REVOLVING CREDIT FACILITY AGREEMENT AMENDMENT AGREEMENT

Exhibit 10.9

 

DATED 14 SEPTEMBER 2005

 

WYNN RESORTS (MACAU) S.A.

as Company

 

and

 

CERTAIN FINANCIAL INSTITUTIONS

as Revolving Credit Facility Lenders

 

 

REVOLVING CREDIT FACILITY AGREEMENT

AMENDMENT AGREEMENT

 

CONTENTS

 

THIS AGREEMENT is made on 14 September 2005 between:

 

(1)	WYNN RESORTS (MACAU) S.A . (the “ Company ”); and

 

(2)	THE FINANCIAL INSTITUTIONS named on the signing pages as Revolving Credit Facility Lenders.

 

RECITALS:

 

(A)	The Company proposes to expand the Original Project.

 

(B)	The Secured Parties have agreed to amend certain Finance Documents and enter into additional Finance Documents and the Lenders have agreed to increase the size of certain of the Facilities originally provided thereunder in connection with the Expansion.

 

(C)	It has been agreed to amend the Revolving Credit Facility Agreement as set out below.

 

IT IS AGREED as follows:

 

1.	DEFINITIONS AND INTERPRETATION

 

1.1	Incorporation of defined terms

 

(a)

Unless a contrary indication appears, a term defined in or by reference in the Schedule has the same meaning in this Agreement.

 

(b)

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.

 

1.2

Clauses

 

In this Agreement any reference to a “Clause” or a “Schedule” is, unless the context otherwise requires, a reference to a Clause or a Schedule to this Agreement.

 

2.

AMENDMENT

 

The Revolving Credit Facility Agreement shall be amended so that it shall be read and construed for all purposes as set out in the Schedule ( Amended Revolving Credit Facility Agreement ).

 

3.	CONTINUITY AND FURTHER ASSURANCE

 

3.1	Continuing obligations

 

The provisions of the Revolving Credit Facility Agreement shall, save as amended by this Agreement, continue in full force and effect.

 

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3.2	Further assurance

 

The Company shall, upon the written request of any Revolving Credit Facility Lender and at its own expense, do all such acts and things reasonably necessary to give effect to the amendments effected or to be effected pursuant to this Agreement.

 

4.	MISCELLANEOUS

 

4.1	Incorporation of terms

 

The provisions of clause 1.3 ( Third Party Rights ), clause 1.4 ( Non-recourse Liability ) and clause 17 ( Jurisdiction ) of the Schedule shall be incorporated into this Agreement as if set out in full in this Agreement and as if references in those clauses to “Agreement” are references to this Agreement and cross-references to specified clauses thereof are references to the equivalent clauses set out or incorporated herein.

 

4.2	Counterparts

 

This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.

 

5.	GOVERNING LAW

 

This Agreement is governed by English law.

 

This Agreement has been entered into on the date stated at the beginning of this Agreement.

 

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SIGNATURES

 

The Company
WYNN RESORTS (MACAU) S.A.
By:		/s/ Matthew Maddox
Address:		335-341 Alameda Dr. Carlos d’ Assumpção
		9 th Floor
		Hotline Center
		Macau
Tel:		(853) 889-966
Fax:		(853) 329-966
Attention:		Matt Maddox
Copy to:
Wynn Resorts, Limited
Address:		3131 Las Vegas Boulevard South
		Las Vegas, Nevada 89109
		USA
Tel:		(1) 702-770-2111
Fax:		(1) 702-770-1520
Attention:		General Counsel
The Revolving Credit Facility Lenders
BANCO NACIONAL ULTRAMARINO, S.A.
By:		/s/ Herculano Sousa            /s/ Artur Santos
Address:		Avenida de Almeida Ribeiro
		No. 22
		Macau
Tel:		(853) 355-188/ (853) 355-828/ (853) 398-9134
Fax:		(853) 355-800/ (853) 356-867
Attention:		Ronald Kan Cheok Kuan/Vitor Rosário/Violet Choi

 

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BANCO COMERCIAL DE MACAU, S.A.
By:		/s/ Sam Tou            /s/ Kenneth Chan
Address:		Avenida da Praia Grande
		No. 572
		Macau
Tel:		(853) 7910-861/ (853) 7910-273
Fax:		(853) 580-967
Attention:		Sam Tou/Ida Chau
BANCO DELTA ASIA S.A.R.L.
By:		/s/ David Lau            /s/ Wong Kai Fun
Address:		Rua Do Campo
		No. 39-41
		Macau
Tel:		(853) 3958-200/ (853) 3958-505
Fax:		(853) 570-068/ (853) 3958-729
Attention:		Philip Ng/Alex Chou

 

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SCHEDULE

AMENDED REVOLVING CREDIT FACILITY AGREEMENT

 

DATED 14 SEPTEMBER 2004

 

WYNN RESORTS (MACAU) S.A.

as Company

 

and

 

THE REVOLVING CREDIT FACILITY LENDERS

referred to herein

 

 

REVOLVING CREDIT FACILITY AGREEMENT

(As amended by the Revolving Credit Facility Agreement

Amendment Agreement dated 14 September 2005)

 

 

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CONTENTS

 

 

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THIS AGREEMENT is made on 14 September 2004

 

BETWEEN:

 

(1)	WYNN RESORTS (MACAU) S.A. (the “ Company ”); and

 

(2)	THE FINANCIAL INSTITUTIONS listed in Schedule 1 ( Original Revolving Credit Facility Lenders ) as lenders (the “ Original Revolving Credit Facility Lenders ”).

 

WHEREAS:

 

The Revolving Credit Facility Lenders have agreed to make certain loan facilities available to the Company in connection with the Projects upon the terms and subject to the conditions set out in this Agreement and the Common Terms Agreement.

 

IT IS AGREED as follows:

 

1.	DEFINITIONS AND INTERPRETATION

 

1.1	Definitions

 

In this Agreement, unless otherwise defined herein, all terms defined in the Common Terms Agreement shall have the same meaning herein and in addition:

 

“ Advance Request ” means a request for an Advance in substantially the form set out in Schedule 2 ( Form of Advance Request for a Revolving Credit Facility Advance ).

 

“ Available Commitment ” means a Revolving Credit Facility Lender’s Commitment minus :

 

(a)

the aggregate amount of its participation in any outstanding Revolving Credit Facility Advances (other than, in relation to any proposed Revolving Credit Facility Advance, such Revolving Credit Facility Lender’s participation in any Revolving Credit Facility Advances that are due to be repaid or prepaid on or before the proposed Advance Date); and

 

(b)

in relation to any proposed Revolving Credit Facility Advance, the aggregate amount of its participation in any Revolving Credit Facility Advances that are due to be made on or before the proposed Advance Date,.

 

“ Available Facility ” means, at any time, the aggregate for the time being of each Revolving Credit Facility Lender’s Available Commitment.

 

“ Commitment ” means at any time:

 

(a)

in relation to an Original Revolving Credit Facility Lender, the amount set out opposite its name under the heading “Commitment” in Schedule 1 ( Original Revolving Credit Facility Lenders ) and the amount of any other Commitment transferred to it pursuant to Clause 12.2 ( Transfers by the Revolving Credit Facility Lenders ); and

 

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(b)

in relation to any other Revolving Credit Facility Lender, the amount of any Commitment transferred to it pursuant to Clause 12.2 ( Transfers by the Revolving Credit Facility Lenders ),

 

to the extent not cancelled, reduced or transferred by it pursuant to this Agreement or the Common Terms Agreement (including Clause 8 ( Repayments, Prepayments and Cancellation ) and Clause 14 ( Illegality ) of the Common Terms Agreement).

 

“ Common Terms Agreement ” means the common terms agreement dated 14 September 2004 and made between, among others, the Company, the financial institutions defined therein as Hotel Facility Lenders, Project Facility Lenders and Revolving Credit Facility Lenders, the Hotel Facility Agent, the Project Facility Agent, the Intercreditor Agent and the Security Agent.

 

“ HIBOR ” means, in relation to any Revolving Credit Facility Advance:

 

(a)

the applicable Screen Rate; or

 

(b)

(if no Screen Rate is available for HK dollars or the Interest Period of that Advance) the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Revolving Credit Facility Lenders (at the request of any Revolving Credit Facility Lender) quoted by the Reference Banks to leading banks in the Hong Kong interbank market,

 

at or about 11.00 am (Hong Kong time) on the Quotation Day for the offering of deposits in HK dollars for a period comparable to the Interest Period for that Advance.

 

“ Interest Period ” means, in relation to an Advance, each period determined in accordance with Clause 10 ( Interest Periods ).

 

“ Majority Revolving Credit Facility Lenders ” means:

 

(a)

if there are no Revolving Credit Facility Advances then outstanding, a Revolving Credit Facility Lender or Revolving Credit Facility Lenders whose Available Commitments aggregate more than 50% of the Available Facility (or, if all Available Commitments have been reduced to zero, aggregated more than 50% of the Available Facility immediately prior to the reduction); or

 

(b)

at any other time, a Revolving Credit Facility Lender or Revolving Credit Facility Lenders whose participations in the Revolving Credit Facility Advances then outstanding aggregate more than 50% of all the Revolving Credit Facility Advances then outstanding.

 

“ Margin ” means 2.50% per annum.

 

“ Quotation Day ” means, in relation to any period for which an interest rate is to be determined, the first day of that period.

 

“ Reference Banks ” means the principal office in Hong Kong of Deutsche Bank AG, Société Générale and Citibank, N.A., or such other banks as may be appointed by the

 

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Majority Revolving Credit Facility Lenders with, if such designation is made prior to an occurrence of an Event of Default which is continuing, the consent of the Company.

 

“ Revolving Credit Facility ” means the revolving loan facility made available under this Agreement as described in Clause 3 ( The Facility ).

 

“ Revolving Credit Facility Advance ” means an Advance made or to be made under the Revolving Credit Facility or the principal amount outstanding for the time being of that Advance including a Rollover Advance.

 

“ Revolving Credit Facility Lender ” means any commercial bank, financial institution or other entity which:

 

(a)

is named in Schedule 1 (Original Revolving Credit Facility Lenders); or

 

(b)

has become a party hereto in accordance with Clause 12 ( Changes to the Parties ),

 

and which has not ceased to be a party hereto in accordance with the terms hereof.

 

“ Revolving Credit Facility Finance Documents ” means:

 

(a)

this Agreement;

 

(b)

the Common Terms Agreement;

 

(c)

any other Senior Finance Document to which a Revolving Credit Facility Lender is a party in its capacity as a Revolving Credit Facility Lender; and

 

(d)

any other document designated as such by the Revolving Credit Facility Lenders and the Company.

 

“ Rollover Advance ” means one or more Revolving Credit Facility Advances:

 

(a)

made or to be made on the same day that a maturing Revolving Credit Facility Advance is due to be repaid;

 

(b)

the aggregate amount of which is equal to or less than the maturing Revolving Credit Facility Advance; and

 

(c)

made or to be made to the Company for the purpose of refinancing a maturing Revolving Credit Facility Advance.

 

“ Screen Rate ” means, in relation to HIBOR, the rate designated as “FIXING@11:00” (or any other designation which may from time to time replace that designation or, if no such designation appears, the arithmetic average (rounded upwards, to four decimal places) of the displayed rates for the relevant period) appearing under the heading “HONG KONG INTERBANK OFFERED RATES (HK DOLLAR)” on the Reuters Screen HIBOR1=R Page.

 

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If the agreed page is replaced or service ceases to be available, the Majority Revolving Credit Facility Lenders may specify another page or service displaying the appropriate rate after consultation with the Company.

 

“ Termination Date ” means the third anniversary of the Signing Date (as may be extended, by no more than a year at any time, with the consent of all of the Revolving Credit Facility Lenders) and which extension shall be notified to the In