WYNN » Topics » Events of Default

This excerpt taken from the WYNN 8-K filed Sep 11, 2009.

Events of Default

The facilities contain customary events of default, such as failure to pay, breach of covenant, insolvency proceedings, material adverse effect and cross default provisions. Events of default also include certain breaches of the terms of the Concession Agreement, and the taking of certain formal measures or administrative intervention by the Macau government in respect of the Concession Agreement or the concession for the land on which Wynn Macau is located.

The facilities also include a change of control event of default which includes:

 

 

Mr. Wynn (together with Mr. Okada of Aruze Corp. and certain other related parties, including any 80% (or more) owned subsidiary, trust, estate or immediate family members of Mr. Wynn or Mr. Okada) ceasing to control at least 20% of the voting power of Wynn Resorts, Limited;

 

 

Mr. Wynn (together with his related parties but excluding Mr. Okada and Mr. Okada’s related parties) ceasing to control at least 10% of the voting power of Wynn Resorts, Limited; and

 

 

Wynn Resorts, Limited ceasing to own or control at least 51% of WRM (or ceasing to have the ability to direct the management of WRM).

This excerpt taken from the WYNN 8-K filed Oct 31, 2007.

EVENTS OF DEFAULT

7.1 Events of Default. The occurrence of any of the following events shall constitute an event of default (“Event of Default”) hereunder:

7.1.1 Other Financing Documents. The occurrence of an “Event of Default” under and as defined in the (a) Bank Credit Agreement or (b) 2014 Notes Indenture.

7.1.2 Failure to Demonstrate Balancing. The failure of the Phase II Project to be In Balance and such failure shall continue for sixty (60) days without being cured.

7.1.3 Covenants.

(a) The Company shall fail to perform or observe any of its obligations under Sections 5.5.1, 5.5.3, 5.14, 6.1, 6.2, 6.3, 6.5, 6.6, 6.7, or 6.8 hereof; or

(b) The Company shall fail to perform or observe any of its obligations under Articles 5 or 6 hereof (other than those listed in Sections 7.1.3(a) above) where such default shall not have been remedied within thirty (30) days after the earlier of (i) the Company or any other Loan Party becoming aware of such breach or default or (ii) notice of such failure from the Disbursement Agent or the Bank Agent to the Company.

7.1.4 Breach of Material Construction Agreements.

(a) Any Loan Party shall breach or default (after giving effect to applicable cure periods and grace periods) under any term, condition, provision, covenant, representation or warranty contained in any Material Construction Agreement in any material respect and such breach or default shall continue unremedied for thirty (30) days after the earlier of (i) the Company or any other Loan Party becoming aware of such breach or default or (ii) receipt by the Company or any other Loan Party of notice from the Disbursement Agent or the Bank Agent of such breach or default; provided, however, that if the breach or default is reasonably susceptible to cure within forty-five (45) days but cannot be cured within such thirty (30) days despite such other party’s good faith and diligent efforts to do so, the cure period shall be extended as is reasonably necessary beyond such thirty (30) day period (but in no event shall such cure period, as extended, be longer than forty-five (45) days in the aggregate) if remedial action reasonably likely to result in cure is promptly instituted within such thirty (30) day period and is thereafter diligently pursued until the breach or default is corrected; or

(b) Any party (other than any Loan Party) shall breach or default (after giving effect to applicable cure periods and grace periods) in any material respect under any term, condition, provision, covenant, representation or warranty contained in any Material Construction Agreement and such breach or default shall continue unremedied for thirty (30) days after the earlier of (i) the Company or any other Loan Party becoming aware of such breach or default or (ii) receipt by the Company or any other Loan Party of notice from the Bank Agent of such breach or default; provided, however, that (A) if the breach or default is reasonably susceptible to cure within ninety (90) days but cannot be cured within such thirty (30) days despite such other party’s good faith and diligent efforts to do so, the cure period shall be extended as is reasonably necessary beyond such thirty (30) day period (but in no event shall such cure period, as extended, be longer than ninety (90) days in the aggregate) if remedial action reasonably likely to result in cure is promptly instituted within such thirty (30) day period and is thereafter diligently pursued until the breach or default is corrected and (B) no Potential

 

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Event of Default or Event of Default shall be deemed to have occurred as a result of such breach if the Company provides written notice to the Bank Agent promptly upon (but in no event more than five (5) Banking Days after) the Company or any Loan Party becoming aware of such breach that the Company intends to replace such Material Construction Agreement (or that replacement is not necessary) and (1) within ninety (90) days of such breach the Company obtains a replacement obligor or obligors reasonably acceptable to the Disbursement Agent (in consultation with the Construction Consultant) for the affected party (if in the judgment of the Disbursement Agent (in consultation with the Construction Consultant) a replacement is necessary), (2) the Company enters into a replacement Material Construction Agreement on terms no less beneficial, taken as a whole, to the Company and the Secured Parties in any material respect than the Contract so breached within ninety (90) days of such breach (if in the reasonable judgment of the Disbursement Agent (in consultation with the Construction Consultant) a replacement is necessary); provided, however that the replacement Material Construction Agreement may require the Company to pay amounts to the replacement obligor in excess of those that would have been payable under the breached Material Construction Agreement if such additional payments do not cause the Phase II Project to fail to be In Balance and (3) such breach or default, after considering any replacement obligor and replacement Contract and the time required to implement such replacement, has not had and could not reasonably be expected to have a Material Adverse Effect; or

(c) The Company shall have received a “stop work” notice under Nevada Revised Statutes Section 624.610 with respect to any Material Construction Agreement.

7.1.5 Termination or Invalidity of Material Construction Agreements; Abandonment of Projects.

(a) Any of the Material Construction Agreements shall have terminated (other than in accordance with its terms), become invalid or illegal, or otherwise ceased to be in full force and effect, provided that with respect to any Material Construction Agreement, no Potential Event of Default or Event of Default shall be deemed to have occurred as a result of such termination if the Company provides written notice to the Bank Agent promptly upon (but in no event more than five (5) Banking Days after) the Company, the Phase II Construction Guarantor or any Loan Party becoming aware of such Material Construction Agreement ceasing to be in full force or effect that the Company intends to replace such Material Construction Agreement (or that replacement is not necessary) and (i) within ninety (90) days of such event the Company obtains a replacement obligor or obligors reasonably acceptable to the Disbursement Agent (in consultation with the Construction Consultant), for the affected party (if in the judgment of the Disbursement Agent (in consultation with the Construction Consultant) a replacement is necessary), (ii) the Company enters into a replacement Material Construction Agreement, on terms no less beneficial, taken as a whole, to the Company and the Secured Parties in any material respect than the Material Construction Agreement so terminated, within ninety (90) days of such termination (if in the reasonable judgment of the Disbursement Agent (in consultation with the Construction Consultant) a replacement is necessary); provided, however that the replacement Material Construction Agreement may require the Company to pay additional amounts to the replacement obligor that would have otherwise been payable under the terminated Material Construction Agreement if such additional payments in the reasonable judgment of the Disbursement Agent, in consultation with the Construction Consultant, do not cause the Company to fail to be In Balance and (iii) such termination, after considering any replacement obligor and replacement Material Construction Agreement and the time required to implement such replacement, has not had and could not reasonably be expected to have a Material Adverse Effect;

 

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(b) The Company shall abandon the Phase II Project for a period of 45 days, or otherwise cease to pursue the operations of the Phase II Project for a period of forty-five (45) days; provided, however, that such forty-five (45)-day period may be extended as is reasonably necessary as a result of any Event of Force Majeure (but in no event shall such period, as extended, be longer than ninety (90) days in the aggregate).

7.1.6 Schedule; Completion.

(a) Failure to achieve the Phase II Opening Date on or before the Phase II Scheduled Opening Date; or

(b) Failure to achieve the Phase II Completion Date on or before the Phase II Scheduled Completion Date;

in each case unless, within three (3) Business Days after the occurrence of such failure, the Company extends, as and to the extent permitted under Section 6.3.2, the Phase II Scheduled Opening Date or the Phase II Scheduled Completion date, as applicable.

7.1.7 Representations and Warranties; Information. Any representation or warranty made or deemed made by the Company herein, or any information contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement shall prove to have been inaccurate in any material respect on or as of the date made or deemed made.

7.2 Remedies. Upon the occurrence and during the continuation of an Event of Default, the Bank Agent and the Disbursement Agent may, without further notice refuse to make any extensions of credit under the Bank Credit Agreement or make or allow any payments or disbursements for the payment of Project Costs from any Company Account or other funds held by the Disbursement Agent by or on behalf of the Company.

The Bank Agent (acting under the Bank Credit Agreement) shall be entitled to waive any Potential Event of Default or Event of Default without the consent of any other Person. If the Bank Agent so waives any Potential Event of Default or Event of Default, such Potential Event of Default or Event of Default shall cease to continue for all purposes of this Agreement and the other Financing Agreements. Any cure or waiver of any “Event of Default” under the Bank Credit Agreement that is effective under the terms of the Bank Credit Agreement shall automatically cure an Event of Default under clause (a) of Section 7.1.1. Any cure or waiver of any “Event of Default” under the 2014 Notes Indenture that is effective under the terms of the 2014 Notes Indenture shall automatically cure an Event of Default under clause (b) of Section 7.1.1.

 

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EXCERPTS ON THIS PAGE:

8-K
Sep 11, 2009
8-K
Oct 31, 2007
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