Exhibit 10.3
EXECUTION COPY
AIRCRAFT SECURITY AGREEMENT
This form is subject to State legal requirements.
1. GRANT OF SECURITY INTEREST; DESCRIPTION OF COLLATERAL.
The undersigned, ▇▇▇▇▇ Fargo Bank Northwest, National Association, not
in its individual capacity, but solely as Owner Trustee (in such capacity, the
"Owner") of that certain Trust created under the Trust Agreement (as amended,
the "Aircraft Trust") dated as of May 10, 2002 with World Travel, LLC, a Nevada
limited liability company ("World Travel"), as Trustor and World Travel,
jointly and severally, (the Owner and World Travel are hereinafter,
collectively, the "Debtors"), to secure payment of the indebtedness evidenced
hereby and all other indebtedness now or hereafter owing by Debtors to ▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, not in its
individual capacity (except as specifically set forth herein), but solely as
collateral agent, its successors and assigns ("Secured Party"), Bank of
America, N.A. ("BofA") and/or The CIT Group/Equipment Financing, Inc. ("CIT";
BofA and CIT are each hereinafter individually referred to as a "Lender" and,
collectively, as the "Lenders") hereunder and under the other Operative
Documents (as hereinafter defined) hereby grant to Secured Party for the
benefit of the Lenders a security interest as follows:
(a) Owner hereby grants to Secured Party for the benefit of the
Lenders a security interest in all of Owner's right, title and interest in and
to the following-described aircraft, engine(s), and equipment, together with
all appliances, parts, instruments, appurtenances, accessories, furnishings and
other equipment of whatever nature (other than the Engines), that may from time
to time be incorporated or installed in or attached to the Airframe or any
Engine (collectively referred to herein as "Parts"), and the property described
on Schedule A attached hereto, all of which is hereinafter referred to as
"Collateral":
Airframe:
REGISTRATION
NEW/USED YEAR MANUFACTURER MODEL SERIAL NUMBER NUMBER
Used 1999 Boeing 737-79U Business Jet 29441 N88WR
together with any and all Parts incorporated or installed or attached to such
aircraft and all Parts removed from such aircraft until such Parts are replaced
(such airframe, together with any replacement or substitute airframe and all
such Parts, the "Airframe"):
Engine(s): Rated over 750 horsepower.
CFM International, Inc. model CFM 56-7B, S/N: 874-373
CFM International, Inc. model CFM 56-7B, S/N: 874-366
regardless of whether, from time to time thereafter, either such engine is
installed on the aircraft described above or installed on any other airframe or
any other aircraft, and each of the engines installed on the Aircraft and any
replacement engine that may be substituted for such engine, together, in each
case, with any and all Parts incorporated or installed or attached thereto and
any and all Parts removed therefrom, until such Parts are replaced (each such
engine, and replacement or substitute engine, together with any and all such
Parts, the "Engine" and collectively the "Engines"; the Airframe, Engines and
the Parts are collectively referred to as the "Aircraft"; and any and all
proceeds of any of the above.
(b) World Travel hereby grants to Secured Party for the benefit of the
Lenders a security interest in all of World Travel's right, title and interest
in and to the Collateral. World Travel confirms that its interest in the
Aircraft is as beneficial owner only pursuant to the terms of the Aircraft
Trust, and World Travel claims no right, title or interest as holder of legal
title to the Aircraft.
Capitalized terms used herein and not otherwise defined shall have the
meaning set forth in Appendix 1 hereto.
2. WARRANTIES.
Debtors warrant that the Collateral is not and will not be registered
under the laws of any foreign country, that the Owner has good legal and
beneficial title to the Collateral (except for beneficial title to the Aircraft
which is held by World Travel) and is in lawful possession thereof, and the
same is and will be kept free and clear of all liens, adverse claims and
encumbrances except for (i) the rights of Debtors as herein provided, the lien
hereof and any other rights existing pursuant to the Operative Documents, (ii)
the rights of lessees and other persons under leases and other agreements and
arrangements in each case to the extent permitted by the Operative Documents,
(iii) liens for taxes imposed against Debtors either not yet due or being
contested on a timely basis in good faith by appropriate proceedings, (iv)
mechanics', material suppliers', workers', repairers', employees' or other like
liens arising in the ordinary course of Debtors' business for amounts that are
not overdue or are being contested on a timely basis and in good faith by
appropriate proceedings, (v) liens arising out of any judgment or award against
Debtors with respect to which an appeal or proceeding for review is being
prosecuted on a timely basis and in good faith and in respect of which a stay
of execution pending such appeal or proceeding for review shall have been
secured, (vi) salvage or similar rights of insurers under policies required to
be maintained by Debtors under Section 8 hereof and (vii) any other lien with
respect to which Debtors shall have provided a bond or other security in an
amount and under terms reasonably satisfactory to Secured Party (collectively,
the "Permitted Liens").
The Owner warrants that it is a "citizen of the United States" as
defined in Section 40102(a)(15) of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code; each Debtor
warrants that the Aircraft will not be registered under the laws of any foreign
country, and that the Aircraft will not be used in violation of any law,
regulation, ordinance or policy of insurance affecting the maintenance, use or
flight of Aircraft in any material respect. These warranties are conditions of
the Debtors' right of possession and use, and delivery is made in reliance
thereon.
3. USE AND LOCATION OF COLLATERAL.
Said Aircraft shall be regularly hangared at:
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name of airport or street address City County State Zip Code
Debtors may not otherwise change the Aircraft's regular hangar as indicated
above without prior notice to the Secured Party.
Debtors warrant and agree that the Collateral is to be used primarily for
business or commercial purposes (other than agricultural).
4. PROMISE TO PAY; TERMS AND PLACE OF PAYMENT.
Debtors promise, jointly and severally, to pay the Lenders all amounts
shown on the promissory notes attached hereto as Exhibits A and B, and made a
part hereof, according to the terms described therein (provided that any
failure to pay an amount other than principal shall not constitute an Event of
Default until such payment is at least five (5) days overdue). Payments shall
be made as designated therein or such other place as the Lenders may designate
from time to time. This Security Agreement shall continue effective
irrespective of any retaking and redelivery of Collateral to Debtors until all
amounts secured hereby are fully paid. Any note taken herewith shall evidence
indebtedness and not payment.
5. LATE CHARGES AND OTHER FEES.
Any payment not made when due shall, at the option of the Lenders,
bear late charges thereon calculated at the Overdue Rate, but in no event
greater than the highest rate permitted by relevant law.
6. DEBTORS' WARRANTIES, REPRESENTATIONS AND COVENANTS.
Debtors jointly and severally warrant, represent and covenant:
(a) that Debtors are justly indebted to the Lenders for the
full amount of the foregoing indebtedness;
(b) that this Security Agreement creates a valid first
priority security interest in the Collateral and that all filings and
other action necessary to perfect such security interest have been
taken, and further that, except for the security interest granted
hereby, the Collateral is free from and will be kept free from all
liens, claims, security interests and encumbrances in each case other
than Permitted Liens;
(c) that no financing statement or mortgage covering the
Collateral, or the proceeds thereof, is on file except as contemplated
hereunder;
(d) Debtors have full authority to enter into, and have duly
authorized executed and delivered this Security Agreement and the
Promissory Notes and Agreements and in so doing are not violating
their charter or by-laws, any law or regulation or agreement with
third parties; Debtors have taken all such action as may be necessary
or appropriate to make this Security Agreement binding upon them, and
this Security Agreement and the Promissory Notes and Agreements are
the legal, valid and binding obligations of the Debtors and are
enforceable against Debtors in accordance with their respective terms
except as such enforceability may be limited by (a) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and (b)
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(e) each Debtor (a) is the type of organization, (b) is
organized under the laws of the jurisdiction, (c) has its chief
executive office, and (d) if it is a "registered organization" as
defined in Article 9 of the Uniform Commercial Code (i.e., organized
solely under the laws of a single state and as to which the state must
maintain a public record showing the organization to have been
organized), has the organizational identification number (or, if none,
has been assigned no such number by the state of organization), all as
set forth under Debtor's name (which is its exact and complete legal
name) at the signature line of this Security Agreement. Debtors agree
to notify Secured Party in writing promptly, and in any event, within
ten Business Days, in the event of a change in any of the foregoing
facts and information;
(f) that Debtors shall maintain, service, repair, overhaul
and test or caused to be maintained, serviced, repaired, overhauled
and tested the Aircraft so as to keep such Aircraft in as good
operating condition as when delivered to Debtors, ordinary wear and
tear excepted, and in such condition as may be necessary to enable the
Airworthiness Certificate (as defined in the Transportation Code. 49
U.S.C. section 44101 et seq. and related regulations (the "Act")) of
such Aircraft to be maintained in good standing at all times under the
Act and to maintain such Aircraft under Debtors' FAA-approved
maintenance program as in effect from time to time for the Aircraft,
which shall include scheduled maintenance, conditioned monitored
maintenance, on-condition maintenance or other hourly cost maintenance
programs with respect to the Aircraft its engines, power components
and other parts, including, to the extent required to maintain
airworthiness, Alert Customer Bulletins, Customer Bulletins and
Aircraft Service Changes or other requirements of the manufacturer in
effect from time to time, all at Debtors' sole expense, "Maintenance
Program");
(g) that Debtors shall accrue to the extent required by GAAP
on their books and records an amount of funds sufficient to cover all
expenses incurred as a result of scheduled aircraft or engine
maintenance as required by the Maintenance Program; and
(h) that Debtors shall promptly furnish to Secured Party
such information as may be required to enable Secured Party to file
any reports required to be filed by Secured Party with any
governmental authority because of the Owner's ownership of such
Aircraft.
7. DEBTORS' OTHER AGREEMENTS.
Debtors jointly and severally agree:
(a) to defend at Debtors' own cost any action, proceeding,
or claim adversely affecting the Collateral;
(b) to pay the fees of, and any reasonable attorneys' fees
and other reasonable expenses incurred by, Secured Party or the
Lenders in connection with the preparation, execution and delivery of
the Operative Documents (whether or not such transactions are
consummated) or in enforcing their rights hereunder and under the
other Operative Documents after Debtors default or in connection with
any amendment or waiver thereto requested by Debtors;
(c) to reimburse Secured Party for all reasonable expenses
incurred by Secured Party in connection with the recordation of this
Security Agreement, filing financing statements, the registration of
the Collateral and search of any appropriate records including the FAA
records;
(d) that Debtors will not, without Secured Party's prior
written consent, sell, rent, lend, lease, encumber, transfer or
otherwise dispose of the Collateral; provided that, one or both
Debtors may, so long as no Event of Default exists and subject to
clauses (i), (ii) and (iii) below, lease all or any portion of the
Collateral to one or more of World Travel's Affiliates (each such
lease shall be referred to as an "Aircraft Lease"); provided further
that, so long as no Event of Default exists and subject to clause (i)
below, the Debtors may permit the Aircraft to be used to provide
transportation to any person for a period no longer than 30 days (per
provision of transportation) as contemplated by Section 9 of the
Approved Sublease without regard to the requirements of clause (ii) or
(iii) below; provided further that, neither Debtor shall lease, or
permit the use of, any portion of the Collateral to or by any Person
who shall then be engaged in any proceedings for relief under any
bankruptcy or insolvency law or laws relating to the relief of
debtors;
(i) Debtors agree that no Aircraft Lease hereunder
will discharge or diminish either of the Debtor's obligations
to the Secured Party hereunder or either of the Debtor's
obligations to any other Person under any other Operative
Document, and the Debtors shall remain directly and primarily
liable under this Security Agreement and any other Operative
Document to which it is a party with respect to all of the
Collateral;
(ii) Debtors agree that each Aircraft Lease
permitted hereby shall be in writing and shall expressly
provide that: (A) the Aircraft Lease and the lessee's rights
thereunder are subject and subordinate to this Security
Agreement and the rights of the Secured Party hereunder,
including, without limitation, the right of the Secured Party
to inspect and take possession of the Aircraft from time to
time, (B) the lessee agrees to surrender its possession (if
any) of the Aircraft at the election of the Secured Party
after an Event of Default; (C) the lessee will use the
Aircraft in full compliance with all of the terms and
conditions contained in this Security Agreement, (D) the
lessee waives any right that it might have to any notice of
the Secured Party's intention to inspect, take possession of,
or exercise any other right or remedy in respect of the
Aircraft under this Security Agreement, (E) the lessee
waives, as against the Secured Party, all rights to any
set-off, defense, counterclaim, or cross-claim that it may
hold against the Debtors, and (F) the lessee acknowledges
that, upon an Event of Default it shall have no further
rights in and to the Aircraft. Any Aircraft Lease that does
not contain the foregoing language shall not be permitted by
this Paragraph 7(d), except that any agreement for the
provision of transportation contemplated by Section 9 of the
Approved Sublease shall not be required to include clause (C)
above;
(iii) Debtors agree that World Travel shall give the
Secured Party prompt, and in any event within 5 Business Days
thereof, written notice of any Aircraft Lease permitted under
this Paragraph 7(d), and shall promptly provide the Secured
Party with a fully executed copy of each document evidencing
such Aircraft Lease, together with a certificate of a
responsible officer of the Owner that such Aircraft Lease
complies with Paragraph 7(d)(ii);
provided, however, the Secured Party (A) waives the notice and
certificate requirements with respect to the Approved Lease and the
Approved Sublease and (B) acknowledges that the Approved Lease and the
Approved Sublease comply with Paragraph 7(d)(ii);
(e) to pay promptly all taxes, assessments, license fees and
other public or private charges when levied or assessed against the
Collateral or this Security Agreement or any Promissory Note and
Agreement;
(f) that Collateral will be used, operated and maintained in
all material respects at all times in accordance with the laws, rules,
regulations and ordinances of the United States, the several states
and municipalities thereof, and any other sovereign jurisdictions in
which Collateral may be used;
(g) that said Aircraft will have a permanent hangar in the
United States, and Debtors will neither permit the Aircraft to be
operated outside the continental United States (except as provided in
clause (ii) below) or change its principal hangar from that specified
herein without the prior written consent of Secured Party, which
consent shall not be unreasonably withheld;
(i) Debtors further agree not to operate the
Aircraft in any area excluded from coverage by any insurance
required by the terms of Paragraph 8 hereof (or not
specifically and fully covered by such insurance);
(ii) Notwithstanding anything to the contrary
contained in this sub-paragraph 7(g), Debtors may permit the
Aircraft to be operated outside the continental United
States, provided that, under no circumstances will Debtors
permit the Aircraft to be operated in (A) any area excluded
from coverage by any insurance required by the terms of
Paragraph 8 of the Security Agreement (or not specifically
and fully covered by such insurance), (B) any recognized or
threatened area of hostilities unless fully covered to
Secured Party's satisfaction by hull, political,
expropriation, hijacking and war risk insurance, or (C) any
jurisdiction as to which a travel prohibition, embargo or
other equivalent restriction issued by the U.S. government or
any agency or authority thereof, including but not limited
to, the Bureau of Consular Affairs, the Department of
Homeland Security, the Transportation Security
Administration, the United States Department of State, is in
effect;
(h) that Collateral will be operated at all times by a
currently certified pilot having the minimum total pilot hours
required by the insurance covering such Collateral;
(i) that Collateral will be maintained at all times in an
airworthy condition necessary for Aircraft licenses under the laws,
ordinances, rules and regulations of the United States, the several
states and municipalities and any other jurisdictions in which the
Collateral shall be at any time operated;
(j) that Debtors will not use or permit Collateral to be
used contrary to any laws relating to intoxicating liquors, narcotics,
or similar products, and shall conform with all laws governing
Aircraft;
(k) that all equipment, engines, radios, accessories,
instruments and parts now or hereafter incorporated or installed in or
attached to the Airframe or any Engine shall become part of the
Collateral by accession;
(l) to satisfy all liens other than Permitted Liens against
the Collateral and to insure that this Security Agreement creates a
valid and perfected first priority lien and security interest in the
Collateral subject to Permitted Liens;
(m) that Secured Party and the Lenders shall not be liable
to Debtors for, and Debtors shall indemnify and save Secured Party and
the Lenders harmless from and against any and all liability, loss,
damage, expense, causes of action, suits, claims or judgments
(collectively, "Claims") arising from or caused directly or indirectly
by (i) Debtors' failure to promptly perform any of its obligations
under the provisions of this Security Agreement or any other related
document, (ii) injury to person or property resulting from or based
upon the actual or alleged use, operation, delivery or transportation
of the Collateral or its location or condition, (iii) inadequacy of
the Collateral for any purpose or any deficiency or defect therein or
the use or maintenance thereof or any repairs, servicing or
adjustments thereto or any delay in providing or failure to provide
any thereof or any interruption or loss of service or use thereof or
any loss of business or (iv) the Aircraft or transactions contemplated
hereby or by the other related documents, in each case of (i) through
(iv) above, other than (a) taxes (or Claims resulting from taxes)
which are based upon or measured by the Secured Party's or any
Lender's net income or that are imposed because the Secured Party or a
Lender is not a "United States person" within the meaning of Section
7701(a)(30) of the Internal Revenue Code of 1986, as amended or (b)
Claims arising from or caused by the gross negligence and willful
misconduct of the Secured Party or any Lender; and shall, at its own
cost and expense, defend any and all suits which may be brought
against Secured Party or the Lenders, either alone or in conjunction
with others upon any such liability or claim or claims and shall
satisfy, pay and discharge any and all judgments and fines that may be
recovered against Secured Party and the Lenders in any such action or
actions, provided, however, that Secured Party or the Lenders shall
give Debtors written notice of any such claim or demand;
(n) if reasonably available, upon the request of Secured
Party, if any of the Collateral consists of software, to inform
Secured Party of the name of the licensor of such software and to
provide Secured Party with a copy of the license agreement; and
(o) if any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or
in the interpretation or application thereof or compliance by such
Lender or any corporation controlling such Lender with any request or
directive regarding capital adequacy (whether or not having the force
of law) from any Governmental Authority made subsequent to the date
hereof shall have the effect of reducing the rate of return on such
Lender's or such corporation's capital as a consequence of its
obligations under its Promissory Note and Agreement to a level below
that which such Lender or such corporation could have achieved but for
such adoption, change or compliance (taking into consideration such
Lender's or such corporation's policies with respect to capital
adequacy) by an amount deemed by such Lender to be material, then from
time to time, after submission by such Lender to the Debtors (with a
copy to the Secured Party) of a written request therefor (which
request shall set forth, in reasonable detail, the basis and
calculation of the additional amounts sought), the Debtors shall pay
to such Lender such additional amount or amounts as set forth in the
aforesaid notice; provided, that the Debtors shall not be required to
compensate a Lender pursuant to this subsection (o) for any amounts
incurred more than six months prior to the date on which such Lender
notified the Debtors of such Lender's intention to claim compensation
therefor; provided, further, that, if the circumstances giving rise to
such claim have a retroactive effect, then such six-month period shall
be extended to include the period of such retroactive affect. A
certificate as to any additional amounts payable pursuant to this
subsection (o) submitted by any Lender to the Debtors (with a copy to
the Secured Party) and setting forth, in reasonable detail, the basis
and calculation of such amounts shall be conclusive in the absence of
manifest error.
8. INSURANCE AND RISK OF LOSS.
All risk of loss, damage or destruction of the Collateral shall at all
times be on Debtors. Debtors shall procure forthwith and maintain at Debtors'
expense aircraft hull insurance, including all-risk ground and flight insurance
on the Collateral for an amount at least equal to $48,000,000 (provided that no
co-insurance clause in any such policy may limit the amount to be paid in the
event of a Casualty to an amount less than $48,000,000), subject to deductibles
in such minimum amounts as are consistent with industry standards which, in any
event, shall not be greater than $750,000, for the life of this Security
Agreement plus third party liability insurance and shall promptly deliver each
policy to Secured Party with a standard long-form mortgagee endorsement
attached thereto showing loss payable to Secured Party for amounts in excess of
$750,000; and providing that the Secured Party and the Lenders are additional
insureds thereunder; and providing Secured Party with not less than 30 days
written notice of cancellation; each such policy shall be in form, terms and
amount and with insurance carriers that are financially sound and solvent,
rated in Best's Insurance Guide or any successor thereto with a general policy
rating of "A-" and a size rating of at least "VIII" or otherwise satisfactory
to Secured Party; Secured Party's acceptance of policies in lesser amounts or
risks shall not be a waiver of Debtors' foregoing obligations. As to Secured
Party's interest in such policy, no act or omission of Debtors or any of its
officers, agents, employees or representatives shall affect the obligations of
the insurer to pay the full amount of any loss.
Subject to the provisions of the next paragraph, Debtors hereby assign
to Secured Party any monies which may become payable under any such policy of
hull insurance and irrevocably constitutes and appoints Secured Party as
Debtors' attorney in fact (a) to make claims for any monies which may become
payable under such and other insurance on the Collateral including returned or
unearned premiums; and (b) to endorse Debtors' name on any check, draft or
other instrument received in payment of claims or returned or unearned premiums
under each policy and to apply the funds to the payment of the indebtedness
owing to Secured Party, provided, however, Secured Party is under no obligation
to do any of the foregoing.
Debtor shall not settle any claims under any hull insurance policy for
less than the outstanding indebtedness under the Promissory Notes and
Agreements in the case of a Casualty, or the total amount necessary to complete
any repairs in the case of any other event of loss or damage exceeding
$1,500,000 to any Engine, Part or Airframe, in each case without the consent of
the Secured Party, which consent shall not be unreasonably withheld. Debtor may
settle all other claims.
In the event of Casualty, Debtors pay the Casualty Amount required
pursuant to the Promissory Notes and Agreements. Upon payment of the Casualty
Amount, and provided no other amount is due hereunder, Debtors will be entitled
to recover possession of the Aircraft and Collateral free and clear of the
right and interest of Secured Party. In the event of loss of or damage to any
Engine, Part or Airframe that does not constitute a Casualty, Debtors will
comply with Paragraph 14 hereof. So long as no Event of Default has occurred
and continuing, the proceeds of any insurance claim for partial loss or damage
to any Engine, Part or Airframe (a) in an amount less than or equal to $750,000
shall be paid directly by the insurance company to Debtors (b) in an amount in
excess of $750,000 shall be paid to the Secured Party to be applied to pay for
replacements or repairs as requested by Debtors or, if funded by Debtors, shall
be paid over to Debtors. Any excess amounts shall be paid to the Secured Party
and applied to the outstanding principal amount of the Promissory Notes and
Agreements on the next Payment Date.
Should Debtors fail to furnish such insurance policy to Secured Party,
or to maintain such policy in full force, or to pay any premium in whole or in
part relating thereto, then Secured Party or the Lenders, without waiving or
releasing any default or obligation by Debtors, may (but shall be under no
obligation to) obtain and maintain insurance and pay the premium therefor on
behalf of Debtors and charge the premium to Debtors' indebtedness under this
Security Agreement. The full amount of any such premium paid by Secured Party
shall be payable by Debtors upon demand, and failure to pay same shall
constitute an event of default under this Security Agreement.
9. EVENTS OF DEFAULT; ACCELERATION.
The following are events of default under this Security Agreement
("Events of Default") which will allow Secured Party to take action under this
Paragraph and under Paragraph 10:
(a) any of Debtors' payment obligations to Secured Party or
the Lenders under this agreement or any other Operative Document is
not paid promptly when due in the case of principal or within five (5)
days of the due date in the case of all other amounts;
(b) the Guarantor or either Debtor defaults in the
performance of any covenant or agreement set forth herein or in any
other Operative Document (other than as provided in subsection (a) of
this Paragraph), and such default shall continue unremedied for a
period of 30 days after the earlier of (i) the Guarantor or either
Debtor becoming aware of such default or (ii) receipt by the Guarantor
or either Debtor of written notice from the Secured Party or any
Lender of such default;
(c) (i) the Guarantor or any Debtor shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of
a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or the
Guarantor or any Debtor shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the
Guarantor or any Debtor any case, proceeding or other action of a
nature referred to in subsection (i) above that (A) results in the
entry of an order for relief or any such adjudication or appointment
or (B) remains undismissed, undischarged or unbonded for a period of
60 days; or (iii) there shall be commenced against the Guarantor or
any Debtor any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets that results in the entry of
an order for any such relief that shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Guarantor or any Debtor shall take any
action in furtherance of, or indicating its consent to, approval of,
or acquiescence in, any of the acts set forth in subsection (i), (ii),
or (iii) above; or (v) the Guarantor or any Debtor shall generally
not, or shall admit in writing its inability to, pay its debts as they
become due;
(d) the Guaranty is terminated for any reason whatsoever,
including, without limitation, a determination by any Governmental
Authority that the Guaranty is invalid, void or unenforceable or the
Guarantor shall terminate, contest or deny in writing the validity or
enforceability of any of its obligations under the Guaranty; or
(e) any representation or warranty made by either Debtor or
the Guarantor in any Operative Document shall prove to have been
inaccurate in any material respect on or as of the date made or deemed
made.
If an Event of Default exists, (i) the Secured Party and the Lenders
may exercise any rights under and with respect to any of the Operative
Documents, (ii) any Lender may proceed to protect and enforce the rights of
such Lender by an action at law, suit in equity or other appropriate
proceeding, whether for the specific performance of any agreement contained
herein or in any Operative Document, or for an injunction against a violation
of any of the terms hereof or thereof, or in aid of the exercise of any power
granted hereby or thereby or by law or otherwise, and (iii) the Secured Party
and any Lender may exercise any rights or remedies under applicable law. No
course of dealing and no delay on the part of any Lender in exercising any
right, power or remedy shall operate as a waiver thereof or otherwise prejudice
such Lender's rights, powers or remedies. No right, power or remedy conferred
by this note any holder thereof shall be exclusive of any other right, power or
remedy referred to herein or therein or now or hereafter available at law, in
equity, by statute or otherwise. This acceleration of all indebtedness, if
elected by Secured Party or the Lenders, shall be subject to all applicable
laws, including laws as to rebates and refunds of unearned charges.
10. SECURED PARTY'S REMEDIES AFTER DEFAULT; CONSENT TO ENTER PREMISES.
If an Event of Default exists, Secured Party shall have all the rights
and remedies of a secured party under the Uniform Commercial Code and any other
applicable laws, including the right to any deficiency remaining after
disposition of the Collateral for which Debtors hereby agree to remain fully
liable, Secured Party may require Debtors to return the Collateral to Secured
Party at a place to be designated by Secured Party which is reasonably
convenient to both parties. Secured Party may sell or lease the Collateral at a
time and location of its choosing provided that the Secured Party acts in good
faith and in a commercially reasonable manner. Secured Party will give Debtors
reasonable notice of the time and place of any public sale of the Collateral or
of the time after which any private sale of the Collateral or any other
intended disposition thereof is to be made. Unless otherwise provided by law,
the requirement of reasonable notice shall be met if such notice is mailed,
postage prepaid, to the address of Debtors shown herein at least ten days
before the time of the sale or disposition. If permitted by law, the Sheriff of
any county in which the Collateral is located may, on request of Secured Party
and the delivery to the Sheriff of a copy hereof, take possession of the
Collateral and sell the same in the manner prescribed by applicable law.
Expenses of retaking, holding, preparing for sale, selling and the like shall
include reasonable attorneys' fees and other legal expenses. While repossessing
Collateral, or removing it from a place of repossession to a place of storage
and/or sale, Secured Party may, if permitted by law, use any of Debtors'
licenses in respect to Collateral.
11. WAIVER OF DEFAULTS; AGREEMENT INCLUSIVE.
Secured Party may in its sole discretion waive a default, or cure, at
Debtors' expense, a default. Any such waiver in a particular instance or of a
particular default shall not be a waiver of other defaults or the same kind of
default at another time. No modification or change in this Security Agreement
or any related note, instrument or agreement shall bind Secured Party unless in
writing signed by Secured Party. No oral agreement shall be binding.
12. FINANCING STATEMENTS; CERTAIN EXPENSES; FAA DOCUMENTS.
Debtors authorize Secured Party to file a financing statement with
respect to the Collateral, which financing statements may describe the
collateral in the same manner described herein or in any other manner as
Secured Party may determine and ratify the filing by Secured Party of such
financing statements previously filed. At the reasonable request of Secured
Party, Debtors will execute any financing statements, agreements or documents,
in form reasonably satisfactory to Secured Party which Secured Party may deem
reasonably necessary or advisable to establish and maintain a perfected
security interest in the Collateral, and will pay the reasonable cost of filing
or recording the same in all public offices deemed necessary or advisable by
Secured Party. Debtors also agree to pay all reasonable costs and expenses
incurred by Secured Party in conducting UCC, tax or other lien searches against
the Debtors or the Collateral and such other fees as may be agreed. At the
reasonable request of Secured Party, Debtors will join Secured Party in
executing any additional documents needed to properly register the lien of the
Secured Party on the Collateral with the FAA.
13. WAIVER OF DEFENSES ACKNOWLEDGMENT.
The Secured Party, subject to the terms of the Intercreditor and
Collateral Agency Agreement among the Lenders and the Secured Party, or any
Lender may assign this Security Agreement or its note in whole or in part to a
third party ("Assignee"). If Secured Party or any Lender assigns this Security
Agreement or its note in whole or in part to an Assignee, then after such
assignment:
(a) Debtors will make all payments directly to such Assignee
at such place as Assignee may from time to time designate in writing;
(b) Debtors agree that they will settle all claims,
defenses, setoffs and counterclaims it may have against Secured Party
or any Lender directly with Secured Party or such Lender and will not
set up any such claim, defense, setoff or counterclaim against
Assignee, Secured Party and such Lender hereby agreeing to remain
responsible therefore;
(c) Secured Party or such Lender shall not be Assignee's
agent for any purpose and shall have no authority to change or modify
this Security Agreement or any related document or instrument; and
(d) Assignee shall have all of the rights, remedies and
obligations, if any, of Secured Party or such Lender hereunder.
14. REPLACEMENTS.
Engine Replacements -- If the Debtors have given notice that they
intend to replace an Engine suffering loss or damage, the Debtors may make,
subject to this Security Agreement, not later than 180 days from the date of
such loss or damage with respect to such Engine, a replacement for such Engine
meeting the suitability standards hereinafter set forth (a "Replacement
Engine"). To be suitable as a Replacement Engine, an engine must be (i) the
same general type and of the same manufacturer, (ii) have the same or better
remaining economic useful life, state of repair and operating condition
(immediately preceding the Casualty assuming that such Engine had been
maintained in accordance with the terms of this Security Agreement but without
regard to hours or cycles remaining to the next overhaul) as the Engine
suffering the Casualty, (iii) have a fair market value of not less than the
fair market value (immediately preceding the Casualty assuming that such Engine
had been maintained in accordance with the terms of this Security Agreement) of
the Engine suffering the Casualty (without regard to hours or cycles remaining
to the next overhaul) and (iv) be free and clear of any liens other than liens
that will be created hereunder and then allowed hereby. In the event any
Replacement Engine is of an earlier year of construction than the replaced
Engine, the Debtors shall deliver an appraisal in form and substance
satisfactory to the Required Lenders from an appraiser selected by the Required
Lenders confirming that such Replacement Engine meets the standards set forth
in clause (ii) and (iii) of the immediately preceding sentence. The Debtors
shall cause a supplement to this Security Agreement to be executed and
delivered to the Secured Party in order to subject such Replacement Engine to
this Security Agreement, and upon such execution and delivery and the receipt
by Lenders of (i) evidence reasonably satisfactory to them of the Debtors'
compliance with the insurance provisions of Paragraph 8 with respect to such
Replacement Engine, and (ii) an opinion of counsel to the Debtors opining as to
the authorization, execution and delivery of the supplement, the enforceability
of the supplement and the filing and recording of the supplement and any
applicable FAA filings or UCC financing statements with respect thereto.
Parts Replacements --Debtors will promptly replace or cause to be
replaced all other Parts which may from time to time become worn out, lost,
stolen, destroyed, seized, confiscated, damaged beyond repair or permanently
rendered unfit for use for any reason whatsoever. All replacement Parts shall
be free and clear of all liens other than liens that will be created hereunder
and then allowed hereby, and shall be in good operating condition. All Parts at
any time removed from the Airframe or either Engine shall remain subject to the
lien of this Security Agreement, no matter where located, until such time as
such parts shall be replaced by parts which meet the requirements for
replacement parts specified above. Upon any replacement part becoming
incorporated or installed in or attached to the Airframe or either Engine,
without further act, (i) such replacement part shall become subject to the lien
of this Security Agreement and be deemed a part for all purposes hereof to the
same extent as the parts originally incorporated or installed in or attached to
the Airframe or such Engine and (ii) the replaced part shall no longer be
deemed a part hereunder.
In the event of the requisition for use of the Airframe or the Engines
or engines installed on the Airframe by any Governmental Authority, Debtors
shall promptly notify Secured Party of such requisition or activation, and all
of Debtors' obligations under this Security Agreement with respect to the
Aircraft shall continue to the same extent as if such requisition or activation
had not occurred. All payments received by Secured Party or Debtors from such
Governmental Authority for the use of the Airframe and Engines or engines shall
be paid over to, or retained by, Debtors.
15. MISCELLANEOUS.
Secured Party may correct patent errors herein and fill in such blanks
as serial numbers, date of first payment and the like. Any provisions hereof
contrary to, prohibited by or invalid under applicable laws or regulations
shall be inapplicable and deemed omitted herefrom, but shall not invalidate the
remaining provisions hereof. DEBTORS AND SECURED PARTY EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO, IN
CONNECTION WITH, OR ARISING OUT OF THIS SECURITY AGREEMENT, OR ANY NOTE OR
DOCUMENT DELIVERED PURSUANT TO THIS SECURITY AGREEMENT. This Security Agreement
is executed pursuant to authority of the members of the Debtors. "Debtors",
"Lenders" and "Secured Party as used in this Security Agreement include the
successors or assigns to those parties. The obligations of the Debtors under
this Security Agreement shall be joint and several.
If at any time this transaction would be usurious under applicable
law, then regardless of any provision contained in this Security Agreement or
in any other agreement made in connection with this transaction, it is agreed
that:
(a) the total of all consideration which constitutes
interest under applicable law that is contracted for, charged or
received upon this Security Agreement or any other agreement shall
under no circumstances exceed the maximum rate of interest authorized
by applicable law and any excess shall be credited to the Debtors; and
(b) if Secured Party, at the direction of the Lenders,
elects to accelerate the maturity of, or if Secured Party permits
Debtors to prepay the indebtedness described in Paragraph 4, any
amounts which because of such action would constitute interest may
never include more than the maximum rate of interest authorized by
applicable law, and any excess interest, if any, provided for in this
Security Agreement or otherwise, shall be credited to Debtors
automatically as of the date of acceleration or prepayment.
16. GOVERNING LAW.
THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAW PRINCIPLES (EXCEPT TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
Any suit by Secured Party or any Lender to enforce any claim arising
out of this Security Agreement or any other Operative Document may be brought
in any state or Federal court located in New York having subject matter
jurisdiction, and with respect to any such claim, each party to the Operative
Documents hereby irrevocably: (a) submits to the non-exclusive jurisdiction of
such courts; and (b) consents to the service of process out of said courts in
the manner provided for notices set forth below. The Debtors irrevocably waive,
to the fullest extent permitted by law: (A) any claim, or any objection, that
it now or hereafter may have, that venue is not proper with respect to any such
suit, action or proceeding brought in such a court located in New York
including, without limitation, any claim that any such suit, action or
proceeding brought in such court has been brought in an inconvenient forum; and
(B) any claim that the Debtors is not subject to personal jurisdiction or
service of process in such forum. The Debtors agree that any suit to enforce
any claim arising out of the Operative Documents or any course of conduct or
dealing of Secured Party or any Lender shall be brought and maintained
exclusively in any state or Federal court located in New York. Nothing in this
paragraph shall affect the right of Secured Party or any Lender to bring any
action or proceeding against Debtors or the Collateral in the courts of any
other jurisdiction. The Debtors agree that a final judgment in any action or
proceeding in a state or Federal court within the United States may be enforced
in any other jurisdiction by suit on the judgment or in any other manner
provided by law.
THE DEBTORS, EACH LENDER AND SECURED PARTY WAIVES ANY RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
GUARANTY OR ANY OTHER OPERATIVE DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN
CONNECTION WITH THIS NOTE OR ANY OTHER OPERATIVE DOCUMENT AND AGREES THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
17. AMENDMENT.
This Agreement may only be amended, and the observance of any term
hereof may be waived (either retroactively or prospectively), with (and only
with) the written consent of the Debtors, the Secured Party and the Required
Lenders; provided that any amendment or waiver which would change the
definition of "Required Lenders" shall require the consent of each Lender.
18. NOTICE.
All demands, notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when personally delivered
or one business day after being sent by overnight delivery service or three
days after being deposited in the mail, certified mail postage prepaid, or when
sent by facsimile transmission, if confirmed by mechanical confirmation and if
a copy thereof is promptly thereafter personally delivered, sent by overnight
delivery service or so deposited in the mail, addressed to: (A) the Debtors or
Secured Party at the address set forth below, or at such other address as may
hereafter be furnished by either party to the other and (B) each Lender at its
address set forth below its signature to its Note:
(i) if to the Debtors:
▇▇▇▇▇ FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner Trustee under
the Trust Agreement dated as of May 10,
2002 with World Travel, LLC as
Trustor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 12th Floor
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
WORLD TRAVEL, LLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
WORLD TRAVEL, LLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Secured Party:
▇▇▇▇▇ Fargo Bank,
National Association
c/o Wells Fargo Bank Northwest,
National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Dated: May 24, 2005
DEBTORS:
▇▇▇▇▇ FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner Trustee
under the Trust Agreement dated as of
May 10, 2002 with World Travel, LLC as
Trustor
By /s/ ▇▇▇ ▇▇▇▇▇
----------------------------------------
Title Vice President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Type of organization: National Banking
Association
Jurisdiction of organization: United
States of America
Organizational Identification Number
(or "None"): ___________
Location of chief executive office:
Salt Lake City, Utah
WORLD TRAVEL, LLC
By: ▇▇▇▇ LAS VEGAS, LLC,
a Nevada limited liability company,
its sole member
By: ▇▇▇▇ RESORTS HOLDINGS, LLC,
a Nevada limited liability
company, its sole member
By: WYNN RESORTS, LIMITED,
a Nevada corporation,
its sole member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Sr. VP & Secretary
Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Type of organization: limited
liability company
Jurisdiction of organization: Nevada
Organizational Identification Number
(or "None"): LLC860-2002
Location of chief executive office:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SECURED PARTY:
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Collateral Agent for the
benefit of the Lenders
By /s/ ▇▇▇ ▇▇▇▇▇
----------------------------------------
Title Vice President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Type of organization: National
Banking Association
Jurisdiction of organization: United
States of America
Organizational Identification Number
(or "None"): ___________
Location of chief executive office:
Salt Lake City, Utah
SCHEDULE A
ONE 1999 BOEING 737-79U BUSINESS JET AIRCRAFT BEARING MANUFACTURER'S SERIAL
NUMBER 29441, YEAR OF MANUFACTURE 1999 AND FAA REGISTRATION NUMBER N88WR
Engines:
CFM INTERNATIONAL, INC. MODEL CFM 56-7B ENGINE BEARING MANUFACTURER'S SERIAL
NUMBER 874-373
AND
CFM INTERNATIONAL, INC. MODEL CFM 56-7B ENGINE BEARING MANUFACTURER'S SERIAL
NUMBER AND 874-366
APU Allied Signal 131-9B
EQUIPMENT SPECIFICATIONS:
Avionics:
Communication: Triple Gabels Radio Turning Unites
Triple AVTECH Audio Selector
Dual ▇▇▇▇▇▇▇ ▇▇ Transceivers
Coltech SELCAL
Triple ▇▇▇▇▇▇▇ VHF Transceivers
Single 5 Channel Coltech Decoder
Navigation: Five Tube Multi-Function EFIS
Flight Dynamics Heads Up Display
Sextant Attitude/Airspeed/Altimeter Standby Inst.
Enhanced Group Proximity Warning System
Dual ▇▇▇▇▇▇▇ Radio Altimeters
Single ▇▇▇▇▇▇▇ Weather Radar with Windshear
Capabilities: Single ▇▇▇▇▇▇▇ TCAS II Computer
Dual ▇▇▇▇▇▇▇ Transponders
Dual ▇▇▇▇▇▇▇ VOR/Marker Beacon Receivers
Dual ▇▇▇▇▇▇▇ DME Receivers
Dual ▇▇▇▇▇▇▇ ADF Receivers
Dual ▇▇▇▇▇ Flight Management Systems
Dual Multi Mode Receiver with GPS/ILS
Teledyne Airborne Date Loader
▇▇▇▇▇ Auto Throttle System
CVR: Single L3 communication Cockpit Voice Recorder
FDR: Single L3 communications SS Flight Data Recorder
ELT: Single Artex 3 Channel Emergency Locator Beacon
Together with all present and future appliances, parts, instruments,
appurtenances, accessories, furnishings and other equipment of whatever nature,
that may from time to time be incorporated or installed in or attached to the
Airframe or any Engine and the proceeds of any of the foregoing.
Initial MHR
--------
APPENDIX 1
TO
OPERATIVE DOCUMENTS
In the Operative Documents, unless the context otherwise requires:
(a) any term defined below by reference to another
instrument or document shall continue to have the meaning ascribed
thereto whether or not such other instrument or document remains in
effect;
(b) words importing the singular include the plural and vice
versa;
(c) a reference to a part, clause, section, article, exhibit
or schedule is a reference to a part, clause, section and article of,
and exhibit and schedule to, such Operative Document;
(d) a reference to any statute, regulation, proclamation,
ordinance or law includes all statutes, regulations, proclamations,
ordinances or laws amending, supplementing, supplanting, varying,
consolidating or replacing them, and a reference to a statute includes
all regulations, proclamations and ordinances issued or otherwise
applicable under that statute;
(e) a reference to a document includes any amendment or
supplement to, or replacement or novation of, that document;
(f) a reference to a party to a document includes that
party's successors and permitted assigns; and
(g) references to "including" means including without
limiting the generality of any description preceding such term and for
purposes hereof the rule of ejusdem generis shall not be applicable to
limit a general statement followed by or referable to an enumeration
of specific matters to matters similar to those specifically
mentioned.
Further, each of the parties to the Operative Documents and their
counsel have reviewed and revised the Operative Documents, or requested
revisions thereto, and the usual rule of construction that any ambiguities are
to be resolved against the drafting party shall be inapplicable in construing
and interpreting the Operative Documents.
"Act" is defined in Paragraph 6(f) of the Security Agreement.
"Adjusted Base Rate" shall mean the Base Rate plus the Applicable
Lender Margin.
"Adjusted LIBOR Rate" shall mean the LIBOR Rate plus the Applicable
Lender Margin.
"Administrative Charge" shall mean an amount equal to the amount, if
any, required to compensate each Lender for any loss (other than loss of
anticipated profits) or expense that such Lender may incur as a result of the
Makers' payment of principal on a Promissory Note and Agreement on any date
other than on a Payment Date. Such indemnification may include an amount equal
to the excess, if any, of (i) the amount of interest that would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment to the last day of such Interest period
in each case at the applicable rate of interest for such Loans provided for
herein (excluding, however, the Applicable Lender Margin included therein, if
any) over (ii) the amount of interest (as reasonably determined by such Lender)
that would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank market. A
certificate as to any amounts payable pursuant to this definition submitted to
the Makers by any Lender shall be conclusive in the absence of manifest error.
"Affiliate" shall mean, as applied to any Person, any other Person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with") as applied to any Person means the power,
directly or indirectly, either to (a) vote 10% or more of the securities having
ordinary voting power for the election of directors (or persons performing
similar functions) of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Aircraft" is defined in Paragraph 1 of the Security Agreement.
"Aircraft Lease" is defined in Paragraph 7(d) of the Security
Agreement.
"Aircraft Trust" is defined in Paragraph 1 of the Security Agreement.
"Airframe" is defined in Paragraph 1 of the Security Agreement.
"Applicable Administrative Charge" shall mean, as of any date of
determination in respect of any event, any Administrative Charge determined to
be due and owing in respect of such event.
"Applicable Lender Margin" shall mean (i) at any time of determination
of the LIBOR Rate, 2.375% per annum, and (ii) at any time of determination of
the Base Rate, 1.25% per annum.
"Approved Lease" means the Aircraft Lease Agreement dated as of May
24, 2005 by and between Owner and World Travel (the "Aircraft Head Lease") or
any other lease or operating agreement between Owner and World Travel, or any
Affiliate of World Travel, substantially in the form of the Aircraft Head
Lease.
"Approved Sublease" means the Aircraft Sublease made and entered into
as of the 24th day of May, 2005 by and between World Travel and Las Vegas Jet,
LLC (the "Aircraft Sublease"), or any other lease between World Travel, or any
Affiliate of World Travel, substantially in the form of the Aircraft Sublease.
"Assignee" is defined in Paragraph 13 of the Security Agreement.
"Base Rate" for any day shall mean a rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1%) equal to the greatest of (a) the Prime
Rate in effect on such day and (b) the Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. Any change in the Base Rate due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate or
the Federal Funds Effective Rate, respectively.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"BofA" shall mean Bank of America, N.A., together with its successors
and assigns.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, a day other than a Saturday, Sunday or other day on which
commercial banks in New York City, New York or Las Vegas, Nevada or Salt Lake
City, Utah are authorized or required by law to close and (ii) with respect to
all notices and determinations in connection with, and payments of principal
and interest on, amounts under this Promissory Note and Agreement bearing
interest at the Adjusted LIBOR Rate, any day which is a Business Day described
in clause (i) above and which is also a day for trading by and between banks in
Dollar deposits in the New York interbank market.
"Casualty" shall mean any of the following events in respect of the
Aircraft or Airframe: (a) the total loss of such Aircraft or Airframe, the
total loss of use thereof due to theft, disappearance, destruction, damage
beyond repair or the rendering of such Aircraft or Airframe permanently unfit
for normal use for any reason whatsoever (other than obsolescence); (b) any
damage to such Aircraft or Airframe which results in an insurance settlement
with respect to such Aircraft or Airframe on the basis of a total loss or a
constructive total loss; (c) the permanent condemnation, confiscation or
seizure of, or the requisition of title to or use of, such Aircraft or
Airframe; or (d) as a result of any Requirement of Law or other action by any
Governmental Agency, the use of such Aircraft or Airframe in the normal course
of the Makers' or any of their affiliate's business shall have been prohibited,
directly or indirectly, for a period equal to the lesser of 180 consecutive
days and the remaining period until the Maturity Date.
"Casualty Amount" is defined in Schedule 3 to the Promissory Notes and
Agreements.
"Casualty Notice" is defined in Schedule 3 to the Promissory Notes and
Agreements.
"Casualty Settlement Date" is defined in Schedule 3 to the Promissory
Notes and Agreements.
"CIT" shall mean The CIT Group/Equipment Financing, Inc., together
with its successors and assigns.
"Collateral" is defined in Paragraph 1 of the Security Agreement.
"Collateral Agent" shall mean ▇▇▇▇▇ Fargo Bank, National Association,
as collateral agent under the Intercreditor Agreement and its successors.
"Debtors" shall mean the Owner and World Travel.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"Engine" is defined in Paragraph 1 of the Security Agreement.
"Event of Default" shall have the meaning set forth in Paragraph 9 of
the Security Agreement.
"FAA" shall mean the Federal Aviation Administration, or any successor
agency thereto.
"Federal Funds Effective Rate" for any day shall mean the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations for the day of such transactions received by the
Collateral Agent from three federal funds brokers of recognized standing
selected by it.
"GAAP" shall mean generally accepted accounting principles in the
United States, from time to time.
"Governmental Agency" or "Governmental Authority" shall mean any
national, state or local government (whether domestic or foreign), any
political subdivision thereof or any other governmental, quasi-governmental,
judicial, public or statutory instrumentality, authority, body, agency, bureau
or entity, (including the Nevada Gaming Authorities, any zoning authority, the
FDIC, the Comptroller of the Currency or the Federal Reserve Board, any central
bank or any comparable authority), and entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government or any arbitrator with authority to bind a party at law.
"Guarantor" shall mean Wynn Las Vegas, LLC, a Nevada limited liability
company.
"Guaranty" shall mean that certain Guaranty dated May 24, 2005 by the
Guarantor in favor of the Lenders and the Collateral Agent.
"Intercreditor Agreement" shall mean that certain Intercreditor and
Collateral Agency Agreement dated May 24, 2005 among the Lenders and the
Collateral Agent.
"Interest Period" shall mean, initially, the period commencing on the
borrowing, with respect to the Promissory Notes and Agreements and ending June
30, 2005, and thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to the Promissory Notes and Agreements and
ending 3 months thereafter; provided that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period that would otherwise extend beyond
the Maturity Date shall end on the Maturity Date, as applicable; and
(iii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month.
"Interest Rate" shall mean, for each day during each Interest Period
with respect thereto, (i) a rate per annum equal to the Adjusted LIBOR Rate or
(ii) if the LIBOR Rate is illegal, unavailable or impracticable, as described
in Schedule 1 to the Promissory Notes and Agreements, the Adjusted Base Rate.
"Lender" shall mean BofA or CIT and "Lenders" shall mean BofA and CIT,
collectively.
"LIBOR Rate" shall mean, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for deposits in U.S. Dollars for a 3 month period which
appears on the Bloomberg Page BBAM published by the British Bankers Association
or any successor page or source thereto, effective as of 11:00 a.m. (London,
England time) two (2) Business Days prior to the beginning of such Interest
Period; provided that the LIBOR Rate for the first Interest Period commencing
on the borrowing shall be a rate per annum for a 30-day period.
"Loans" shall mean the principal amount outstanding on all of the
Promissory Notes and Agreements secured by the Security Agreement.
"Maintenance Program" is defined in Paragraph 6(f) of the Security
Agreement.
"Makers" shall mean the Owner and World Travel.
"Maturity Date" shall mean March 31, 2010, or such earlier date on
which:
(i) the Makers are required to pay the Casualty Amount, or
(ii) the Makers elect to pay the Payoff Amount, or
(iii) the holder of this Negotiable Promissory Note and
Agreement elects to accelerate it note's maturity pursuant to the
provisions hereof.
"Minimum Prepayment Amount" shall mean $10,000,000 of the aggregate
principal amount of the Loans then outstanding.
"Operative Documents" shall mean the Promissory Notes and Agreements,
the Security Agreement, the Guaranty and the Intercreditor Agreement.
"Overdue Rate" shall mean rate per annum which is 2% above the
applicable Interest Rate then in effect.
"Owner" is defined in Paragraph 1 of the Security Agreement.
"Parts" is defined in Paragraph 1 of the Security Agreement.
"Payment Date" shall mean (i) the last day of each Interest Period and
(ii) the Maturity Date.
"Pay Off Amount" is defined in the Prepayment Rider to the Negotiable
Promissory Notes and Agreements.
"Permitted Liens" is defined in Paragraph 2 of the Security Agreement.
"Person" shall mean an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Prime Rate" shall mean the rate which Bank of America, N.A.
announces, from time to time, as its prime lending rate, the Prime Rate to
change when and as such prime lending rate changes. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged by Bank of America, N.A. to any customer of Bank of America,
N.A. The Makers acknowledge that Bank of America, N.A. may, from time to time,
make commercial loans or other loans at rates of interest at, above or below
the Prime Rate.
"Promissory Notes and Agreements" shall mean the Promissory Notes and
Agreements dated May 24, 2005 by the Makers in favor of each of BofA and CIT.
"Property" shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, capital stock.
"Required Lenders" shall mean at anytime, the Lenders holding 76% or
more in principal or face amount of the Promissory Notes and Agreements of the
Debtors then outstanding.
"Requirement of Law" shall mean, as to any Person, the governing
documents of such Person, and any law, treaty, order, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its Property or
to which such Person or any of its Property is subject.
"Security Agreement" shall mean that certain Security Agreement, dated
May 24, 2005 between each of the Debtors and the Collateral Agent.
"Secured Party" shall mean the Collateral Agent.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the State of Nevada.
"World Travel" shall mean World Travel, LLC, a Nevada limited
liability company.
"Wynn Credit Agreement" shall mean the CREDIT AGREEMENT dated as of
December 14, 2004 and entered into among the Guarantor, the several banks and
other financial institutions or entities from time to time party to this
Agreement as lenders, DEUTSCHE BANK SECURITIES INC., as lead arranger and joint
book running manager, DEUTSCHE BANK TRUST COMPANY AMERICAS, as administrative
agent (in such capacity and together with its successors and assigns, the
"Administrative Agent"), issuing lender and swing line lender, BANC OF AMERICA
SECURITIES LLC, as lead arranger and joint book running manager, BANK OF
AMERICA, N.A., as syndication agent, BEAR, ▇▇▇▇▇▇▇ & CO. INC., as arranger and
joint book running manager, BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC., as joint
documentation agent, ▇.▇. ▇▇▇▇▇▇ SECURITIES INC., as arranger and joint book
running manager, JPMORGAN CHASE BANK, N.A., as joint documentation agent, SG
AMERICAS SECURITIES, LLC, as arranger and joint book running manager, and
SOCIETE GENERALE, as joint documentation agent, as the same may be, in whole or
in part, amended, restated, refinanced, renewed, extended, supplemented or
otherwise modified from time to time; provided that if at any time the Wynn
Credit Agreement is no longer in effect, "Wynn Credit Agreement" shall refer to
the terms, covenants and definitions set forth in the Wynn Credit Agreement as
in effect on the last day such agreement was in effect.