expected to materially interfere with the use or operations of the Golf Course and could not otherwise reasonably be expected to materially impair the overall value of the Project, (vi) appropriate reconveyance documentation in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent shall have been prepared reflecting the release of the Home Site Land from the Lien of the applicable Mortgage(s) and such documentation shall have been recorded at the ▇▇▇▇▇ County, Nevada Recorder’s Office, (vii) the Borrower shall have delivered to the Administrative Agent and the Collateral Agent an endorsement, or a commitment by the Title Insurer to issue an endorsement, to the Title Policy, in either case in form and substance reasonably satisfactory to the Administrative Agent, insuring that the execution and recordation of the reconveyance documentation described in clause (vi) above does not impair the Lien of the Mortgage(s) affected by such reconveyance documentation and (viii) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise utilized or expected to be utilized with respect to the water features of the Project or the Golf Course, ▇▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such water permits to the Golf Course Land or the water features of the Project, as the case may be, are located on the Home Site Land (or otherwise ▇▇▇▇ Golf shall have transferred or reserved for the benefit of the Golf Course Land (previously or in connection with such Disposition) at no cost to the Loan Parties such easements as are necessary for the Loan Parties to access such Points of Diversion, own and operate such ▇▇▇▇▇ and transport such water to the water features of the Project and/or the Golf Course and the Loan Parties shall have taken all actions required pursuant to Section 6.10 with respect to any Property thereby acquired). Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the Loan Parties such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably requested by the Loan Parties to release the Liens for the benefit of the Secured Parties in the Home Site Land, and to effectuate such Disposition; provided, that an instrument reasonably acceptable to the Administrative Agent is recorded against the Home Site Land to the effect that until the earlier of (x) the Disposition of the Golf Course Land in accordance with Section 7.5(k) or (y) the payment in full of the Obligations, only residential housing and other non-gaming related developments will be developed on the Home Site Land, the provisions of such instrument to burden the Home Site Land for the benefit of the Golf Course Land;
(m) Dispositions of all or a portion of the ▇▇▇▇▇ Land; provided that (i) any such Disposition shall be in furtherance of the development, construction and operation of the Project (including, without limitation, the construction, development and operation of employee parking facilities and other ancillary facilities) on the ▇▇▇▇▇ Land and/or on adjacent Property acquired or to be acquired by any Loan Party pursuant to the transaction or series of transactions related to such Disposition, (ii) any such Disposition shall be at fair market value (after taking into consideration any cash and non-cash consideration received for such Disposition from any transaction or series of transactions related to such Disposition), (iii) any Net Cash Proceeds of any such Disposition that are not reinvested or otherwise utilized in furtherance of the matters described in clause (i) above within 360 days after such Disposition shall be deemed Net Cash Proceeds and shall be required to be applied to the prepayment of the Obligations in accordance with Section 2.12(b) (without any right of reinvestment thereunder) and (iv) the Loan Parties shall have taken all actions required pursuant to Section 6.10 with respect to any Property acquired in connection with any transaction or series of transactions related to any such Disposition;
(n) any Event of Eminent Domain, ; provided, that the requirements of Section 8.1 are complied Loan Parties otherwise comply with in connection therewithSections 2.12(c) and 2.24, as applicable; and
(o) Dispositions by any Loan Party to any other Loan Party (other than Capital Corp. or ▇▇▇▇ Golf (except with respect to Dispositions, the proceeds of Items of Equipment which are replaced necessary for the organizational maintenance of Capital Corp. or ▇▇▇▇ Golf); provided, that in each case each Loan Party shall have taken all actions required pursuant to Section 4.7 6.10 with respect to any Property acquired by it pursuant to this clause (o); Notwithstanding the foregoing provisions of the Borrower Security Agreement.
this Section 7.5, subsection (pf) the Disposition of the Aircraft so long as
(i) the consideration received for the Aircraft above shall be in an amount at least equal to the fair market value thereof,
(ii) the sole consideration received shall be cash, and
(iii) either
(A) the aggregate Net Disposition Proceeds from such Disposition are paid to the Collateral Agent and applied to the prepayment of the Loans used to refinance the Aircraft pursuant to Section 3.1(a) or
(1) World Travel or the Aircraft Trustee simultaneously acquires a Replacement Aircraft which becomes subject to the Aircraft Security Agreement pursuant additional provisos that: (a) no Event of Default shall exist and be continuing at the time of such transaction, lease or sublease or would occur as a result of entering into such transaction, lease or sublease (or immediately after any renewal or extension thereof at the option of the Borrower), (b) such transaction, lease or sublease could not reasonably be expected to Section 4.7(cmaterially interfere with, or materially impair or detract from, the operation of the Project, (c) thereof,
no gaming, hotel or casino operations (2other than the operation of arcades and games for minors) may be conducted on any space that is subject to such transaction, lease or sublease other than by and for the benefit of the Loan Parties and (d) no lease or sublease may provide that a Loan Party subordinate its fee, condominium or leasehold interest to any lessee or any party financing any lessee; provided, that (x) the aggregate Net Disposition Proceeds Administrative Agent on behalf of the Lenders shall agree to provide the tenant under any such lease or sublease with a subordination, non-disturbance and attornment agreement and (y) unless the Administrative Agent shall otherwise waive such requirement, with respect to any such lease having a term of five years or more and reasonably anticipated annual rents (whether due to base rent, fixed rents, reasonably anticipated percentage rents or other reasonably anticipated rental income from such Disposition are applied lease or sublease) in excess of $500,000 (other than leases solely between Loan Parties), the applicable Loan Party(ies) shall enter into, and cause the tenant under any such lease or sublease to enter into with the acquisition Administrative Agent for the benefit of the Replacement Aircraft Lenders, a subordination, non-disturbance and attornment agreement, in each case substantially in the remaining funds required for form of Exhibit N hereto with such changes as the acquisition Administrative Agent may approve, which approval shall not be unreasonably withheld, conditioned or delayed (provided, that such changes do not materially and adversely affect the security interests granted in favor of the Replacement Aircraft are obtained from only the following sources:Lenders und
Appears in 1 contract
Sources: Credit Agreement (Wynn Resorts LTD)
Limitation on Disposition of Property. Dispose of any of its Property or Property (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or issue or sell any shares of Capital Stock to any Person, except:
(a) the Disposition for fair market value in the ordinary course of business of obsolete or worn out Property or Property no longer useful in the business of the applicable Loan Party; provided, that (i) such Disposition could not reasonably be expected to materially adversely affect the Project, any of the Mortgaged Properties or any of the Collateral, (ii) to the extent such Property is Collateral, prior to such Disposition any such Property shall be replaced with other Property of (A) substantially equal or greater utility and similar use and (B) either (x) a value at least substantially equal to that of the replaced Property when first acquired or (y) substantially equal or greater quality and, if applicable, prestige and caliber as the replaced Property when first acquired and free from any Lien of any other Person (subject to Permitted Liens) and (iii) to the extent such Property is Collateral, the applicable Loan Party shall subject such replacement property to the Lien of the Security Documents in favor of the Lenders of at least the same priority as the Property so replaced and otherwise in compliance with the Borrower Security Agreement and the Aircraft Security Agreement, as applicableParties;
(b) the Disposition of Cash cash or Cash Equivalents or Permitted Securities (in each case in transactions otherwise permitted hereunder)cash equivalents, Investments permitted pursuant to Section 7.8, inventory (in the ordinary course of businessbusiness (other than the sale of condominiums, time shares, integral ownerships or other similar interests)) and receivables (in connection with the collection thereof and otherwise as customary in gaming operations of the type conducted by the Loan Parties);
(c) Dispositions permitted by Section 7.4 (including the Disposition of Capital Stock of Loan Parties pursuant to Section 7.4(b))7.4;
(d) the sale or issuance of any Loan Party's ’s Capital Stock (other than Disqualified Stock) to its direct parent that is a Loan Party in furtherance of Investments permitted pursuant to Section 7.8(e)parent;
(e) Dispositions of Property having a fair market value not in excess of $5,000,000 40,000,000 in the aggregate (with respect to all the Loan Parties) in any Fiscal Year following the Completion DateYear; provided, that (i) the consideration received for such Property shall be in an amount at least equal to the fair market value thereof; and (ii) the sole consideration received therefor shall be cash; and (iii) to the extent such Asset Sales relate to the Collateral, the proceeds of such Asset Sales shall be applied to either (A) the prepayment of the Loans pursuant to Section 3.1(a) at least 75% in cash or (B) the acquisition of assets which shall become a Substitute Item or Substitute Items pursuant to and in accordance with Section 4.7 of the Borrower Security Agreementcash equivalents;
(f) subject to the last paragraph of this Section 4.2 of the Borrower Security Agreement7.5, the Borrower may enter into any leases with respect to any Item of Equipment, and subject to Section 4.2 of space on or within the Aircraft Security Agreement, the Aircraft Trustee, or World Travel pursuant to the Aircraft Operating Agreement, may enter into any lease with respect to the Aircraft, and Valvino may enter into any commercial office space leases with respect to the Phase II Land BuildingProject;
(g) (i) any Loan Party may dedicate the dedication of space within the Project for the purpose or other Dispositions of Property in connection with and in furtherance of constructing (Ai) a mass transit system, (Bii) a pedestrian bridge over or a pedestrian tunnel under Las Vegas Boulevard or Sands Avenue or similar structures to facilitate the movement of pedestrians or vehicle vehicular traffic, (Ciii) a right turn lane or other roadway dedication or (iv) such other structures or improvements reasonably related to and in furtherance of the development, construction and operation of the Project; provided, that (A) in each case such dedication does or other Dispositions are in furtherance of, and do not materially impair or interfere in the use or operation of operations (or intended use or operations) of, the Project or any Loan Party or materially detract from the value of the Property subject thereto and (ii) the exchange of real property between Valvino and ▇▇▇▇▇ County, Nevada, pursuant to which each such party shall transfer to each other fee ownership in real property having approximately equal fair market values; provided, that (AB) in no event shall Valvino transfer the Loan Parties in the aggregate Dispose of (other than by way of dedication to a Governmental Authority) more than an aggregate amount five acres of 40,000 square feet of real property Real Estate pursuant to this clause (iiSection 7.5(g), (B) Valvino shall take such actions as required pursuant to Sections 6.10 and 7.26 of the Wynn Credit Agreement with respect to any real property acquired pursuant to this clause (ii) and (C) such exchange of real property could not reasonably be expected to materially and adversely affect or interfere with the Permitted Business of any Loan Party or have a material adverse effect on the Casino Land, the Golf Course Land or the Phase II Land;
(h) any Loan Party may (xi) the Loan Parties may license trademarks and trademarks, trade names and other Intellectual Property in the ordinary course of business and, and not interfering in any eventmaterial respect with the ordinary conduct of the business of the Loan Parties and (ii) abandon any trademarks, Wynn Resort Holdings may license to Wynn Resorts, for less than fair market value, any trade names or all other Intellectual Property no longer useful in or relating to the name "Wynn Resorts" (including, without limitation, any and all Intellectual Property identified in subparts (a)(12), (a)(14)-(19), (b)(1), and (c) of Part IX of Schedule 4.9(b)) (collectively, the "Wynn Resorts IP") and (y) ▇▇▇▇ Resorts Holdings may transfer to Wynn Resorts, for less than fair market value, any or all business of the Wynn Resorts IP (provided, that all of the Wynn Resorts IP shall be transferred by ▇▇▇▇ Resorts Holdings to Wynn Resorts as soon as is practicable after the Document Closing DateLoan Parties;
(i) the incurrence of Liens permitted under Section 7.3; provided, provided that any leases other than those permitted pursuant to Section 7.3(i) (whether or not constituting Permitted Liens) shall be permitted only to the extent provided in subsection (f) above and the last paragraph of this Section 7.5;
(j) the applicable Golf Course Land Owner(s) shall be permitted to Dispose Disposition of the ▇▇▇▇ Wynn Home Site Land to or as directed by ▇▇. ▇▇▇▇, and the Lenders hereby consent to such Disposition, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition, and (ii) such disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ concurrently consent to such Disposition;
(k) the Golf Course Land Owner(s) shall be permitted to Dispose of the Golf Course Land and in connection therewith the applicable Loan Parties shall be permitted to Dispose of their ownership in the Capital Stock of Desert Inn Water and Desert Inn Improvement and the DIIC Water Permits (other than the DIIC Casino Water Permit), and the Lenders hereby consent to such Dispositions, on the conditions that (i) no Default or Event of Default has occurred and is continuing at the time of such Dispositions and (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(l) the applicable Golf Course Land Owner(s) shall be permitted to Dispose of the Home Site Land, and the Lenders hereby consent to such Disposition, on the conditions provided that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) such Disposition is permitted pursuant to the terms of the Wynn Credit Agreement or the cash purchase price paid by ▇▇. ▇▇▇▇ or his designee for the Wynn Home Site Land is in immediately available funds (which, if received by a Person other than the Borrower, shall be held by such Person in trust for the benefit of the Borrower and paid to the Borrower no later than one Business Day after receipt of such funds) and equal to or greater than the fair market value of the Wynn Home Site Land, as determined in good faith by the Loan Parties, (iii) the Mortgaged Properties affected by the Disposition of the Wynn Home Site Land constitute separate legal parcels under NRS, Chapter 278, (iv) the Borrower shall have certified that construction of ▇▇. ▇▇▇▇’▇ personal residence on the Wynn Home Site could not reasonably be expected to materially interfere with the use or operations of the Golf Course and could not otherwise reasonably be expected to impair the overall value of the Project, (v) appropriate reconveyance documentation in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent shall have been prepared reflecting the release of the Wynn Home Site Land from the Lien of the applicable Mortgage(s) and such documentation shall have been recorded at the ▇▇▇▇▇ County, Nevada Recorder’s Office, (vi) the Borrower shall have delivered to the Administrative Agent and the Collateral Agent an endorsement, or a commitment by the Title Insurer to issue an endorsement, to the Title Policy, in either case in form and substance reasonably satisfactory to the Administrative Agent, insuring that the execution and recordation of the reconveyance documentation described in clause (v) above does not impair the Lien of the Mortgage(s) affected by such reconveyance documentation and (vii) no Points of Diversion with respect to any water permits held by any Loan Party or otherwise concurrently consent utilized or expected to be utilized with respect to the Project, ▇▇▇▇▇ associated therewith or rights-of-way necessary for the transportation of water available under such water permits to the Golf Course Land or the water features of the Project, as the case may be, are located on the Wynn Home Site Land. Upon satisfaction of the foregoing conditions, the Administrative Agent shall execute and deliver to the Loan Parties such documents and instruments, including UCC-3 termination statements and deeds of reconveyance, all as may be reasonably requested by the Loan Parties to release the Liens granted for the benefit of the Secured Parties in the Wynn Home Site Land, and to effectuate such Disposition; provided, that an instrument reasonably acceptable to the Administrative Agent is recorded against the Wynn Home Site Land to the effect that until the earlier of (x) the Disposition of the Golf Course Land in accordance with Section 7.5(k) or (y) the payment in full of the Obligations, only a personal residence for ▇▇. ▇▇▇▇ will be developed on the Wynn Home Site Land, the provisions of such instrument to burden the Wynn Home Site Land for the benefit of the Golf Course Land;
(mk) Valvino shall be permitted to Dispose Disposition of the Phase II LandGolf Course Land and/or, and at the Lenders hereby consent to such Dispositionoption of the Loan Parties, on Disposition of the conditions Capital Stock of ▇▇▇▇ Golf; provided, that (i) no Default or Event of Default has occurred and is continuing at the time of such Disposition and such Disposition is not prohibited under the other Financing Agreements, (ii) such Disposition is permitted pursuant to occurs on or after the terms last day of the Wynn Credit Agreement or the ▇▇▇▇ ▇▇▇▇▇ otherwise concurrently consent to such Disposition;
(n) any Event of Eminent Domain, provided, that the requirements of Section 8.1 are complied with in connection therewith; and
(o) Dispositions of Items of Equipment which are replaced pursuant to Section 4.7 second full fiscal quarter of the Borrower Security Agreement.
(p) occurring after the Disposition of the Aircraft so long as
(i) the consideration received for the Aircraft shall be in an amount at least equal to the fair market value thereof,
(ii) the sole consideration received shall be cashPhase II Completion Date, and
(iii) either
at the time of such Disposition, the Consolidated Leverage Ratio (Acalculated in accordance with Section 1.3(b)) for the aggregate Net Disposition Proceeds period of four full consecutive fiscal quarters ending on each of the two most recent Quarterly Dates was 5.0 to 1.0 or less (provided, that, in each such case, there shall be excluded from such Disposition are paid to the Collateral Agent and applied to the prepayment calculations of the Loans used to refinance Consolidated Leverage Ratio the Aircraft pursuant to Section 3.1(aConsolidated EBITDA, if any, derived from the Golf Course during any applicable period) or
(1) World Travel or the Aircraft Trustee simultaneously acquires a Replacement Aircraft which becomes subject to the Aircraft Security Agreement pursuant to Section 4.7(c) thereof,
(2) the aggregate Net Disposition Proceeds from such Disposition are applied to the acquisition of the Replacement Aircraft and the remaining funds required for the acquisition of the Replacement Aircraft are obtained from only the following sources:and
Appears in 1 contract
Sources: Credit Agreement (Wynn Resorts LTD)