AMENDED AND RESTATED NOTE PURCHASE AGREEMENT

Exhibit 10.6

 

 

WYNN RESORTS (MACAU) S.A.

 

7.5% Subordinated Notes

 

Maximum Aggregate Amount – $122,000,000

 

 

AMENDED AND RESTATED NOTE PURCHASE AGREEMENT

 

 

Dated September 14, 2005

 

TABLE OF CONTENTS

 

 

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Wynn Resorts (Macau) S.A.

335-341 Alameda Dr. Carlos D’Assumpção

9th Floor, Hotline Center

Macau

 

7.5% Subordinated Notes

 

September 14, 2005

 

Wynn Group Asia, Inc.

3131 Las Vegas Boulevard South

Las Vegas, Nevada 89109

USA

 

Ladies and Gentlemen:

 

Wynn Resorts (Macau) S.A., a company organized under the laws of the Macau Special Administrative Region of the People’s Republic of China (the “Company” ), agrees with Wynn Group Asia, Inc., a Nevada corporation ( “you” or “Purchaser” ) as follows:

 

The Company previously authorized the issuance and sale of at least $122,000,000 aggregate principal amount of its 7.5% Subordinated Notes pursuant to that certain Note Purchase Agreement between the Company and the Purchaser dated September 14, 2004 ( “Original NPA” ). Under the Original NPA, the Company previously sold, and the Purchaser purchased, a note in the aggregate principal amount of $50,000,000 pursuant to a certain “7.5% Subordinated Note Due 2012” dated August 24, 2005 (the “Previous Note” ).

 

The Company and the Purchaser desire to amend and restate the Original NPA in order to modify certain provisions related to the sale and purchase of the Previous Note and the Notes (as defined herein). The Company and the Purchaser agree that this Amended and Restated Note Purchase Agreement (this “Agreement” ) supercedes and replaces the Original NPA in its entirety.

 

1.	AUTHORIZATION OF NOTES

 

The Company will authorize the issuance and sale of at least $80,000,000, and up to $122,000,000, aggregate principal amount of its 7.5% Subordinated Notes (the “Notes” , such term to include the Previous Note and any notes issued in substitution for any notes issued pursuant to this Agreement). The principal amount of the Previous Note shall be included within the aggregate amount of Notes issued and sold, or to be issued and sold, by the Company hereunder. The Notes shall be substantially in the form set out in Exhibit 1, with such changes therefrom, if any, as may be agreed to by you and the Company (and the Previous Note shall be in the form so issued). Certain capitalized terms used in this Agreement are defined in Schedule A. References to a “Schedule” or an “Exhibit” are, unless otherwise specified, to a Schedule or an Exhibit to this Agreement.

 

2.	SALE AND PURCHASE OF NOTES

 

Subject to the terms and conditions of this Agreement, the Company will issue and sell to you and you will purchase from the Company, at the Closing(s) provided for in Section 3,

 

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Notes in at least $80,000,000, and up to $122,000,000, aggregate principal amount at the purchase price of 100% of the principal amount thereof. The Company and the Purchaser hereby acknowledge and agree that the Previous Note constitutes part of the Notes issued and sold, or to be issued and sold, under this Agreement and is included within aggregate principal amount of Notes issued and sold, or to be issued and sold by the Company and purchased by the Purchaser hereunder.

 

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CLOSING

 

The sale and purchase of the Notes shall occur at the offices of the Company, in such amounts, on such days and at such times as requested by the Company in one or more written notices (each, a “Drawdown Notice” ) delivered to you at least 5 days prior to the requested date, at one or more closings (each, a “Closing” ), or in such other amount, at such other place, day or time as may be agreed upon by the Company and you. Each Drawdown Notice shall request a draw of at least $5,000,000 and no more than $72,000,000. At each Closing the Company will deliver to you the Note to be purchased by you at such Closing in the form of a single Note dated the date of such Closing and registered in your name, against delivery by you to the Company or its order of immediately available funds in the amount of the purchase price therefor by wire transfer for the account of the Company to such account number as may be notified in writing by the Company.

 

4.	CONDITIONS TO CLOSING

 

Your obligation to purchase and pay for any additional Notes to be sold to you at the relevant Closing is subject to the fulfillment, prior to or at the relevant Closing, of the following conditions:

 

4.1.	Representations and Warranties

 

The representations and warranties of the Company in this Agreement shall be true and correct in all material respects on the date of this Agreement and at the time of the Closing (unless any such representation or warranty is expressly stated to be given as of a different date).

 

4.2.	Performance; No Default

 

The Company shall have performed and complied in all material respects with all agreements and conditions contained in this Agreement required to be performed or complied with by it prior to or at the relevant Closing. There shall not have occurred and be continuing an Event of Default under this Agreement or the Senior Loan Facilities.

 

4.3.	Compliance Certificates

 

(a) Officer’s Certificate . The Company shall have delivered to you an Officer’s Certificate, dated the date of the Closing, certifying that the conditions specified in Sections 4.1 and 4.2 have been fulfilled.

 

(b) Secretary’s Certificate . The Company shall have delivered to you a certificate certifying as to the resolutions attached thereto and other corporate proceedings relating to the authorization, execution and delivery of the Notes and the Agreement.

 

4.4.	Purchase Not Prohibited By Applicable Law, etc.

 

On the date of the Closing your purchase of Notes shall (i) not be prohibited by the laws and regulations of the Macau Special Administrative Region of the People’s Republic of China, the United States of America and the State of Nevada and (ii) not violate any applicable law or regulation that could reasonably be expected to restrain, prevent or otherwise impose materially adverse conditions on the issuance of the Notes.

 

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4.5.	Base Equity

 

Not less than $230,000,000 shall have been irrevocably and unconditionally contributed as “Base Equity” (as defined in the Common Terms Agreement) to the Company.

 

4.6.	Litigation

 

There shall not be pending or, to our knowledge, threatened, any action, suit, investigation, litigation or proceeding in any court or before any arbitrator or governmental instrumentality that would reasonably be expected to have a material adverse effect on the issuance of or performance of the Notes.

 

5.	REPRESENTATIONS AND WARRANTIES OF THE COMPANY

 

The Company represents and warrants to you that:

 

5.1.	Organization; Power and Authority

 

The Company has been duly organized and is validly existing as a company under the laws of the Macau Special Administrative Region of the People’s Republic of China, with power and authority to own or lease and operate its properties and conduct its business and to enter into and to perform its obligations under this Agreement and the Notes.

 

5.2.	Authorization, etc.

 

The execution and delivery of, and the performance by the Company of its obligations under, this Agreement and the Notes have been duly and validly authorized by all necessary action on the part of the Company, and this Agreement has been, and each Note will be at the Closing, duly executed and delivered by the Company.

 

5.3.	Enforceability

 

Assuming due and valid authorization, execution and delivery thereof by you, this Agreement is, and when issued and delivered in accordance with the terms of this Agreement, each Note will be, a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting enforcement of creditors’ rights generally and (ii) the availability of the remedy of specific performance or injunctive or other forms of equitable relief may be subject to equitable defenses and would be subject to the discretion of the court before which any proceeding therefor may be brought.

 

5.4.	No Material Adverse Change

 

There is no action, suit, claim or proceeding pending or, to the knowledge of the Company, threatened (A) against the Company or (B) that has as the subject thereof any officer or director of, or property owned or leased by or to, the Company, in each case, before any court or administrative agency or otherwise where, in any such case, there is both a reasonable possibility of such action, suit or proceeding being determined adversely to the Company and where any such action, suit, claim or proceeding, if so determined adversely, would reasonably be expected to result in a Material Adverse Change, or prevent, adversely affect, hinder or delay the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder or under the Notes.

 

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6.	REPRESENTATIONS OF THE PURCHASER

 

You represent and warrant to the Company that:

 

6.1.	Organization; Power and Authority

 

Purchaser has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of organization, with power and authority to enter into and to perform its obligations under this Agreement.

 

6.2.	Authorization, etc.

 

The execution and delivery of, and the performance by Purchaser of its obligations under, this Agreement have been duly and validly authorized by all necessary action on its part, and Purchaser has duly executed and delivered this Agreement.

 

6.3.	Enforceability

 

Assuming due and valid authorization, execution and delivery thereof by the Company, this Agreement is a valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting enforcement of creditors’ rights generally and (ii) the availability of the remedy of specific performance or injunctive or other forms of equitable relief may be subject to equitable defenses and would be subject to the discretion of the court before which any proceeding therefor may be brought.

 

7.	PREPAYMENT OF THE NOTES

 

7.1.	Mandatory Prepayments

 

From and after the date on which all obligations under the Senior Loan Facilities have been discharged, the mandatory prepayment provisions of Schedule 9 of the Common Terms Agreement (or the prepayment provisions of any amended, supplemental, refinanced or replacement Senior Loan Facilities) shall apply mutatis mutandis to the Notes where the context permits such construction, and to the extent the context does not permit such construction, such provisions shall apply as closely as possible under the circumstances.

 

7.2.	Mandatory Disposition or Redemption Pursuant to Gaming Laws

 

Notwithstanding any other provision hereof, if any Gaming Authority requires a holder or beneficial owner of Notes to be licensed, qualified or found suitable under any applicable Gaming Law and the holder or beneficial owner (1) fails to apply for a license, qualification or finding of suitability within 30 days after being requested to do so (or such lesser period as required by the Gaming Authority), or (2) is notified by a Gaming Authority that it shall not be licensed, qualified or found suitable, the Company shall have the right, at its option, to:

 

(a) require the holder or beneficial owner to dispose of its Notes within 30 days (or such lesser period as required by the Gaming Authority) following the earlier of:

 

(1) the termination of the period described above for the holder or beneficial owner to apply for a license, qualification or finding of suitability; or

 

(2) the receipt of the notice from the Gaming Authority that the holder or beneficial owner shall not be licensed, qualified or found suitable by the Gaming Authority; or

 

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(b) redeem the Notes of the holder or beneficial owner at a redemption price equal to:

 

(1) the price determined by the Gaming Authority; or

 

(2) if the Gaming Authority does not determine a price, the lesser of:

 

(A) the principal amount of the Notes; and

 

(B) the price that the holder or beneficial owner paid for the Notes,

 

and in the case of (A) or (B), together with accrued and unpaid interest on the Notes to the earlier of (1) the date of redemption or such earlier date as is required by the Gaming Authority or (2) the date of the finding of unsuitability by the Gaming Authority, which may be less than 30 days following the notice of redemption. Immediately upon a determination by a Gaming Authority that a holder or beneficial owner of Notes shall not be licensed, qualified or found suitable, the holder or beneficial owner shall not have any further rights with respect to the Notes to:

 

(i) exercise, directly or indirectly, through any Person, any right conferred by the Notes, this Agreement or the Deed of Appointment and Priority; or

 

(ii) receive any interest or any other distribution or payment with respect to the Notes, or any remuneration in any form from the Company for services rendered or otherwise, except the redemption price of the Notes.

 

The Company is not required to pay or reimburse any holder or beneficial owner of Notes who is required to apply for such license, qualification or finding of suitability for the costs relating thereto. Those expenses shall be the obligation of the holder or beneficial owner.

 

7.3.	Optional Prepayments

 

The Company may, at its option, upon notice as provided below, prepay at any time all, or from time to time any part of, the Notes at 100% of the principal amount so prepaid, without premium. The Company will give you written notice of each optional prepayment under this Section 7.3 not less than 7 days and not more than 30 days prior to the date fixed for such prepayment. Each such notice shall specify such date, the aggregate principal amount of the Notes to be prepaid on such date, and the interest to be paid on the prepayment date with respect to such principal amount being prepaid.

 

7.4.	Maturity; Surrender, etc.

 

In the case of each prepayment of Notes pursuant to this Section 7, the principal amount of each Note to be prepaid shall mature and become due and payable on the date fixed for such prepayment, together with interest on such principal amount accrued to such date. From and after such date, unless the Company shall fail to pay such principal amount when so due and payable, together with the interest, as aforesaid, interest on such principal amount shall cease to accrue. Any Note paid or prepaid in full shall be surrendered to the Company and cancelled.

 

8.	COVENANTS OF THE COMPANY

 

8.1.	Senior Loan Facilities Covenants

 

The covenants of Schedule 5 of the Common Terms Agreement (or the covenants of any amended, supplemented, refinanced or replacement Senior Loan Facilities) shall apply mutatis mutandis to the Notes where the context permits such construction, and to the extent the context does not permit such construction, such provisions shall apply as closely as possible under the

 

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circumstances. Any and all waivers, consents or approvals made or given, or deemed given, by the holders of the Senior Indebtedness (or any agent or adviser acting on their behalf) under the Senior Loan Facilities shall apply to the Notes with the same effect as if the waiver had been given by the holders of the Notes.

 

8.2.	Aggregate Principal Amount of Senior Indebtedness

 

Notwithstanding Section 8.1, the Company shall not amend, supplement, refinance or replace the Senior Loan Facilities such that the principal amount of funded Senior Indebtedness outstanding at any time exceeds $1,200,000,000 (or if the Company incurs Financial Indebtedness (as defined in the Common Terms Agreement) permitted under paragraph 2(f) of Schedule 5, Part B of the Common Terms Agreement, $1,200,000,000 plus an amount being 150% of the aggregate amount of such Financial Indebtedness incurred by the Company).

 

9.	COVENANTS OF THE HOLDERS OF NOTES

 

It is the express intention of the parties that the Company is entitled to have outstanding at any time up to $1,200,000,000 (or if the Company incurs Financial Indebtedness (as defined in the Common Terms Agreement) permitted under paragraph 2(f) of Schedule 5, Part B of the Common Terms Agreement, $1,200,000,000 plus an amount being 150% of the aggregate amount of such Financial Indebtedness incurred by the Company) aggregate principal amount of funded Senior Indebtedness. To this end, each holder of Notes shall cooperate with the Company in its incurrence of Senior Indebtedness by taking all actions requested by the Company to facilitate such incurrence, including, without limitation, entering into intercreditor agreements that, taken as a whole, are not less favorable to the holders of Notes than the terms of the Deed of Appointment and Priority.

 

10.	EVENTS OF DEFAULT

 

The events of default in Schedule 10 of the Common Terms Agreement (or the events of default of any amended, supplemented, refinanced or replacement Senior Loan Facilities) (each, an “Event of Default” ) shall apply mutatis mutandis to the Notes where the context permits such construction, and to the extent the context does not permit such construction, such provisions shall apply as closely as possible under the circumstances. Any and all waivers of a Default or an Event of Default given, or deemed given, by the holders o