EXECUTION VERSION | |||
DATED September 30, 2015 | |||
WYNN RESORTS (MACAU) S.A. as Company | |||
BANK OF CHINA LIMITED, MACAU BRANCH as Term Facility Agent and BANK OF CHINA LIMITED, MACAU BRANCH as Term Facility Lender | |||
TERM FACILITY AGREEMENT FOURTH AMENDMENT AGREEMENT |
(1) | WYNN RESORTS (MACAU) S.A. (the "Company"); |
(2) | BANK OF CHINA LIMITED, MACAU BRANCH (the "Term Facility Agent"); and |
(3) | BANK OF CHINA LIMITED, MACAU BRANCH (the "Term Facility Lender"). |
(A) | The Company owns and operates Wynn Macau and is designing, developing and constructing the Cotai Project. |
(B) | The Secured Parties have agreed to amend certain Senior Finance Documents and enter into additional Senior Finance Documents in connection with Wynn Macau and the Cotai Project for the refinancing of existing indebtedness, for financing the design, development and construction of the Cotai Project and for the general corporate purposes of the Group (including investment in Excluded Subsidiaries, Excluded Projects or Resort Management Agreements). |
(C) | It has been agreed to amend the Term Facility Agreement as set out below. |
1. | DEFINITIONS AND INTERPRETATION |
1.1 | Incorporation of defined terms |
1.1.1 | Unless a contrary indication appears, a term defined in or by reference in the Schedule has the same meaning in this Agreement. |
1.1.2 | The principles of construction and rules of interpretation set out or referred to in the Schedule shall have effect as if set out in this Agreement. |
1.1.3 | Any references in the Senior Finance Documents to the "Hotel Facility Agreement" or the "Term Facility Agreement" shall be taken to be a reference to the Term Facility Agreement as set out in the Schedule, as further amended, consolidated, supplemented, confirmed, novated or replaced from time to time. |
1.2 | Clauses |
2. | AMENDMENT |
3. | CONTINUITY AND FURTHER ASSURANCE |
3.1 | Continuing obligations |
3.2 | Further assurance |
4. | MISCELLANEOUS |
4.1 | Incorporation of terms |
4.2 | Counterparts |
5. | GOVERNING LAW |
Address: | Wynn Macau, Rua Cidade de Sintra, NAPE Macau |
Telephone: | +853 2888 9966 |
BANK OF CHINA LIMITED, MACAU BRANCH | |
By: | /s/ Wong, Iao Kun |
Address: | 13/F Bank of China Building Avenida Doutor Mario Soares, Macau |
Tel: | +853 8792 1639 / 8792 1682 |
Fax: | +853 8792 1659 / 8792 0308 |
Attention: | Mr. James Wong / Ms. Iris Ieong |
Address: | 17/F Bank of China Building Avenida Doutor Mario Soares, Macau |
Tel: | +853 8792 1623 / 8792 1706 |
Fax: | 853 8792 1677 |
Attention: | Ms. Wendy Sun / Mr. Jerry Chan |
BANK OF CHINA LIMITED, MACAU BRANCH | |
By: | /s/ Wong, Iao Kun |
Address: | 17/F Bank of China Building Avenida Doutor Mario Soares, Macau |
Tel: | +853 8792 1623 / 8792 1706 |
Fax: | 853 8792 1677 |
Attention: | Ms. Wendy Sun / Mr. Jerry Chan |
Address: | 13/F Bank of China Building Avenida Doutor Mario Soares, Macau |
Tel: | +853 8792 1639 / 8792 1682 |
Fax: | +853 8792 1659 / 8792 0308 |
Attention: | Mr. James Wong / Ms. Iris Ieong |
DATED 14 SEPTEMBER 2004 | |||
WYNN RESORTS (MACAU) S.A. as Company | |||
BANK OF CHINA LIMITED, MACAU BRANCH as Term Facility Agent and THE TERM FACILITY LENDERS referred to herein | |||
TERM FACILITY AGREEMENT (as amended by the Hotel Facility Agreement Amendment Agreement dated 14 September 2005, the Hotel Facility Second Amendment Agreement dated 27 June 2007, the Term Facility Third Amendment Agreement dated 31 July 2012 and the Term Facility Fourth Amendment Agreement dated September 30, 2015) |
5. Conditions Precedent | |
6. Availability Of The Term Facility | |
7. Repayment | |
8. Prepayment And Cancellation | |
9. Interest | |
10.Interest Periods | |
11. Notification | |
12. [Not Used] | |
13. Changes To The Parties | |
14. Payments | |
15. Decision Making Amongst Term Facility Lenders | |
16. Counterparts | |
17. Governing Law | |
18. Jurisdiction | |
SCHEDULE 1 THE TERM FACILITY LENDERS | |
SCHEDULE 2 REPAYMENT SCHEDULE |
(1) | WYNN RESORTS (MACAU) S.A. (the "Company"); |
(2) | BANK OF CHINA LIMITED, MACAU BRANCH (the "Term Facility Agent"); and |
(3) | THE TERM FACILITY LENDERS (as defined below). |
1. | DEFINITIONS AND INTERPRETATION |
1.2 | Definitions |
(a) | the aggregate amount of its participation in any outstanding Advances (including, without limitation, the Existing Advances) under that Facility; and |
(a) | in relation to any Advance Request, the aggregate amount of its participation in any Tranche A Advance due to be made on or before the proposed Advance Date. |
(a) | the aggregate amount of its participation in any outstanding Advances (including, without limitation, the Existing Advances) under that Facility; and |
(b) | in relation to any Advance Request, the aggregate amount of its participation in any Tranche B Advance due to be made on or before the proposed Advance Date. |
(c) | the aggregate amount of its participation in any outstanding Advances (including, without limitation, the Existing Advances) under that Facility; and |
(d) | in relation to any Advance Request, the aggregate amount of its participation in any Tranche C Advance due to be made on or before the proposed Advance Date. |
(a) | the applicable Screen Rate; or |
(b) | (if no Screen Rate is available for HK dollars or for the Interest Period for that Term Facility Advance) the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Term Facility Agent at its request quoted by the Reference Banks to leading banks in the Hong Kong interbank market, |
(a) | the applicable Screen Rate; or |
(b) | (if no Screen Rate is available for US dollars or for the Interest Period for that Term Facility Advance) the arithmetic mean of the rates (rounded upwards to four |
(a) | LIBOR, the principal London offices of Deutsche Bank AG and BNP Paribas; and |
(b) | HIBOR, the principal Hong Kong offices of Bank of China Limited, Hong Kong Branch and Industrial and Commercial Bank of China (Asia) Limited, |
(a) | LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for US dollars for the relevant period displayed on page LIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate), or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters; and |
(b) | HIBOR, the Hong Kong interbank offered rate administered by the Hong Kong Association of Banks (or any other person which takes over the administration of that rate) for the relevant period displayed on page HKABHIBOR of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays the rate), or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. |
(a) | this Agreement; |
(b) | the Common Terms Agreement; |
(c) | any other Senior Finance Document to which a Term Facility Lender is a party in its capacity as a Term Facility Lender; and |
(d) | any other document designated as such by the Term Facility Agent and the Company. |
(a) | in relation to the Original Tranche A Facility Lender, the amount set opposite its name under the column entitled "Tranche A Commitment" in Schedule 1 (The Term Facility Lenders) and the amount of any other Tranche A Facility Commitment transferred to it under this Agreement; and |
(b) | in relation to any other Tranche A Facility Lender, the amount of any Tranche A Facility Commitment transferred to it under this Agreement, |
(a) | is named in Schedule 1 (The Term Facility Lenders) as a Tranche A Facility Lender (the "Original Tranche A Facility Lender"); or |
(b) | has become party hereto as a Tranche A Facility Lender in accordance with Clause 13 (Changes to the Parties), |
(a) | in relation to the Original Tranche B Facility Lender, the amount set opposite its name under the column entitled "Tranche B Commitment" in Schedule 1 (The Term Facility Lenders) and the amount of any other Tranche B Facility Commitment transferred to it under this Agreement; and |
(b) | in relation to any other Tranche B Facility Lender, the amount of any Tranche B Facility Commitment transferred to it under this Agreement, |
(a) | is named in Schedule 1 (The Term Facility Lenders) as a Tranche B Facility Lender (the "Original Tranche B Facility Lender"); or |
(b) | has become party hereto as a Tranche B Facility Lender in accordance with Clause 13 (Changes to the Parties), |
(a) | in relation to the Original Tranche C Facility Lender, the amount set opposite its name under the column entitled "Tranche C Commitment" in Schedule 1 (The Term Facility Lenders) and the amount of any other Tranche C Facility Commitment transferred to it under this Agreement; and |
(b) | in relation to any other Tranche C Facility Lender, the amount of any Tranche C Facility Commitment transferred to it under this Agreement, |
(c) | is named in Schedule 1 (The Term Facility Lenders) as a Tranche C Facility Lender (the "Original Tranche C Facility Lender"); or |
(d) | has become party hereto as a Tranche C Facility Lender in accordance with Clause 13 (Changes to the Parties), |
1.3 | Interpretation |
1.3.1 | the principles of construction contained in clause 1.2 (Principles of Construction) of the Common Terms Agreement and the rules of interpretation contained in clause 1.3 (Rules of Interpretation) of the Common Terms Agreement shall apply to the construction and interpretation of this Agreement; |
1.3.2 | any reference to the "Term Facility Agent" or "Term Facility Lender" shall be construed so as to include its or their (and any subsequent) successors and any permitted transferees in accordance with their respective interests; and |
1.3.3 | references in this Agreement to any Clause or Schedule shall be to a clause or schedule contained in this Agreement. |
1.4 | Third Party Rights |
1.4.1 | The Contracts (Rights of Third Parties) Act 1999 applies to Clause 1.4 (Non-recourse Liability) but only for the benefit of the Operatives and subject always to the terms of Clause 17 (Governing Law) and Clause 18 (Jurisdiction). |
1.4.2 | Except as provided in sub-clause 1.3.1 above, a Person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement. |
1.4.3 | Save as provided by the Common Terms Agreement, the consent of any Person who is not a party to this Agreement is not required to rescind or vary this Agreement. |
1.5 | Non-recourse Liability |
2. | COMMON TERMS AGREEMENT |
3. | THE TERM FACILITY |
3.1 | Grant of the Term Facilities |
3.1.4 | Tranche A Facility |
3.1.5 | Tranche B Facility |
3.1.6 | Tranche C Facility |
4. | PURPOSE |
4.1.4 | Subject to Clause 4.1.2, the Company shall apply all amounts borrowed by it under the Term Facility to pay for the refinancing of existing indebtedness of the Company, the design, development and construction of the Cotai Project and for the general corporate purposes of the Group (including investment in Excluded Subsidiaries, Excluded Projects or Resort Management Agreements). |
4.1.5 | The Company shall deposit (on the Fifth Amendment Effective Date) into: |
(a) | one or more Development Accounts denominated in HKD, sufficient HKD amounts borrowed by it under the Term Facility; and |
(b) | one or more Development Accounts denominated in USD, sufficient USD amounts borrowed by it under the Term Facility, |
4.1.6 | It shall be a condition to the Company making the first withdrawal from a Development Account (other than a withdrawal for the transfer of funds to another Development Account) and to making subsequent withdrawals from any Development Account (other than a withdrawal for the transfer of funds to another Development Account), that the Company shall (immediately prior to making the first such withdrawal and subsequently, for so long as there are any amounts standing to the credit of any Development Account, on the first Business Day in each calendar month thereafter) certify in writing to the Intercreditor Agent and the Term Facility Agent that it (and/or Palo, as the case may be) has incurred costs or expended funds on the development of the Cotai Project (or will immediately upon the making of such withdrawal, have expended funds on the development of the Cotai Project) in an amount at least equal to the aggregate amount of all withdrawals from the Development Accounts (excluding withdrawals for the transfer of funds to another Development Account). For the purposes of this Clause 4.1.3 costs incurred or funds expended on the development of the Cotai Project include, but are not limited to, costs and expenses related to design, development, land acquisition, construction, site preparation, equipping, pre-opening expenses and capitalized interest. |
4.1.7 | The Company shall notify the Intercreditor Agent and the Term Facility Agent of the details of each Development Account (including the bank with which such Development Account is held, in which currency such Development Account is denominated and the balance from time to time) promptly upon the opening of any such Development Account and from time to time upon request of the Intercreditor Agent and the Term Facility Agent. |
5. | CONDITIONS PRECEDENT |
6. | AVAILABILITY OF THE TERM FACILITY |
6.1 | Drawdown of Advances |
6.2 | Each Term Facility Lender's Participation |
6.2.1 | It is acknowledged and agreed that, as at the Fifth Amendment Effective Date, the Existing Advances have been made and are outstanding hereunder. |
6.2.2 | Each Tranche A Facility Lender will participate through its Facility Office in each Tranche A Advance made pursuant to Clause 6.1 (Drawdown of Advances) in the proportion borne by its Available Tranche A Commitment to the Available Tranche A Facility immediately prior to the making of that Tranche A Advance. |
6.2.3 | Each Tranche B Facility Lender will participate through its Facility Office in each Tranche B Advance made pursuant to Clause 6.1 (Drawdown of Advances) in the proportion borne by its Available Tranche B Commitment to the Available Tranche B Facility immediately prior to the making of that Tranche B Advance. |
6.2.4 | Subject to Clause 6.2.5 below, each Tranche C Facility Lender will participate through its Facility Office in each Tranche C Advance made pursuant to Clause 6.1 (Drawdown of Advances) in the proportion borne by its Available Tranche C Commitment to the Available Tranche C Facility immediately prior to the making of that Tranche C Advance. |
6.2.5 | For so long as Industrial and Commercial Bank of China (Macau) Limited is a (or the sole) Tranche C Facility Lender, such Tranche C Facility Lender shall not be required to comply with Clause 6.2.4 above until the date on which it and the Company have each executed the Tranche C Facility Letter. |
6.3 | Reduction of Available Commitment |
7. | REPAYMENT |
7.1 | Repayment |
7.2 | Final maturity |
7.3 | No re-borrowing |
8. | PREPAYMENT AND CANCELLATION |
9. | INTEREST |
9.1 | Calculation of Interest |
9.1.1 | the Margin; and |
9.1.2 | LIBOR (in the case of a Tranche A Advance) or HIBOR (in the case of a Tranche B Advance or a Tranche C Advance). |
9.2 | Payment of interest |
9.3 | Default Interest |
10. | INTEREST PERIODS |
11. | NOTIFICATION |
11.1 | Advances |
11.2 | Interest rate determination |
11.3 | Changes to interest rates |
11.4 | Interest payment and repayment instalments |
12. | [NOT USED] |
13. | CHANGES TO THE PARTIES |
13.1 | Transfers by the Term Facility Agent |
13.2 | Transfers by the Company |
13.3 | Transfers by the Term Facility Lenders |
13.4 | Assignment and Transfer Fees |
14. | PAYMENTS |
14.1 | Payments |
14.1.1 | All payments under this Agreement shall be made in accordance with clause 26 (Payment Mechanics) of the Common Terms Agreement. |
14.1.2 | Subject to clause 26 (Payment Mechanics) of the Common Terms Agreement, on each date on which this Agreement requires an amount to be paid by the Company or a Term Facility Lender, the Company or, as the case may be, such Term Facility Lender shall make the same available to the Term Facility Agent for value on such due date and at such time and in such funds and to such account with such bank as the Term Facility Agent shall specify from time to time. |
14.2 | Partial Payments |
14.2.1 | If the Term Facility Agent receives a payment that is insufficient to discharge all the amounts then due and payable by the Company to the Term Facility Lenders under the Term Facility Finance Documents, the Term Facility Agent shall apply that payment towards the obligations of the Company under the Term Facility Finance Documents in the following order: |
(a) | first, in or towards payment pro rata of all amounts paid by the Term Facility Lenders under clause 23.15 (Indemnity to Intercreditor Agent) of the Common Terms Agreement but which have not been reimbursed by the Company; |
(b) | secondly, in or towards payment pro rata of all amounts paid by the Term Facility Lenders under Clause 15.3 (Indemnity to Term Facility Agent) but which have not been reimbursed by the Company; |
(c) | thirdly, in or towards payment pro rata of all costs and expenses incurred by the Term Facility Lenders which the Company is obliged to reimburse; |
(d) | fourthly, in or towards payment pro rata of all accrued but unpaid fees and commissions due to the Term Facility Lenders under the Term Facility Finance Documents; |
(e) | fifthly, in or towards payment pro rata of all accrued but unpaid interest (including default interest) due to the Term Facility Lenders under the Term Facility Finance Documents; |
(f) | sixthly, in or towards payment pro rata of any principal due to the Term Facility Lenders under the Term Facility Finance Documents but unpaid; and |
(g) | seventhly, in or towards payment pro rata of any other sum due to the Term Facility Lenders under the Term Facility Finance Documents but unpaid. |
14.2.2 | The Term Facility Agent shall, if so directed by the Majority Term Facility Lenders, vary the order set out in sub-clause 14.2.1 above. |
14.2.3 | Sub-clause 14.2.1 above will override any appropriation made by the Company. |
15. | DECISION MAKING AMONGST TERM FACILITY LENDERS |
15.1 | Decisions |
15.2 | Failure to Give Instructions |
15.3 | Indemnity to Term Facility Agent |
15.3.1 | Each Term Facility Lender shall, rateably in accordance with the proportion that the US dollar equivalent of the sum of its Available Commitments and its participations in any outstanding Term Facility Advances bear to the US dollar equivalent of the aggregate of the Available Commitments and such participations of all the Term Facility Lenders (or, if all such amounts have been reduced to zero, such proportion determined immediately prior to such reduction) for the time being, indemnify the Term Facility Agent, within fifteen days of demand, against any cost, loss or liability incurred by the Term Facility Agent (other than by reason of the negligence or wilful misconduct of the Term Facility Agent) in acting as Term Facility Agent under any of the Senior Finance Documents (unless the Term Facility Agent has been reimbursed by the Company pursuant to a Senior Finance Document). |
15.3.2 | Provided that the Company is required to reimburse or indemnify the Term Facility Agent for such cost, loss or liability in accordance with the terms of the Senior Finance Documents, the Company shall, within fifteen days of demand in writing by any Term Facility Lender, indemnify such Term Facility Lender in relation to any payment actually made by such Term Facility Lender pursuant to Clause 15.3.1 above. |
16. | COUNTERPARTS |
17. | GOVERNING LAW |
18. | JURISDICTION |
18.1 | Jurisdiction of English courts |
18.1.1 | The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or the consequences of its nullity) (a "Dispute"). |
18.1.2 | The parties hereto agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly they will not argue to the contrary. |
18.1.3 | This Clause 18.1 is for the benefit of the Term Facility Finance Parties only. As a result, no Term Facility Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law and the Senior Finance Documents, the Term Facility Finance Parties may take concurrent proceedings in any number of jurisdictions. |
18.2 | Service of process |
18.2.1 | irrevocably appoints Law Debenture Corporate Services Limited as its agent for service of process in relation to any proceedings before the English courts in connection with this Agreement; and |
18.2.2 | agrees that failure by a process agent to notify the Company of the process will not invalidate the proceedings concerned. |
Term Facility Lender | Tranche A Commitment (USD) | Tranche B Commitment (HKD) | Tranche C Commitment (HKD) |
Bank of China Limited, Macau Branch | 1,305,000,000 | 6,208,800,000 | 1,560,000,000 |
Total | 1,305,000,000 | 6,208,800,000 | 1,560,000,000 |
Repayment Date | Percentage (%) |
The 13th Quarterly Date falling after the Fifth Amendment Effective Date | 21/2 |
The 14th Quarterly Date falling after the Fifth Amendment Effective Date | 21/2 |
The 15th Quarterly Date falling after the Fifth Amendment Effective Date | 21/2 |
The 16th Quarterly Date falling after the Fifth Amendment Effective Date | 21/2 |
The 17th Quarterly Date falling after the Fifth Amendment Effective Date | 41/2 |
The 18th Quarterly Date falling after the Fifth Amendment Effective Date | 41/2 |
The 19th Quarterly Date falling after the Fifth Amendment Effective Date | 41/2 |
The 20th Quarterly Date falling after the Fifth Amendment Effective Date | 41/2 |
The 21st Quarterly Date falling after the Fifth Amendment Effective Date | 71/3 |
The 22nd Quarterly Date falling after the Fifth Amendment Effective Date | 71/3 |
The 23rd Quarterly Date falling after the Fifth Amendment Effective Date | 71/3 |
The 24th Quarterly Date falling after the Fifth Amendment Effective Date or, if earlier, the Final Repayment Date | 50 |